Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 1 of 129 PageID #: 2820

NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawaii 96813 Telephone: (808) 521-2302 Fax: (808) 537-4268

ANDREW B. SPRENGER anspren@nhlchi.org SHARLA MANLEY shmanle@nhlchi.org

7681 8868

KAWAHITO SHRAGA & WESTRICK LLP 1990 S. Bundy Drive, Suite 280 Los Angeles, California 90025 Telephone: (310) 746-5300 Fax: (310) 593-2520

JAMES KAWAHITO jkawahito@kswlawyers.com SHAWN C. WESTRICK swestrick@kswlawyers.com

9099 235313

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, and ELLINGTON KEAWE,
Plaintiffs,
vs.

CIVIL NO. 11-00144 LEK/BMK (Declaratory and Injunctive Relief and Other Civil Action)
SECOND AMENDED COMPLAINT FOR DAMAGES AND FOR CLASSWIDE DECLARATORY AND INJUNCTIVE RELIEF

NEIL ABERCROMBIE, in his official capacity as the Governor of the State of

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 2 of 129 PageID #: 2821
Hawaii; TED SAKAI, in his official capacity as Director of the Hawaii Department of Public Safety, CORRECTIONS CORPORATION OF AMERICA,
Defendants.
SECOND AMENDED COMPLAINT FOR DAMAGES AND FOR CLASSWIDE DECLARATORY AND INJUNCTIVE RELIEF PRELIMINARY STATEMENT
This is a civil rights action for declaratory and injunctive relief and damages, which was originally filed in the Circuit Court of First Circuit Court, State of Hawaii, as Civil No. 11-1-0266-02 RMB , but was properly removed to this Court by Defendants on March 8, 2011 pursuant to 28 USC §§ 1441 and 1446 and Rules 11 and 81(c) of the Federal Rules of Civil Procedure.
Plaintiffs, and other similarly situated individuals, are Native Hawaiian religious practitioners who have been incarcerated under the laws of the State of Hawaii, but are currently serving their terms of sentence in for-profit private prisons under various governmental contracts with the State of Hawaii.
Native Hawaiians, the indigenous people of Hawaii, are an over-represented group in these privately-operated prison facilities. Many of them practice spiritual beliefs first established by their ancestors, who exercised sovereignty over the area that now comprises the state of Hawai‘i.
2

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 3 of 129 PageID #: 2822
The State of Hawaii, through its elected and appointed officials, is allowing its private prison subcontractor to operate without any oversight, authority and/or control to protect its inmates. Consequently, the Defendants’ deliberate actions and/or omissions have resulted in a violation of Plaintiffs’ rights to exercise their religion as secured by the Hawaii State Constitution and state laws, and in violation of the United States Constitution and federal laws protecting their civil rights.
Plaintiffs ask this Court to address this wrong. This Court has jurisdiction to declare that the Defendants have violated the U.S. Constitution and federal laws and also violated the Hawaii State Constitution and state laws. Plaintiffs seek to enjoin Defendants from exercising a policy that causes such injury upon the Plaintiffs, and other similarly situated individuals as a class. Plaintiffs are also entitled to seek damages caused by Defendants’ violations.
JURISDICTION AND VENUE 1. This Court has jurisdiction over the Federal Constitutional and Federal Statutory claims pursuant to 28 U.S.C. §1331 and §1343. 2. This Court has jurisdiction over Plaintiffs’ Hawaii State law claims pursuant to 28 U.S.C. § 1367.
3

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 4 of 129 PageID #: 2823
3. There is an actual controversy between the Plaintiff and the Defendants within the meaning of the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57.
4. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1 et seq. (“RLUIPA”).
5. This action also arises under the Constitution and laws of the State of Hawaii, including Article 1, §§ 4 and 5, and Article XII, § 7 of the Hawaii State Constitution and Hawaii Revised Statutes §§ 1-1 603-21.9(1), (6) and 603-2.
6. Venue is proper in this Court pursuant to 28 USC § 1441(a) as this Court embraces the District to which the Defendants removed Plaintiffs’ State of Hawaii action.
THE PARTIES 7. Plaintiffs are, and were at all times mentioned herein, an adult citizen of the United States of America, and a resident of the state of Hawaii. 8. Plaintiffs are descendants of the aboriginal people who, before 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii. 9. Plaintiffs has been convicted of violating crimes under Hawaii state law and sentenced under the same.
4

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 5 of 129 PageID #: 2824
10. In or around 2007, Plaintiffs were involuntarily transferred from either the State of Hawaii or from various private prisons owned and operated by Defendant Corrections Corporation of America (“CCA”) to one of two of its private prisons in Eloy, Arizona pursuant to various contracts with the State of Hawaii and the Corrections Corporation of America.
11. Plaintiffs are persons residing in or confined to an institution for purposes of RLUIPA.
12. Each member of the Plaintiff class is an identifiable person (a) who was convicted of violating crimes under the laws of the state of Hawaii and was a resident of the state of Hawaii; (b) and who has resided in or was confined to a CCA-operated facility at any time within four years prior to the filing of this Complaint until the resolution of this lawsuit; (c) and who declares that Native Hawaiian religion is their faith. Each member of the class and subclass are persons residing in or confined to an institution for purposes of RLUIPA.
13. Defendant NEIL ABERCROMBIE, Governor of the State of Hawaii, is the chief executive of the State of Hawaii, and is capable of being sued in this Court. Defendant ABERCROMBIE is responsible for the supervision and management of all state instrumentalities and employees charged with (a) executing the State of Hawaii’s prison regulations and procedures; and (b)
5

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 6 of 129 PageID #: 2825
monitoring out-of-state public and private correctional facilities where Hawaii state inmates are serving their sentences.
14. Defendant TED SAKAI, the Director of the State of Hawaii Department of Public Safety, is sued in her official capacity as the state official responsible for overseeing the implementation of Chapter 353 of the Hawaii Revised Statutes, and more particularly, H.R.S. § 353-16.2 which concerns the oversight of those committed persons from the State of Hawaii who have been transferred to out-of-state institutions pursuant to contract with the State of Hawaii, including, but not limited to all policies relating to those committed persons’ freedom to practice their respective religions while in custody.
15. Unless otherwise specified in this Complaint, Defendants NEIL ABERCROMBIE, and TED SAKAI are collectively referred to as “Defendants STATE OF HAWAII.”
16. As the primary legal custodian of those individuals incarcerated under its criminal statutes, Defendants STATE OF HAWAII must guarantee to those individuals the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system, including those State
6

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 7 of 129 PageID #: 2826
of Hawaii committed persons who have been transferred to out-of-state institutions pursuant to contract with the State of Hawaii.
17. Defendant CCA is a private, for-profit corporation organized under the laws of the State of Tennessee. CCA manages and operates Saguaro and Red Rock Correctional Facilities (“SCF” and “RRCF,” respectively), which presently supervises and controls committed persons convicted and sentenced under Hawaii state laws pursuant to various contracts executed with the Defendants STATE OF HAWAII in exchange for substantial payments made by the State of Hawaii for this service.
18. Since at least 2002, Defendant CCA and the Defendants STATE OF HAWAII have been parties to various contracts executed in the State of Hawaii in which Defendant CCA accepted responsibility of supervising and controlling those individuals who have been convicted and sentenced under the criminal statutes of the State of Hawaii and have been involuntarily transferred by Defendants STATE OF HAWAII to CCA prison facilities in exchange for substantial payments made by the State of Hawaii.
19. Based upon previous contractual relations with the State of Hawaii and based upon its present contracts with the State of Hawaii, Defendant CCA has sufficient and material contacts with the State of Hawaii and has therefore
7

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 8 of 129 PageID #: 2827
purposefully availed itself to the State pursuant to the State of Hawaii’s long-arm jurisdiction.
20. Moreover, Plaintiffs’ claims arise out of said contracts between the Defendants STATE OF HAWAII and Defendant CCA pursuant to the State of Hawaii’s long-arm jurisdiction.
21. As the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, Defendant CCA is charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF serve as instrumentalities of the Hawaii Department of Public Safety and are therefore state actors. Consequently, Defendant CCA and its employees of SCF and RRCF must guarantee to those individuals under its supervision and control the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system.
8

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 9 of 129 PageID #: 2828
CLASS ALLEGATIONS 22. Plaintiffs bring this action, on behalf of themselves and all other similarly situated persons, as a class action pursuant to Federal Rule of Civil Procedure 23. 23. The proposed Plaintiff Class is composed of and defined as:
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) and who have resided in or were confined to a CCA-operated facility at any time within two years prior to the filing of this Complaint until the resolution of this lawsuit; (c) and who declare that Native Hawaiian religion is their faith. 24. The proposed Segregation Subclass is composed of and defined as: (a) all persons residing in or confined to a CCA-operated facility at any time within two years prior to the filing of this complaint and until this lawsuit is resolved; (b) in segregation from the general population; and (c) who declare Native Hawaiian religion is their faith. 25. The proposed Plaintiff Class and Segregation Subclass consist of readily ascertainable persons who can be located using information in Defendants’ records. Defendants require that Plaintiffs and class members declare their religious faith through a registration process established by the facility. 26. The potential quantity of members of the proposed classes as defined is so numerous that joinder of all members would be unfeasible and impractical.
9

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 10 of 129 PageID #: 2829
Upon information and belief, there are approximately over one hundred and fifty members of the proposed Plaintiff Class. Upon information and belief, there are approximately thirty to fifty class members of the Segregation Subclass. As of November 2010, approximately 7% of the population at SCCF was registered as Native Hawaiian religious practitioners. As of November 2010, approximately 35% of the Hawaii inmates at RRCF registered was Native Hawaiian religious practitioners. The disposition of their claims through this class action will benefit both the parties and this Court.
27. Plaintiffs’ claims are typical of all persons who were convicted of violating crimes in Hawaii and were residents of the state of Hawaii residing in or confined to a CCA-operated facility and who declare that Native Hawaiian religion is their faith. Plaintiffs’ claims are also typical of persons residing in or confined to a CCA-operated facility, segregated from the general population, and who declare that their faith is Native Hawaiian religion. Plaintiffs’ claims are typical of those in this class because Defendants failed to provide Plaintiff and those similarly situated with the right to practice Native Hawaiian religion as required by federal law.
28. Plaintiffs will fairly and adequately represent the class members and will vigorously pursue this suit. Plaintiff possesses the requisite personal interest in the subject matter of the lawsuit. The classes are represented by counsel
10

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 11 of 129 PageID #: 2830
experienced in class action and civil rights litigation and in the statutory and constitutional provisions at issue in this case.
29. The nature of this action and the nature of the laws available to Plaintiff make use of the class action format a particularly efficient and appropriate procedure to afford relief to Plaintiff for the wrongs committed by Defendants.
30. Defendants have acted or refused to act on grounds generally applicable to all members of the class, making appropriate final declaratory and injunctive relief to the class as a whole.
31. There are common questions of law and fact as to the members of proposed Plaintiff Class and proposed Segregation Subclass which predominate over questions affecting only individual members of these classes. Questions of law and fact common to the class members in the classes include, but are not limited to, the following:
a) Whether Defendants’ conduct deprived and/or deprives class members of rights guaranteed under RLUIPA;
b) Whether Defendants’ conduct deprived and/or deprives class members of rights guaranteed by the United States Constitution and the Hawaii State Constitution;
c) Whether Plaintiffs and class members are entitled to the declaratory relief prayed for below;
11

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 12 of 129 PageID #: 2831
d) Whether Plaintiffs and class members are entitled to injunctive relief; and
e) The nature of such injunctive and declaratory relief. FACTUAL ALLEGATIONS
32. Upon information and belief, the federal government provides financial assistance to Defendants STATE OF HAWAII which is responsible for administering corrections in Hawaii.
33. Upon information and belief, in or around 2002, the Defendants STATE OF HAWAII executed one or more contracts with CCA delegating its statutory authority to supervise and monitor the custody of certain individuals who were convicted of violating crimes under Hawaii state law and sentenced under the same at a privately-owned correctional facility located in Eloy, Arizona.
34. On information and belief, Native Hawaiians make up the highest percentage of people incarcerated in CCA-operated facilities.
35. A recent study by the Office of Hawaiian Affairs concluded that Native Hawaiians constitute 41% of all persons incarcerated in out-of-state facilities like Saguaro Correctional Center and Red Rock Correctional Center. Native Hawaiians constitute 39% of the imprisoned population, although they make up 24% of the general population of Hawaii.
12

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 13 of 129 PageID #: 2832
36. Upon information and belief, in or around 2002, the Defendants STATE OF HAWAII executed one or more contracts with CCA delegating its statutory authority to supervise and monitor the custody of certain individuals who were convicted of violating crimes under Hawaii state law and sentenced under the same at a privately-owned correctional facility located in Eloy, Arizona.
37. Defendant CCA’s execution of those previous and current contracts with the Defendants STATE OF HAWAII has established substantial contacts with the State of Hawaii and has purposefully availed itself to the State of Hawaii concerning its scope of responsibility of supervision of Plaintiffs at CCA facilities.
38. Plaintiff RICHARD KAPELA DAVIS (“DAVIS”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2006, DAVIS was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA.
39. Plaintiff MICHAEL HUGHES (“HUGHES”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2006, HUGHES was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the
13

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 14 of 129 PageID #: 2833
STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA.
40. Plaintiff DAMIEN KAAHU (“KAAHU”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2006, KAAHU was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA.
41. Plaintiff KALAI K. POAHA (“POAHA”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2006, POAHA was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA.
42. Plaintiff ROBERT A. HOLBRON (“HOLBRON”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2006, HOLBRON was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA. Plaintiffs are informed and believe that
14

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 15 of 129 PageID #: 2834
HOLBRON’s security classification precludes him from the general population of inmates at SCF.
43. Plaintiff JAMES KANE III (“KANE”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2007, KANE was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to RRCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA. Plaintiffs are informed and believe that KANE’s security classification precludes him from the general population of inmates at SCF.
44. Plaintiff ELLINGTON KEAWE (“KEAWE”) was convicted of violating crimes under Hawaii state law and sentenced under the same. In or around 2007, KEAWE was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to RRCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA. Plaintiffs are informed and believe that KEAWE’s security classification precludes him from the general population of inmates at SCF.
45. Plaintiffs are Native Hawaiians whose religious and spiritual beliefs and practices originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
15

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 16 of 129 PageID #: 2835
46. A critical tenet of Native Hawaiian religion essential to the sincere expression of Plaintiffs’ faith is to congregate out of doors on a daily basis, preferably at dawn, to pule (pray), oli (chant), hula (dance), and perform other specific religious protocol activities.
47. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith is to participate in certain religious rituals and ceremonies marking the beginning and end of the Makahiki season, a four month period dedicated to Lono, the Hawaiian god of agriculture, fertility and peace.
48. The Makahiki season is signaled by the rising of the Makali`i (Pleiades) Constellation in October-November of each year. The Makahiki season ends by the setting of Makali`i (Pleiades) Constellation in February-March of each year.
49. The ceremonies marking the beginning and end of Makahiki Season includes the following customary and traditional activities critical to the Native Hawaiian faith: a) a sunrise service; b) a two-hour session dressing the image of Lono, and preparing offerings and giving offerings, including chanting and dancing; c) a one-hour procession; d) a 30-minute opening prayer; e) a 1.5-hour session of traditional games; f) a two-hour session of chanting, prayer, and an awa ceremony; g) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork,
16

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 17 of 129 PageID #: 2836
breadfruit, coconut, banana and the awa drink. These activities should be performed outdoors by all practitioners, as well as attendance and presence of a kahu or other religious leaders.
50. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith is to have access to the following sacred items required for specific religious protocol activities: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
51. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith is to establish an out-of-doors altar composed of at least two spiritually significant stones as a focal point for specific religious protocol activities.
52. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith is to regularly meet with a respected kahu (religious) leader to assist in their worship activities.
17

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 18 of 129 PageID #: 2837
53. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed to exercise their religion by gathering together on a regular basis to pray, chant, and perform other activities that are essential to expressing their faith without unreasonable disturbance and/or intrusion from employees of SCF or other inmates.
54. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to exercise their religion by gathering together on a regular basis to pray, chant, and perform other activities that are essential to expressing their faith without unreasonable disturbance and/or intrusion from employees of SCF or other inmates.
55. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed to participate in religious ceremonies and rituals at specified times during the year that are integral to their faith and that express their religious and spiritual beliefs.
56. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to participate in religious ceremonies and rituals at specified times during the year that are integral to their faith and that express their religious and spiritual beliefs.
18

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 19 of 129 PageID #: 2838
57. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed access to religious items that are integral to their faith and that express their religious and spiritual beliefs.
58. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to access to religious items that are integral to their faith and that express their religious and spiritual beliefs.
59. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed to access a worship space appropriate to their faith and that express their religious and spiritual beliefs.
60. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to access a worship space appropriate to their faith and that express their religious and spiritual beliefs.
61. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF have regular and frequent access to a spiritual advisor to assist them in practicing their respective faiths.
62. Plaintiffs are informed and believe that other prisoners of other religions who are incarcerated in RRCF have regular and frequent access to a spiritual advisor to assist them in practicing their respective faiths.
63. Plaintiffs are informed and believe that other prisoners of other religions who are precluded from the general population at SCF are allowed to
19

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 20 of 129 PageID #: 2839
exercise their religion by regularly meeting with a spiritual advisor to assist in: a) regular worship activities; b) special worship activities for certain religiously significant holidays; and c) providing access to sacred worship items essential to expressing their faith.
64. Plaintiffs are informed and believe that the Defendant CCA provides regularly scheduled weekly educational classes on topics concerning Native Hawaiian culture, language and history at SCF.
65. Plaintiffs are informed and believe that the Warden and or other personnel at SCF authorizes only certain inmates to supervise, lead, control and teach those educational classes on topics concerning Native Hawaiian culture, language and history.
66. Plaintiffs are informed and believe that the Warden and or other personnel at SCF retain absolute discretion to modify, cancel and/or reschedule the weekly Native Hawaiian educational classes without notice.
67. Plaintiffs are informed and believe that the CCA does not provide any Hawaiian educational classes to inmates who are incarcerated at RRCF.
68. Plaintiffs are informed and believe that CCA provides only an arbitrarily selected group of Native Hawaiian religious practitioners who are incarcerated in facilities located at SCF to participate in a ceremony to observe the beginning and ending of the Makahiki Season with certain religious protocol and
20

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 21 of 129 PageID #: 2840
the use of certain sacred items. Consequently, Plaintiffs are informed and believe that those Native Hawaiian religious practitioners who are arbitrarily denied in participating in the Makahiki Season ceremonies are relegated to only attend and observe those activities, if at all.
69. Plaintiffs are informed and believe that CCA does not provide any Native Hawaiian religious practitioners who are incarcerated in facilities located at RRCF to participate in a ceremony to observe the beginning and ending of the Makahiki Season.
70. Plaintiffs are informed and believe that SCF provides inmates who are Christian with the option of being housed in a separate area within SCF that allows them to: a) worship together on a daily basis; b) observe all important holidays with specific protocol; c) access religiously sacred items and educational materials required of their faith; d) access to a spiritually significant space for worship activities; and e) meet regularly with a spiritual teacher/leader to assist in their worship.
71. In or around July 2009, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA each submitted an inmate request form, in accordance with CCA’s administrative procedure, requesting to be allowed to gather daily with fellow Native Hawaiian inmates in observance of the Native Hawaiian Religion.
21

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 22 of 129 PageID #: 2841
Plaintiffs requested that these gatherings occur at an outdoor location during sunrise, last approximately 30 minutes, and include chanting, dancing and prayer.
72. In or around July 2009, HOLBRON submitted an inmate request form, in accordance with CCA’s administrative procedure, requesting to be allowed to meet with a spiritual advisor (“kahu”) to chant, dance and pray in observance of the Native Hawaiian Religion.
73. In or around August 2009, employees at SCF denied DAVIS, HUGHES, KAAHU and POAHA’s request for daily gatherings. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA then filed timely a formal grievance form seeking reconsideration of the denial.
74. In or around August 2009, employees at SCF denied HOLBRON’s request for gatherings with a spiritual advisor. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
75. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU’s grievance concerning the denial of their request for daily gatherings. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES and KAAHU then filed a timely appeal seeking reconsideration of the denial.
76. In or around August 2009, employees at SCF denied HOLBRON’s grievance concerning the denial of meeting with a spiritual leader for gatherings.
22

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 23 of 129 PageID #: 2842
Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
77. In or around August 2009, the Warden of SCF denied DAVIS, HUGHES, KAAHU and POAHA’s appeal concerning the denial of their request for daily gatherings. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA have now administratively exhausted this claim.
78. Defendants’ denial of DAVIS, HUGHES, KAAHU and POAHA’s request to gather with other practitioners to meet on a daily basis to dance, chant and pray prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying DAVIS, HUGHES, KAAHU and POAHA’s specific request to meet on a daily basis to pray, chant and dance with other Native Hawaiian practitioners.
79. Defendants’ denial of DAVIS, HUGHES, KAAHU and POAHA’s specific request to meet on a daily basis to pray, chant and dance with other Native Hawaiian practitioners was not the least restrictive means of furthering a compelling government interest.
23

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 24 of 129 PageID #: 2843
80. From approximately January to November 2010, SCF restricted DAVIS, HUGHES and KAAHU from attending any of its Native Hawaiian cultural educational classes, apparently due to their prior lack of regular attendance.
81. As of November 2010, however, SCF allowed DAVIS, HUGHES and KAAHU to attend its Native Hawaiian cultural educational classes.
82. KAAHU, however, cannot attend any of the Native Hawaiian cultural education classes because he is a participant in the “R-DAP” substance abuse program, recommended by the parole board to assist in his early release. The RDAP meetings conflict with the Native Hawaiian cultural education classes, and administer sanctions and penalties against KAAHU for attending the Native Hawaiian cultural education classes instead of the R-DAP meetings.
83. From approximately August 2009 to present, POAHA attends SCF’s Hawaiian cultural educational classes, but these classes did not address his need to congregate with other Native Hawaiian practitioners to pray, chant and dance.
84. In or around August 2009, the Warden of SCF denied HOLBRON’s appeal concerning the denial of his request to meet with a kahu to practice his Native Hawaiian faith with dance, chanting and prayer
85. Defendants’ denial of HOLBRON’s request to meet with a kahu to dance, chant and pray prevented him from engaging in conduct that is important to
24

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 25 of 129 PageID #: 2844
him and motivated by sincere religious belief, and thereby puts substantial pressure on him to modify his behavior and to violate his beliefs. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying HOLBRON’s specific request to meet with a kahu on a daily basis to pray, chant and dance.
86. Defendants’ denial of HOLBRON’s specific request to meet with a kahu on a daily basis to pray, chant and dance was not the least restrictive means of furthering a compelling government interest.
87. In or around August 2009, employees at RRCF denied KANE and KEAWE’s request for daily gatherings. Pursuant to CCA’s administrative procedure, KANE then filed timely a formal grievance form seeking reconsideration of the denial.
88. In or around August 2009, employees at RRCF denied KANE and KEAWE’s grievance concerning the denial of their request for daily gatherings. Pursuant to CCA’s administrative procedure, KANE then filed a timely appeal seeking reconsideration of the denial.
89. In or around August 2009, the Warden of RRCF denied KANE’s appeal concerning the denial of their request for daily gatherings. Pursuant to CCA’s administrative procedure, KANE and KEAWE have now administratively exhausted this claim.
25

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 26 of 129 PageID #: 2845
90. Defendants’ denial of KANE and KEAWE’s request to gather with other practitioners to meet on a daily basis to dance, chant and pray prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
91. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying KEAWE and KANE’s specific request to meet on a daily basis to pray, chant and dance with other Native Hawaiian practitioners.
92. Defendants’ denial of KEAWE and KANE’s specific request to meet on a daily basis to pray, chant and dance with other Native Hawaiian practitioners was not the least restrictive means of furthering a compelling government interest.
93. In or around July 2009 DAVIS, HUGHES, KAAHU, KANE and POAHA each submitted an inmate request form requesting to be allowed to celebrate the opening and closing days of the 2009-10 Makahiki Season.
94. With respect to the Makahiki requests as described above, DAVIS, HUGHES, KAAHU, KANE and POAHA requested permission to perform certain religious rituals and ceremonies that included the following activities: a) two-hour preparation session on the day before; b) a sunrise service; c) a two-hour session dressing the image of Lono, and preparing offerings and giving offerings,
26

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 27 of 129 PageID #: 2846
including chanting and dancing; d) a one-hour procession; e) a 30-minute opening prayer; f) a 1.5-hour session of traditional games; g) a two-hour session of chanting, prayer, and an awa ceremony; h) a 30-minute clean up session; i) a threehour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. They requested access to the outdoors for all the above activities, as well as attendance and presences of a kahu or other religious leaders.
95. In or around July 2009 HOLBRON submitted an inmate request form requesting to be allowed to meet with a spiritual advisor to assist in celebrating the opening and closing of the 2009-10 Makahiki Season with activities commensurate with his security level.
96. In or around August 2009, employees at SCF denied DAVIS, HUGHES, KAAHU and POAHA’s request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA then filed timely a formal grievance form seeking reconsideration of the denial.
97. In or around August 2009, employees at SCF denied HOLBRON’s request to meet with a spiritual advisor to celebrate Makahiki. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
27

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 28 of 129 PageID #: 2847
98. In or around August 2009, employees at SCF denied DAVIS, HUGHES, KAAHU and POAHA’s grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA then filed a timely appeal seeking reconsideration of the denial.
99. In or around August 2009, employees at SCF denied HOLBRON’s grievance concerning the denial of meeting with a spiritual leader to celebrate Makahiki. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
100. In or around August 2009, the Warden of SCF denied DAVIS, HUGHES, KAAHU and POAHA’s appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA have now administratively exhausted this claim.
101. In or around August 2009, the Warden of SCF denied HOLBRON’s appeal concerning the denial of his request to meet with a spiritual leader to celebrate Makahiki. Pursuant to CCA’s administrative procedure, HOLBRON has now administratively exhausted this claim.
102. In or around November 2009, the Defendants authorized inmates in the general population of the Saguaro Correctional Facility the opportunity to participate in a ceremony purportedly recognizing the opening of the 2009-10
28

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 29 of 129 PageID #: 2848
Makahiki Season, but banned Plaintiffs DAVIS, HUGHES and KAAHU from attending.
103. In or around November 2009, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the opening of the 2009-10 Makahiki Season, but this ceremony failed to include all of the specific religious protocol activities previously requested by Plaintiffs DAVIS, HUGHES, KAAHU and POAHA.
104. Upon information and belief, in or around February 2010, the Defendants authorized inmates in the general population of the Saguaro Correctional Facility to participate in a ceremony purportedly recognizing the closing of the 2009-10 Makahiki Season, but banned Plaintiffs DAVIS, HUGHES and KAAHU from attending.
105. In or around February 2010, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the closing of the 2009-10 Makahiki Season, but the ceremony did not include all of the specific religious protocol activities previously requested by Plaintiffs DAVIS, HUGHES, KAAHU and POAHA.
106. Defendants’ denial of DAVIS, HUGHES, KAAHU and POAHA’s request to observe the opening and closing days of the 2009-2010 Makahiki Season as requested prevented them from engaging in conduct that is important to
29

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 30 of 129 PageID #: 2849
them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
107. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying DAVIS, HUGHES, KAAHU and POAHA’s specific request to observe the opening and closing days of the 2009-2010 Makahiki Season with specific religious protocol.
108. Defendants’ denial of DAVIS, HUGHES, KAAHU and POAHA’s specific request to observe the opening and closing days of the 2009-2010 Makahiki Season with specific religious protocol was not the least restrictive means of furthering a compelling government interest.
109. Defendants’ denial of HOLBRON’s request to observe the 2009-2010 Makahiki Season with a kahu prevented him from engaging in conduct that is important to him and motivated by sincere religious belief, and thereby puts substantial pressure on him to modify his behavior and to violate his beliefs. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying HOLBRON’s specific request to meet with a kahu to celebrate the opening and closing days of the 2009-2010 Makahiki Season with specific religious protocol.
30

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 31 of 129 PageID #: 2850
110. Defendants’ denial of HOLBRON’s specific request to meet with a kahu to observe the opening and closing days of the 2009-2010 Makahiki Season with specific religious protocol was not the least restrictive means of furthering a compelling government interest.
111. In or around August 2009, employees at RRCF denied KANE’s request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, KANE then filed timely a formal grievance form seeking reconsideration of the denial.
112. In or around August 2009, employees at RRCF denied KANE’s grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, KANE then filed a timely appeal seeking reconsideration of the denial.
113. In or around August 2009, the Warden of RRCF denied KANE’s appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, KANE has now administratively exhausted this claim.
114. Defendants’ denial of KANE and KEAWE’s request to observe the 2009-2010 Makahiki Season prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts
31

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 32 of 129 PageID #: 2851
substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
115. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying KANE and KEAWE’s specific request to observe the opening and closing days of the 2009-2010 Makahiki Season with specific religious protocol.
116. Defendants’ denial of KANE and KEAWE’s specific request to observe the opening and closing days of the 2009-2010 Makahiki Season with specific religious protocol was not the least restrictive means of furthering a compelling government interest.
117. In or around July 2009, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA each submitted an inmate request form requesting access to religiously significant objects for daily use and for use during the Makahiki celebration.
118. Specifically, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA sought access to: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke
32

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 33 of 129 PageID #: 2852
(percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
119. In or around July 2009 HOLBRON submitted an inmate request form requesting to be allowed to meet with a spiritual advisor to assist him in using the following sacred items to practice his faith: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
120. In or around August 2009, employees at SCF denied DAVIS, HUGHES, KAAHU and POAHA’s request for access to those sacred items described above. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA then filed timely a formal grievance form seeking reconsideration of the denial. In or around August 2009, employees at SCF denied HOLBRON’s request to meet with a spiritual advisor to access those sacred items
33

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 34 of 129 PageID #: 2853
described above. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
121. In or around August 2009, employees at SCF denied DAVIS, HUGHES, KAAHU and POAHA’s grievance concerning the denial of access to those sacred items. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA then filed a timely appeal seeking reconsideration of the denial.
122. In or around August 2009, employees at SCF denied HOLBRON’s grievance concerning the denial of meeting with a spiritual leader to access those sacred items. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
123. In or around August 2009, the Warden of SCF denied DAVIS, HUGHES, KAAHU and POAHA’s appeal concerning the denial of their request to access those sacred items. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU and POAHA have now administratively exhausted this claim.
124. Defendants’ denial of DAVIS, HUGHES , KAAHU and POAHA’s request to access those sacred items described above, prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
34

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 35 of 129 PageID #: 2854
125. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying DAVIS, HUGHES, KAAHU and POAHA’s specific request to access those sacred items described above.
126. Defendants’ denial of DAVIS, HUGHES , KAAHU and POAHA’s specific request to access those sacred items described above was not the least restrictive means of furthering a compelling government interest.
127. In or around August 2009, the Warden of SCF denied HOLBRON’s appeal concerning the denial of his request to meet with a spiritual leader to access those sacred items described above. Pursuant to CCA’s administrative procedure, HOLBRON has now administratively exhausted this claim.
128. Defendants’ denial of HOLBRON’s request to access those sacred items with the assistance of a kahu prevented him from engaging in conduct that is important to him and motivated by sincere religious belief, and thereby puts substantial pressure on him to modify his behavior and to violate his beliefs.
129. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying HOLBRON’s specific request to meet with a kahu to access those sacred items described above.
130. Defendants’ denial of HOLBRON’s specific request to meet with a kahu to access those sacred items described above was not the least restrictive means of furthering a compelling government interest.
35

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 36 of 129 PageID #: 2855
131. In or around August 2009, employees at RRCF denied KANE’s request to access those sacred items. Pursuant to CCA’s administrative procedure, KANE then filed timely a formal grievance form seeking reconsideration of the denial.
132. In or around August 2009, employees at RRCF denied KANE’s grievance concerning the denial of his request to access those sacred items. Pursuant to CCA’s administrative procedure, KANE then filed a timely appeal seeking reconsideration of the denial.
133. In or around August 2009, the Warden of RRCF denied KANE’s appeal concerning the denial of his request to access those sacred items. Pursuant to CCA’s administrative procedure, KANE has now administratively exhausted this claim.
134. Defendants’ denial of KANE’s request to access those sacred items prevented him from engaging in conduct that is important to him and motivated by sincere religious belief, and thereby puts substantial pressure on him to modify his behavior and to violate his beliefs.
135. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying KANE’s specific request to access those sacred items described above.
36

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 37 of 129 PageID #: 2856
136. Defendants’ denial of KANE’s specific request to access those sacred items described above was not the least restrictive means of furthering a compelling government interest.
137. In or around July 2009, DAVIS HUGHES, KAAHU, KANE and POAHA each submitted an inmate request form requesting authorization to prepare a sacred space in their respective prison yards with at least two spiritually significant stones to serve as a focal point for their worship activities.
138. In or around August 2009, employees at SCF denied DAVIS, HUGHES, KAAHU and POAHA’s request for authorization to prepare a sacred space for their worship activities at SCF. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES and KAAHU then filed timely a formal grievance form seeking reconsideration of the denial.
139. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU’s grievance concerning the denial of their request to prepare a sacred space at SCF. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES and KAAHU then filed a timely appeal seeking reconsideration of the denial.
140. In or around August 2009, the Warden of SCF denied DAVIS, HUGHES and KAAHU’s appeal concerning the denial of their request to prepare a
37

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 38 of 129 PageID #: 2857
sacred space at SCF. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES and KAAHU have now administratively exhausted this claim.
141. Defendants’ denial of DAVIS, HUGHES, KAAHU and POAHA’s request to establish a sacred space outside prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
142. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying DAVIS HUGHES, KAAHU and POAHA’s specific request to establish a sacred space outside, as described above.
143. Defendants’ denial of DAVIS, HUGHES and KAAHU’s specific request to establish a sacred space outside, as described above was not the least restrictive means of furthering a compelling government interest.
144. In or around August 2009, employees at RRCF denied KANE and KEAWE’s request for authorization to prepare a sacred space for their worship activities at RRCF. Pursuant to CCA’s administrative procedure, KANE and KEAWE then filed timely a formal grievance form seeking reconsideration of the denial.
38

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 39 of 129 PageID #: 2858
145. In or around August 2009, employees at RRCF denied KANE’s grievance concerning the denial of his request to prepare a sacred space at RRCF. Pursuant to CCA’s administrative procedure, KANE and KEAWE then filed a timely appeal seeking reconsideration of the denial.
146. In or around August 2009, the Warden of RRCF denied KANE and KEAWE’s appeal concerning the denial of their request to prepare a sacred space at RRCF. Pursuant to CCA’s administrative procedure, KANE and KEAWE have now administratively exhausted this claim.
147. Defendants’ denial of KANE and KEAWE’s request to establish a sacred space outside prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
148. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying KANE and KEAWE’s specific request to establish a sacred space outside, as described above.
149. Defendants’ denial of KANE and KEAWE’s specific request to establish a sacred space outside, as described above was not the least restrictive means of furthering a compelling government interest.
39

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 40 of 129 PageID #: 2859
150. In or around July 2009, DAVIS, HUGHES, KAAHU, HOLBRON, KANE, KEAWE and POAHA each submitted an inmate request form requesting authorization to meet regularly with a kahu.
151. In or around August 2009, employees at SCF denied DAVIS, HUGHES KAAHU, HOLBRON and POAHA’s request to meet regularly with a kahu. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES KAAHU, HOLBRON and POAHA then filed timely a formal grievance form seeking reconsideration of the denial.
152. In or around August 2009, employees at SCF denied DAVIS, HUGHES KAAHU, HOLBRON and POAHA’s grievance concerning the denial of their request to meet regularly with a kahu. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU, HOLBRON and POAHA then filed a timely appeal seeking reconsideration of the denial.
153. In or around August 2009, the Warden of SCF denied DAVIS, HUGHES KAAHU, HOLBRON and POAHA’s appeal concerning the denial of their request to meet regularly with a kahu. Pursuant to CCA’s administrative procedure, DAVIS, HUGHES, KAAHU, HOLBRON and POAHA have now administratively exhausted this claim.
154. Defendants’ denial of DAVIS, HUGHES, KAAHU, HOLBRON and POAHA’s request to regularly meet with a kahu prevented them from engaging in
40

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 41 of 129 PageID #: 2860
conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
155. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying DAVIS, HUGHES KAAHU, HOLBRON and POAHA’s specific request to regularly meet with a kahu.
156. Defendants’ denial of DAVIS, HUGHES KAAHU, HOLBRON and POAHA’s specific request to regularly meet with a kahu, was not the least restrictive means of furthering a compelling government interest.
157. In or around August 2009, employees at RRCF denied KANE and KEAWE’s request to meet regularly with a kahu. Pursuant to CCA’s administrative procedure, KANE and KEAWE then filed timely a formal grievance form seeking reconsideration of the denial.
158. In or around August 2009, employees at RRCF denied KANE and KEAWE’s grievance concerning the denial of their request to meet regularly with a kahu. Pursuant to CCA’s administrative procedure, KANE and KEAWE then filed a timely appeal seeking reconsideration of the denial.
159. In or around August 2009, the Warden of RRCF denied KANE and KEAWE’s appeal concerning the denial of their request to meet regularly with a
41

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 42 of 129 PageID #: 2861
kahu. Pursuant to CCA’s administrative procedure, KANE and KEAWE have now administratively exhausted this claim.
160. Defendants’ denial KANE and KEAWE’s request to regularly meet with a kahu prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
161. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying KANE and KEAWE’s specific request to regularly meet with a kahu.
162. Defendants’ denial of KANE and KEAWE’s specific request to regularly meet with a kahu, was not the least restrictive means of furthering a compelling government interest.
163. In or around July 2010 DAVIS, HUGHES, and KEAWE each submitted an inmate request form requesting to be allowed to celebrate the opening and closing days of the 2010-11 Makahiki Season.
164. With respect to the Makahiki requests as described above, DAVIS, HUGHES, and KEAWE requested permission to perform certain religious rituals and ceremonies that included the following activities: a) two-hour preparation session on the day before; b) a sunrise service; c) a two-hour session dressing the image of Lono, and preparing offerings and giving offerings, including chanting
42

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 43 of 129 PageID #: 2862
and dancing; d) a one-hour procession; e) a 30-minute opening prayer; f) a 1.5hour session of traditional games; g) a two-hour session of chanting, prayer, and an awa ceremony; h) a 30-minute clean up session; i) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. They requested access to the outdoors for all the above activities, as well as attendance and presences of a kahu or other religious leaders.
165. In or around July 2010, HOLBRON submitted an inmate request form requesting to be allowed to meet with a spiritual advisor to assist in celebrating the opening and closing days of the 2010-11 Makahiki Season with activities commensurate with his security level.
166. In or around August 2010, employees at SCF denied DAVIS and HUGHES’s request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, DAVIS and HUGHES then filed timely a formal grievance form seeking reconsideration of the denial.
167. In or around August 2010, employees at SCF denied HOLBRON’s request to meet with a spiritual advisor to celebrate Makahiki. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
43

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 44 of 129 PageID #: 2863
168. In or around August 2010, employees at SCF denied DAVIS and HUGHES’s grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, DAVIS and HUGHES then filed a timely appeal seeking reconsideration of the denial.
169. In or around August 2010, employees at SCF denied HOLBRON’s grievance concerning the denial of meeting with a spiritual leader to celebrate Makahiki. Pursuant to CCA’s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
170. In or around August 2010, the Warden of SCF denied DAVIS and HUGHES’s appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, DAVIS, and HUGHES have now administratively exhausted this claim.
171. In or around August 2010, the Warden of SCF denied HOLBRON’s appeal concerning the denial of his request to meet with a spiritual leader to celebrate Makahiki. Pursuant to CCA’s administrative procedure, HOLBRON has now administratively exhausted this claim.
172. Defendants’ denial of HOLBRON’s request to observe the 2010-2011 Makahiki Season with a kahu prevented him from engaging in conduct that is important to him and motivated by sincere religious belief, and thereby puts substantial pressure on him to modify his behavior and to violate his beliefs.
44

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 45 of 129 PageID #: 2864
173. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying HOLBRON’s specific request to meet with a kahu to celebrate the opening and closing days of the 2010-2011 Makahiki Season with specific religious protocol.
174. Defendants’ denial of HOLBRON’s specific request to meet with a kahu to observe the opening and closing days of the 2010-2011 Makahiki Season with specific religious protocol was not the least restrictive means of furthering a compelling government interest.
175. In or around November 2010, the Defendants authorized inmates in the general population of the Saguaro Correctional Facility the opportunity to participate in a ceremony purportedly recognizing the opening of the 2010-2011 Makahiki Season.
176. In or around November 2010, the Defendants authorized Plaintiffs DAVIS, HUGHES and KAAHU to attend a ceremony purportedly recognizing the opening of the 2010-11 Makahiki Season, but banned them from actively participating in the ceremony and/or engaging in any of the religious activities they had previously requested.
177. In or around November 2010, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the opening of the 2010-11 Makahiki Season, but the ceremony did
45

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 46 of 129 PageID #: 2865
not include all of the specific religious protocol activities previously requested by Plaintiffs DAVIS, HUGHES and KAAHU.
178. In or around November 2010, Plaintiffs DAVIS, HUGHES and KAAHU attended a ceremony recognizing the opening of the 2010-11 Makahiki Season, but Defendants banned them from actively participating in the ceremony and/or engaging in any of the religious activities they had previously requested.
179. Upon information and belief, in or around December 2010, the Defendants authorized inmates in the general population of the Saguaro Correctional Facility the opportunity to participate in a ceremony purportedly recognizing the closing of the 2010-2011 Makahiki Season.
180. In or around December 2010, the Defendants authorized Plaintiffs DAVIS, HUGHES and KAAHU to attend a ceremony purportedly recognizing the closing of the 2010-11 Makahiki Season, but banned them from actively participating in the ceremony and/or engaging in any of the religious activities they had previously requested.
181. On or about January 25, 2011, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the closing of the 2010-11 Makahiki Season, but scheduled the ceremony approximately six weeks earlier than the setting of the Makali`i
46

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 47 of 129 PageID #: 2866
(Pleiades) Constellation and failed to include all of the specific religious protocol activities as previously requested by Plaintiffs DAVIS, HUGHES and KAAHU.
182. On or about January 25, 2010, Plaintiff KAAHU attended a ceremony recognizing the closing of the 2010-11 Makahiki Season, but he was not permitted to participate in any religious protocol activities as they had previously requested.
183. Defendants’ denial of DAVIS, HUGHES, and KAAHU’s request to observe the opening and closing of the 2010-2011 Makahiki Season with specific religious protocol prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
184. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying DAVIS, HUGHES and KAAHU’s specific request to observe the opening and closing days of the 20102011 Makahiki Season with specific religious protocol.
185. Defendants’ denial of DAVIS, HUGHES and KAAHU’s specific request to observe the opening and closing days of the 2010-2011 Makahiki Season with specific religious protocol was not the least restrictive means of furthering a compelling government interest.
47

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 48 of 129 PageID #: 2867
186. In or around August 2010, employees at RRCF denied KEAWE’s request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, KEAWE then filed timely a formal grievance form seeking reconsideration of the denial.
187. In or around August 2010, employees at RRCF denied KEAWE’s grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, KEAWE then filed a timely appeal seeking reconsideration of the denial.
188. In or around August 2010, the Warden of RRCF denied KEAWE’s appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA’s administrative procedure, KEAWE has now administratively exhausted this claim.
189. Defendants’ denial of KEAWE and KANE’s request to observe the 2010-2011 Makahiki Season prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
190. Upon information and belief, Defendants failed to consider the efficacy of less restrictive measures before denying KANE and KEAWE’s specific
48

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 49 of 129 PageID #: 2868
request to observe the opening and closing days of the 2010-2011 Makahiki Season with specific religious protocol.
191. Defendants’ denial of KANE and KEAWE’s specific request to observe the opening and closing days of the 2010-2011 Makahiki Season with specific religious protocol was not the least restrictive means of furthering a compelling government interest.
192. On information and belief, Plaintiffs have exhausted all of the administrative remedies required by all of Defendants in relation to their request to practice and express their religion and perform other activities that are essential to expressing their religious belief and faith.
CLAIMS FOR RELIEF VIOLATION OF FIRST AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION RELATING TO FREE EXERCISE OF
RELIGION 193. Plaintiffs re-allege paragraphs 1 through 192, and incorporate them herein by reference. 194. The Free Exercise Clause of the First Amendment to the U.S. Constitution provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” 195. 42 U.S.C. § 1983 provides in relevant part: “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
49

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 50 of 129 PageID #: 2869
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 equity, or other proper proceeding for redress. . .”
196. The Free Exercise Clause of the First Amendment is applied to the Defendants STATE OF HAWAII through the Fourteenth Amendment of the U.S. Constitution as state actors.
197. The Free Exercise Clause of the First Amendment applies to Defendant CCA, through the Fourteenth Amendment to the U.S. Constitution because its task of supervising and controlling State of Hawaii inmates is a task that is traditionally and fundamentally performed by the government, and thus is state actor.
COUNT I: AS TO DAILY WORSHIP VIOLATIONS 198. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when inmates of a certain religion can congregate for group worship.
50

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 51 of 129 PageID #: 2870
199. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship.
200. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship.
201. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA to meet with other Native Hawaiian practitioners on a daily basis for group worship in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
202. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA from meeting with other Native Hawaiian practitioners on a daily basis for group worship in violation of the Free Exercise
51

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 52 of 129 PageID #: 2871
Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
203. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
204. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when administrative segregation inmates of a certain religion can meet with a spiritual advisor on a regular basis.
205. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from regularly meeting with a spiritual advisor on a regular basis.
206. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution because said
52

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 53 of 129 PageID #: 2872
policies and procedures are not reasonably related to legitimate penological interests.
207. Consequently, Defendant CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
208. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
209. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT II: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 210. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates of a certain religion can observe important religious days with certain protocol.
53

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 54 of 129 PageID #: 2873
211. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows only some Native Hawaiian Practitioners to observe the opening and closing days of Makahiki Season with certain religious protocol.
212. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice refusing all Native Hawaiian Practitioners from observing the opening and closing days of Makahiki Season with certain religious protocol.
213. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA to observe the opening and closing days of the Makahiki Season violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
214. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA from observing the opening and closing days of the Makahiki Season violates the Free Exercise Clause of the First
54

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 55 of 129 PageID #: 2874
Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
215. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
216. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to observe important religious days with specific protocol.
217. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to observe the opening and closing of Makahiki with specific protocol.
218. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to observe important religious days with specific protocol
55

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 56 of 129 PageID #: 2875
violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
219. Consequently, Defendant CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to observe the opening and closing of Makahiki with specific protocol violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
220. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
221. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT III: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 222. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to
56

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 57 of 129 PageID #: 2876
authorize whether inmates can access sacred items critical to the worship of their faith.
223. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
224. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or
57

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 58 of 129 PageID #: 2877
painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
225. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s access the above listed sacred items violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
226. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA to access the above listed sacred items violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
227. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
228. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent
58

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 59 of 129 PageID #: 2878
widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to utilize certain sacred objects critical to the worship of their faith.
229. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to assist in the use of malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
230. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items violates the Free Exercise
59

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 60 of 129 PageID #: 2879
Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
231. Consequently, Defendant CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
232. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
233. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT IV: AS TO ACCESS TO SACRED SPACE VIOLATIONS 234. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize a sacred space for inmates to engage in religious worship activities.
60

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 61 of 129 PageID #: 2880
235. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
236. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
237. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish a sacred outdoor space with at least two spiritually significant stones for group worship violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
238. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish a sacred outdoor space violates the Free Exercise Clause of the First Amendment to the U.S.
61

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 62 of 129 PageID #: 2881
Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
239. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
240. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT V: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS
241. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize inmates to meet with a spiritual advisor on a regular basis.
242. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from meeting with a spiritual advisor on a regular basis.
62

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 63 of 129 PageID #: 2882
243. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from to meet with a spiritual advisor on a regular basis.
244. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual advisor on a regular basis violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
245. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual advisor on a regular basis violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
246. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
63

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 64 of 129 PageID #: 2883
247. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
VIOLATION OF EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION 248. Plaintiffs re-allege paragraphs 1 through 192, and incorporate them herein by reference. 249. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that no State shall “deny to any person within its jurisdiction, the equal protection of the laws.” 250. 42 U.S.C. § 1983 provides in relevant part: “[e]very 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 equity, or other proper proceeding for redress. . .” 251. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is applied to the Defendants STATE OF HAWAII through the Fourteenth Amendment of the U.S. Constitution as state actors.
64

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 65 of 129 PageID #: 2884
252. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution applies to Defendant CCA, because its task of supervising and controlling State of Hawaii inmates is a task that is traditionally and fundamentally performed by the government, and thus is state actor.
COUNT VI: AS TO DAILY WORSHIP VIOLATIONS 253. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs’ religion. 254. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and gives preference of those faiths over Plaintiffs’ religion. 255. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that
65

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 66 of 129 PageID #: 2885
allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs’ religion.
256. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
257. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
258. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
66

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 67 of 129 PageID #: 2886
259. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT VII: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 260. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to observe their important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
261. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to observe their important holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs’ religion.
262. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that
67

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 68 of 129 PageID #: 2887
allows inmates of only certain religions to observe their important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
263. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
264. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE’s request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
68

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 69 of 129 PageID #: 2888
265. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
266. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in observing important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
267. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in the observance of important holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs’ religion.
268. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing HOLBRON’s
69

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 70 of 129 PageID #: 2889
request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to assist in observing their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
269. Consequently, Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to assist in observing their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
270. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
70

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 71 of 129 PageID #: 2890
271. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT VIII: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 272. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
273. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
274. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that
71

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 72 of 129 PageID #: 2891
allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
275. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request access malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
276. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to access malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt),
72

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 73 of 129 PageID #: 2892
apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
277. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
278. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for
73

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 74 of 129 PageID #: 2893
worship, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
279. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and give preference of those faiths over Plaintiffs’ religion.
280. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to access the following items of worship malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their
74

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 75 of 129 PageID #: 2894
sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
281. Consequently, Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to access the following items of worship malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
282. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
75

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 76 of 129 PageID #: 2895
283. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT IX: AS TO ACCESS TO SACRED SPACE VIOLATIONS 284. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and gives preference of those faiths over Plaintiffs’ religion. 285. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and give preference of those faiths over Plaintiffs’ religion. 286. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that
76

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 77 of 129 PageID #: 2896
allows inmates of only certain religions to consecrate a special area for their worship and thus advances and give preference of those faiths over Plaintiffs’ religion.
287. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
288. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
77

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 78 of 129 PageID #: 2897
289. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
290. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT X: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS 291. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
292. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs’ religion.
78

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 79 of 129 PageID #: 2898
293. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs’ religion.
294. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
295. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the
79

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 80 of 129 PageID #: 2899
laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
296. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
297. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
VIOLATIONS OF ARTICLE I, SECTION 4 OF THE HAWAII STATE CONSTITUTION RELATING TO FREE EXERCISE OF RELIGION
298. Plaintiffs re-allege paragraphs 1 through 192, and incorporate them herein by reference.
299. Article I, Section 4 of the Hawaii State Constitution provides that “[n]o law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof.. .”
300. The Free Exercise Clause of the Hawaii State Constitution applies to the Defendants STATE OF HAWAII because they are state actors.
301. The Free Exercise Clause of the Hawaii State Constitution applies to Defendant CCA because it is the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, and charged with a
80

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 81 of 129 PageID #: 2900
task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF are state actors.
COUNT XI: AS TO DAILY WORSHIP VIOLATIONS 302. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when inmates of a certain religion can congregate for group worship. 303. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship. 304. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship.
81

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 82 of 129 PageID #: 2901
305. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA to meet with other Native Hawaiian practitioners on a daily basis for group worship in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
306. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA from meeting with other Native Hawaiian practitioners on a daily basis for group worship in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
307. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
308. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when administrative segregation inmates of a certain religion can meet with a spiritual advisor on a regular basis.
82

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 83 of 129 PageID #: 2902
309. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from regularly meeting with a spiritual advisor on a regular basis.
310. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
311. Consequently, Defendant CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
312. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
83

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 84 of 129 PageID #: 2903
313. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XII: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 314. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates of a certain religion can observe important religious days with certain protocol.
315. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows only some Native Hawaiian Practitioners to observe the opening and closing days of Makahiki Season with certain religious protocol.
316. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice refusing all Native Hawaiian Practitioners from observing the opening and closing days of Makahiki Season with certain religious protocol.
84

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 85 of 129 PageID #: 2904
317. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA to observe the opening and closing days of the Makahiki Season violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
318. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA from observing the opening and closing days of the Makahiki Season violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
319. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
320. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to observe important religious days with specific protocol.
85

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 86 of 129 PageID #: 2905
321. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to observe the opening and closing of Makahiki with specific protocol.
322. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to observe important religious days with specific protocol violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
323. Consequently, Defendant CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to observe the opening and closing of Makahiki with specific protocol violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
324. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
86

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 87 of 129 PageID #: 2906
325. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XIII: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 326. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates can access sacred items critical to the worship of their faith.
327. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee
87

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 88 of 129 PageID #: 2907
drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
328. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
329. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s access the above listed sacred items violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
88

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 89 of 129 PageID #: 2908
330. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA to access the above listed sacred items Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
331. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
332. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to utilize certain sacred objects critical to the worship of their faith.
333. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to assist in the use of malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell
89

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 90 of 129 PageID #: 2909
bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
334. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
335. Consequently, Defendant CCA’s policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
336. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
90

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 91 of 129 PageID #: 2910
337. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XIV: AS TO ACCESS TO SACRED SPACE VIOLATIONS 338. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize a sacred space for inmates to engage in religious worship activities.
339. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
340. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
91

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 92 of 129 PageID #: 2911
341. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish a sacred outdoor space with at least two spiritually significant stones for group worship Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
342. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish a sacred outdoor space violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
343. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
344. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XV: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS 345. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent
92

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 93 of 129 PageID #: 2912
widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize inmates to meet with a spiritual advisor on a regular basis.
346. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from meeting with a spiritual advisor on a regular basis.
347. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from to meet with a spiritual advisor on a regular basis.
348. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual advisor on a regular basis violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
93

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 94 of 129 PageID #: 2913
349. Consequently, Defendant CCA’s refusal of DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual advisor on a regular basis violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
350. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
351. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
VIOLATION OF ARTICLE I, SECTION 5 OF THE HAWAII STATE CONSTITUTION RELATING TO EQUAL PROTECTION
352. Plaintiffs re-allege paragraphs 1 through 192, and incorporate them herein by reference.
353. Article I, Section 5 of the Hawaii State Constitution provides that “[n]o person shall . . . be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.”
354. The Equal Protection Clause of the Hawaii State Constitution applies to the Defendants STATE OF HAWAII because they are state actors.
94

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 95 of 129 PageID #: 2914
355. The Equal Protection Clause of the Hawaii State Constitution applies to Defendant CCA because it is the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, and charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF are state actors.
COUNT XVI: AS TO DAILY WORSHIP VIOLATIONS 356. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs’ religion. 357. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and gives preference of those faiths over Plaintiffs’ religion.
95

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 96 of 129 PageID #: 2915
358. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs’ religion.
359. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
360. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
96

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 97 of 129 PageID #: 2916
361. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
362. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XVII: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 363. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to observe their important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
364. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to observe their important holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs’ religion.
97

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 98 of 129 PageID #: 2917
365. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to observe their important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
366. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
367. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their important holidays has denied
98

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 99 of 129 PageID #: 2918
Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
368. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
369. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in observing important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
370. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in the observance of important holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs’ religion.
99

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 100 of 129 PageID #: 2919
371. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to assist in observing their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
372. Consequently, Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to assist in observing their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
373. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
100

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 101 of 129 PageID #: 2920
374. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XVIII: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 375. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
376. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
377. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that
101

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 102 of 129 PageID #: 2921
allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
378. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request access malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
379. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to access malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow
102

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 103 of 129 PageID #: 2922
ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
380. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
381. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
103

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 104 of 129 PageID #: 2923
382. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and give preference of those faiths over Plaintiffs’ religion.
383. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to access the following items of worship malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
104

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 105 of 129 PageID #: 2924
384. Consequently, Defendant CCA’s policy of refusing HOLBRON’s request to meet with a spiritual leader to access the following items of worship malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
385. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
386. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
105

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 106 of 129 PageID #: 2925
COUNT XIX: AS TO ACCESS TO SACRED SPACE VIOLATIONS 387. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
388. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and give preference of those faiths over Plaintiffs’ religion.
389. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship and thus advances and give preference of those faiths over Plaintiffs’ religion.
106

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 107 of 129 PageID #: 2926
390. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
391. Consequently, Defendant CCA’s policy of refusing DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
392. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
107

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 108 of 129 PageID #: 2927
393. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XX: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS 394. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and gives preference of those faiths over Plaintiffs’ religion.
395. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs’ religion.
396. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that
108

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 109 of 129 PageID #: 2928
allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs’ religion.
397. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
398. Consequently, Defendant CCA’s policy of refusing DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA’s request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
399. As a consequence of the above violation, DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue
109

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 110 of 129 PageID #: 2929
to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
400. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
VIOLATION OF ARTICLE XII, SECTION 7 OF THE HAWAII STATE CONSTITUTION and H.R.S. SECTION 1-1 RELATING TO NATIVE HAWAIIAN TRADITIONAL AND CUSTOMARY RIGHTS 401. Plaintiffs re-allege paragraphs 1 through 192, and incorporate them
herein by reference. 402. Article XII, Section 7 of the Hawaii State Constitution provides that
the State “reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua`a tenants who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights."
403. Hawaii Revised Statutes Section 1-1 provides in pertinent part: “[t]he common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by
110

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 111 of 129 PageID #: 2930
the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage…”
404. Article XII, Section 7 of the Hawaii State Constitution and Hawaii Revised Statutes Section 1-1 applies to the Defendants STATE OF HAWAII as state actors.
405. Article XII, Section 7 of the Hawaii State Constitution and Hawaii Revised Statutes Section 1-1 applies to Defendant CCA because it is the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, and charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF are state actors.
406. But for Plaintiffs’ involuntary seizure from the State of Hawaii to the State of Arizona, Plaintiffs would have continued to practice critical tenets of their Native Hawaiian faith in their respective ahupua`a as their ancestors had done before them.
COUNT XXI: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 407. Upon information and belief, the Defendants STATE OF HAWAII
are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory
111

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 112 of 129 PageID #: 2931
responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 are allowed to engage in traditional and customary practices which originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
408. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice to restrict inmates who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 from engaging in traditional and customary practices which originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
409. Upon information and belief, Defendant CCA authorized Bruno Stolc, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice to restrict inmates who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 from engaging in traditional and customary practices which originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
112

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 113 of 129 PageID #: 2932
410. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of refusing DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA to meaningfully participate in the recognition of the opening and closing days of the Makahiki Season with specific protocol and the use of sacred items violates Article XII, Section 7 of the Hawaii State Constitution and Hawaii Revised Statutes Section 11.
411. Consequently, Defendant CCA’s refusal of DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA to meaningfully participate in the recognition of the opening and closing days of the Makahiki Season with specific protocol and the use of sacred items violates Article XII, Section 7 of the Hawaii State Constitution and Hawaii Revised Statutes Section 1-1.
412. As a consequence of the above violations, Plaintiffs have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
413. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
113

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 114 of 129 PageID #: 2933
VIOLATIONS OF RLUIPA 42 U.S.C. §§ 2000cc, Et Seq. 414. Plaintiffs re-allege paragraphs 1 through 190, and incorporate them herein by reference.
415. According to The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ seq. (“RLUIPA”), which states in relevant part:
“(a) General Rule. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
416. Further, RLUIPA provides in relevant part: “(b) Scope of application. This section applies in any case which-(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance…”
417. The United States Government provides financial aid to the State of Hawaii’s Department of Public Safety, which is responsible for administering the corrections of individuals who were convicted and sentenced pursuant to Hawaii
114

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 115 of 129 PageID #: 2934
state laws, and thus falls under the definition of “program” or “activity” under RLUIPA.
418. State of Hawaii’s Department of Public Safety is an institution as defined in 42 U.S.C. § 1997.
419. Defendant CCA is an institution as defined in 42 U.S.C. § 1997. 420. The State of Hawaii, through its Department of Public Safety, entered into various contracts with the Defendant CCA for substantial financial consideration to take custody of DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA and other State of Hawaii inmates, and therefore renders Defendants CCA, SCCF and RCCF as instrumentalities of the Hawaii Department of Public Safety and thus fall under the definition of “program” or “activity” under RLUIPA. 421. Upon information and belief, SCCF receives financial assistance from the United States Government. 422. Upon information and belief, RCCF receives financial assistance from the United States Government. 423. SCCF is an institution as defined in 42 U.S.C. § 1997. 424. RCCF is an institution as defined in 42 U.S.C. § 1997.
115

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 116 of 129 PageID #: 2935
COUNT XXII: AS TO DAILY WORSHIP VIOLATIONS 425. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from meeting with each other on a daily basis for group worship substantially burdens DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs. 426. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest. 427. Defendants STATE OF HAWAII’s aforementioned policy therefore violates RLUIPA. 428. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are in administrative segregation at SCCF from meeting with a kahu on a daily basis for worship substantially burdens HOLBRON’s religious exercise and sincerely held religious beliefs. 429. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest. 430. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violates RLUIPA. 431. Defendants CCA’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from meeting with each
116

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 117 of 129 PageID #: 2936
other on a daily basis for group worship substantially burdens DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
432. Defendants CCA’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
433. Defendants CCA’s aforementioned policy and actions therefore violate RLUIPA.
434. Defendant CCA’s policy banning Native Hawaiian Practitioners who are in administrative segregation at SCCF from meeting with a kahu on a daily basis for worship substantially burdens HOLBRON’s religious exercise and sincerely held religious beliefs.
435. Defendant CCA’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
436. Defendant CCA’s aforementioned policy and actions therefore violate RLUIPA.
437. As a consequence of the above violations of RLUIPA, Plaintiffs have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
117

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 118 of 129 PageID #: 2937
438. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XXIII: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS
439. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from observing the opening and closing days of the Makahiki Season in 2009-2011 with specific religious protocol substantially burdens DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
440. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
441. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violate RLUIPA.
442. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are in administrative segregation at SCCF from meeting with a kahu to observe the opening and closing days of the Makahiki Season in 20092011 with specific religious protocol substantially burdens HOLBRON’s religious exercise and sincerely held religious beliefs.
118

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 119 of 129 PageID #: 2938
443. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
444. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violate RLUIPA.
445. Defendants CCA’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from observing the opening and closing days of the Makahiki Season in 2009-2011 with specific religious protocol, substantially burdens DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
446. Defendants CCA’s aforementioned policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from observing the opening and closing days of the Makahiki Season in 2009-2011 with specific religious protocol is not the least restrictive means of furthering any compelling governmental interest.
447. Defendants CCA’s aforementioned policy and actions therefore violate RLUIPA.
448. Defendant CCA’s policy banning Native Hawaiian Practitioners who are in administrative segregation at SCCF from meeting with a kahu to observe the opening and closing days of the Makahiki Season in 2009-2011 with specific
119

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 120 of 129 PageID #: 2939
religious protocol substantially burdens HOLBRON’s religious exercise and sincerely held religious beliefs.
449. Defendant CCA’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
450. Defendant CCA’s aforementioned policy and actions therefore violate RLUIPA.
451. As a consequence of the above RLUIPA violations, Plaintiffs have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
452. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XXIV: AS TO ACCESS TO SACRED ITEMS VIOLATIONS
453. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from accessing the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke
120

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 121 of 129 PageID #: 2940
(percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers), substantially burdens DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
454. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
455. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violate RLUIPA.
456. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are in administrative segregation at SCCF from meeting with a kahu to access the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers), substantially burdens HOLBRON’s religious exercise and sincerely held religious beliefs.
121

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 122 of 129 PageID #: 2941
457. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
458. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violate RLUIPA.
459. Defendants CCA’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from accessing the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) substantially burdens DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
460. Defendants CCA’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
461. Defendants CCA’s aforementioned policy and actions therefore violate RLUIPA.
122

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 123 of 129 PageID #: 2942
462. Defendant CCA’s policy banning Native Hawaiian Practitioners who are in administrative segregation at SCCF from meeting with a kahu to access the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) substantially burdens HOLBRON’s religious exercise and sincerely held religious beliefs.
463. Defendant CCA’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
464. Defendant CCA’s aforementioned policy and actions therefore violate RLUIPA.
465. As a consequence of the above RLUIPA violations, Plaintiffs have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
123

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 124 of 129 PageID #: 2943
466. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XXV: AS TO ACCESS TO SACRED SPACE VIOLATIONS
467. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from establishing an outdoor sacred space for worship substantially burdens DAVIS, HUGHES, KAAHU, KANE and KEAWE’s religious exercise and sincerely held religious beliefs.
468. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
469. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violate RLUIPA.
470. Defendants CCA’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from establishing an outdoor sacred space for worship substantially burdens DAVIS, HUGHES, KAAHU, KANE and KEAWE’s religious exercise and sincerely held religious beliefs.
471. Defendants CCA’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest.
124

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 125 of 129 PageID #: 2944
472. Defendants CCA’s aforementioned policy and actions therefore violate RLUIPA.
473. As a consequence of the above violations, Plaintiffs DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
474. As a direct, proximate and foreseeable result thereof, Plaintiff DAVIS, HUGHES, KAAHU, KANE, KEAWE and POAHA have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
COUNT XXVI: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS
475. Defendants STATE OF HAWAII’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from meeting with a spiritual advisor on a regular basis substantially burdens DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
476. Defendants STATE OF HAWAII’s aforementioned policy is not the least restrictive means of furthering any compelling governmental interest
125

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 126 of 129 PageID #: 2945
477. Defendants STATE OF HAWAII’s aforementioned policy and actions therefore violate RLUIPA.
478. Defendants CCA’s policy banning Native Hawaiian Practitioners who are serving their sentences at SCCF and/or RCCF from meeting with a spiritual advisor on a regular basis substantially burdens DAVIS, HOLBRON, HUGHES, KAAHU, KANE, KEAWE and POAHA’s religious exercise and sincerely held religious beliefs.
479. Defendants CCA’s aforementioned policy not the least restrictive means of furthering any compelling governmental interest.
480. Defendants CCA’s aforementioned policy and actions therefore violate RLUIPA.
481. As a consequence of the above violations, Plaintiffs have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
482. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
126

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 127 of 129 PageID #: 2946
1. Issue an order, pursuant to Federal Rule of Civil Procedure 23, certifying this action as a Class Action, Appoint Plaintiffs as the representatives of the Class; and Appoint Counsel for Plaintiffs as Class Counsel;
2. Declare that Defendants have violated Plaintiffs’ and all other class members’ rights under the Free Exercise Clause of the First Amendment of the United States Constitution;
3. Declare that Defendants have violated Plaintiffs’ and all other class members’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
4. Declare that Defendants have violated Plaintiffs’ and all other class members’ rights under the Free Exercise Clause of the Hawaii State Constitution;
5. Declare that Defendants have violated Plaintiffs’ and all other class members’ rights under the Equal Protection Clause of the Hawaii State Constitution;
6. Declare that Defendants have violated Plaintiffs’ and all other class members’ rights under Article XII Section 7 of Hawaii State Constitution and H.R.S. 1-1;
7. Declare that Defendants violated RLUIPA;
127

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 128 of 129 PageID #: 2947
8. Order Defendants to allow Plaintiffs and all other class members to exercise their Native Hawaiian religion by gathering once daily in observance of the Native Hawaiian Religion as requested by Plaintiffs;
9. Order Defendants to allow Plaintiffs and all other class members to exercise their Native Hawaiian religion by participating in certain and specific ceremonies critical to their observation of the annual Makahiki Season as requested by Plaintiffs;
10. Order Defendants to allow Plaintiffs and all other class members to exercise their Native Hawaiian religion by using and maintaining traditional and customary objects and items that are essential to expressing their religious belief and faith as requested by Plaintiffs
11. Order Defendants to allow Plaintiffs and all other class members to exercise their Native Hawaiian religion by constructing and accessing an outdoor sacred space to expressing their religious belief and faith as requested by plaintiffs
12. Order Defendants to allow Plaintiffs and all other class members to exercise their Native Hawaiian religion by meeting a spiritual leader on a daily basis to expressing their religious belief and faith as requested by plaintiffs.
13. Order Defendants to develop a comprehensive plan and promulgate official policy guidelines on how Native Hawaiians who have been convicted and
128

Case 1:11-cv-00144-LEK-BMK Document 145 Filed 08/22/12 Page 129 of 129 PageID #: 2948
sentenced under the laws of the State of Hawaii can practice their religion on a regular and equal basis with all other religions represented at correctional facilities.
14. Appoint a Special Master to monitor Defendants’ compliance with the relief granted by this Court;
15. Grant Plaintiffs and all other class members compensatory damages against Defendants jointly and severally, in an amount to be proven at trial.
16. Award Plaintiffs and all other class members their costs, including reasonable attorneys’ fees and costs, as authorized by statute; and
17. Grant such other and further appropriate relief as this Court deems just and proper.
DATED: Honolulu, Hawaii, August 22, 2012.
/s/ Andrew B. Sprenger ANDREW B. SPRENGER SHARLA MANLEY JAMES KAWAHITO SHAWN C. WESTRICK Attorneys for Plaintiffs
129

 
 Case 1:11-cv-00144-LEK-BMK Document 1 Filed 03/08/11 Page 1 of 4 PageID #: 1

ROECA LURIA HIRAOKA LLP
A Limited Liability Law Partnership
APRIL LURIA al uria@rlhlaw. com 900 Davies Pacific Center 841 Bishop Street Honolulu, Hawai'i 96813-3917 Telephone: (808) 538-7500 Facsimile: (808) 521-9648

4687-0

Attorneys for Defendants Neil Abercrombie, in his official capacity as the Governor ofthe State ofHawaii, Jodie Maesaka-Hirata in her official capacity as Interim Director ofthe Hawaii Department of Public Safety, and Corrections Corporation of America

FILED IN THE UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII ~
MAR 08 2011 at !b o'clock and ~0 min~ •
SUE BEITIA, CLERK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAll

RICHARD KAPELA DAVIS, MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, and ELLINGTON KEAWE,
Plaintiffs,
vs.

tV CIVIL NO. ----------------
(Declaratory and Injunctive Relief and Other Civil Action)

DEFENDANTS' NOTICE OF

REMOVAL; DECLARATION OF

APRIL LURIA·' CERTIFICATE

EXHIBIT "A"·' OF SERVICE

NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawaii; JODIE MAESAKA-HIRATA, in her official capacity as Interim Director of the Hawaii Department of Public Safety, CORRECTIONS

3288372.1

Case 1:11-cv-00144-LEK-BMK Document 1 Filed 03/08/11 Page 2 of 4 PageID #: 2

CORPORATION OF AMERICA, Defendants.

DEFENDANTS' NOTICE OF REMOVAL

TO:

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAll

Pursuant to 28 USC §§ 1441 and 1446 and Rules 11 and 81 (c) of the

Federal Rules of Civil Procedure, Defendants Neil Abercrombie, in his official

capacity as the Governor of the State of Hawaii, Jodie Maesaka-Hirata, in her

official capacity as Interim Director of the Hawaii Department ofPublic Safety,

and Corrections Corporation of America, (collectively "Defendants") through

counsel, hereby notice the removal of the above-captioned case from the Circuit

Court ofthe First Circuit, State ofHawai'i, filed under Civil No. 11-1-0266-02

RMB, to this Court and in support thereof asserts:

1. On or about February 7, 2011, Plaintiffs Richard Kapela Davis,

Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane III, and

Ellington Keawe, (collectively "Plaintiffs") filed a Complaint against the above

named Defendants in the Circuit Court ofthe First Circuit, State ofHawai'i,

captioned Richard Kapela Davis, Michael Hughes, Damien Kaahu, Robert A.

Holbron, James Kane III, and Ellington Keawe vs. Neil Abercrombie, in his

official capacity as Governor ofthe State ofHawaii, Jodie Maesaka-Hirata, in her

-2-

Case 1:11-cv-00144-LEK-BMK Document 1 Filed 03/08/11 Page 3 of 4 PageID #: 3
official capacity as Interim Director ofthe Hawaii Department ofPublic Safety, Corrections Corporation ofAmerica, Civil No. 11-1-0266-02 RMB, (the "State Action"). A copy of the Complaint is attached as Exhibit "A."
2. The State Action, alleges among other claims, the deprivation of constitutional rights in violation of 42 U.S.C. § 1983 and the First and Fourteenth Amendments of the United States Constitution and is brought pursuant to the same.
3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. This action may be removed pursuant to 28 U.S.C. § 1441(b) because it is based on allegations of violations of the United States Constitution and 42 U.S.C. § 1983.
4. Defendants consent to removal. 5. This Notice of Removal is being filed within thirty (30) days after initial receipt ofthe Complaint and is timely filed under 28 U.S.C. § 1446(b). 6. An Answer and/or other response to Plaintiffs' Complaint will be timely filed in the United States District Court pursuant to Rule 81 (c) of the Federal Rules of Civil Procedure. 7. Promptly after filing this Notice of Removal, a Notice of Filing Notice of Removal will be filed in the Circuit Court of the First Circuit, State of Hawai'i on behalf of Defendants.
-3-

Case 1:11-cv-00144-LEK-BMK Document 1 Filed 03/08/11 Page 4 of 4 PageID #: 4

WHEREFORE, Defendants respectfully requests that the State Action

be removed to this Court.

MAR -7 ZOll

Dated: Honolulu, Hawai'i, -------------------------------

Att neys for Defendants Neil Abercrombie, in his official capacity as the Governor ofthe State of Hawaii, Jodie Maesaka-Hirata in her official capacity as Interim Director of the Hawaii Department ofPublic Safety, and Corrections Corporation of
America

- 4-

 
 Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 1 of 78 PageID #: 7

NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawai'i 96813 Telephone: (808) 521~2302 Fax: (808) 537~4268

ANDREW B. SPRENGER 7681

SHARLA MANLEY

8868

Attomeys for Plaintiffs

FIRSSTTACllIHoCrUHii.MCUO.U.!lRT flL[fl
2011 FEB -1 At\ lO: 5$

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI'I

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE III, and

)

ELLINGTON KEAWE,

)

)

Plaintiffs,

)

vs.

)

)

NEIL ABERCROMBIE, in his official

)

capacity as the Govemor ofthe State of

)

Hawaii; JODIE MAESAKA~HIRATA, in )

her official capacity as Interim Director of )

the Hawaii Department of Public Safety;

)

CORRECTIONS CORPORATION OF

)

AMEruCA,

)

Defendants.

)

_

_

_

_

_

_

_

_

_

_

_

_

_

)
)

CIVIL NO. _ _ 11_ -1-_02_66_..:_ :02__RMB
(Deolaratory and Injunctive Relief and Other Civil Action)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF and DAMAGES; SUMMONS

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
PRELIMINARY STATEMENT This is a State and Federal civil rights action for declaratory and injunctive relief and
damages. Plaintiffs, and other similarly situated individuals, are Native Hawaiian religious
practitioners who have been incarcerated under the laws of the State ofHawai'i, but are currently

I do hereby certify that this is afull, tru6, and co1Tect copy of the original on file in 's office.

EXt-HB\T_ A -

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 2 of 78 PageID #: 8
sei·ving their terms of sentence in for-profit private prisons under various governmental contracts with the State ofHawai'i.
Native Hawaiians, the indigenous people ofHawai'i, are an over-represented group in these privately-operated prison facilities. Many of them practice spiritual beliefs first established by their ancestors, who exercised sovereignty over the area that now comprises the state of Hawai'i.
The State ofHawai'i, through its elected and appointed officials, is allowing its private prison subcontractor to operate without any oversight, authority and/or control to protect its inmates. Consequently, the Defendants' deliberate actions and/or omissions have resulted in a violation of Plaintiffs' rights to exercise their religion as secured by the Hawaii State Constitution and the United States Constitution protecting their civil rights.
Plaintiffs ask this Court to address this wrong. This Court has jurisdiction to declare that the Defendants have violated the Hawaii State Constitution, and enjoin them from exercising a policy that causes such injury upon the Plaintiffs. This Court also holds concurrent jurisdiction to declare that Defendants have violated the U.S. Constitution, and enjoin them from exercising a policy that causes such injury upon the Plaintiffs pursuant to 42 U.S.C. § 1983. Plaintiffs are also entitled to seek damages caused by Defendants' violations.
JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to Hawaii Revised Statutes § 603-21.5(a)(3) and 42 U.S. C. § 1983. 2. This Comi has jurisdiction over all of the Defendants in this action pursuant Hawaii Revised Statutes§ 634-31 and/or§ 634-35(a)(l) and (4). 3. Plaintiffs' claims for declaratory relief to remedy the deprivation, under color of state law, ofrights guaranteed by Article 1, §§ 4 and 5, and Alticle XII,§ 7 ofthe Hawaii State
2

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 3 of 78 PageID #: 9
Constitution and H.R.S. § 1-1 is authorized under Hawaii Revised Statutes§§ 603-21.9(1), (6) and Rule 57 of the Hawaii Rules of Civil Procedure.
4. Plaintiffs' claims for injunctive reliefto remedy the deprivation, under color of state law, of rights guaranteed by Article 1, §§ 4 and 5, and Article XII, § 7 of the Hawaii State Constitution and H.R.S. § 1-1 is authorized under Hawaii Revised Statute §§ 603-23 and Rule 65 of the Hawaii Rules of Civil Procedure.
5. Plaintiffs' claims for declaratory and injunctive relief to remedy the deprivation, under color of state law, of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution is authorized under 42 U.S.C. § 1983 and Hawaii Revised Statutes§§ 603-21.9(1 ), (6).
6. Plaintiffs' claims for declaratory and injunctive relief to remedy the deprivation, under color of state law, of rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is authorized under 42 U.S.C. § 1983 and Hawaii Revised Statutes§§ 603-21.9(1), (6).
7. Venue in this circuit court is proper pursuant to Hawaii Revised Statute§§ 60336(5) because all of the events or omissions giving rise to these claims occuned in the City and County of Honolulu, State ofHawai'i and are under the control of Defendants residing in the City and County of Honolulu, State ofHawai'i.
THE PARTIES 8. Plaintiffs are, and were at all times mentioned herein, an adult citizen of the United States of America, and a resident of the state ofHawai'i. 9. Plaintiffs are descendants of the aboriginal people who, before 1778, occupied and exercised sovereignty in the area that now comprises the State ofHawai'i.
3

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 4 of 78 PageID #: 10
10. Plaintiffs has been convicted of violating crimes under Hawai'i state law and sentenced under the same.
11. In or around 2007, Plaintiffs were involuntarily transferred from either the State of Hawaii or from various private prisons owned and operated by Defendant Corrections Corporation of America ("CCA") to one of two of its private prisons in Eloy, Arizona pursuant to various contracts with the State of Hawaii and the Corrections Corporation of America.
12. Defendant NEIL ABERCROMBIE, Governor of the State ofHawai'i, is the chief executive ofthe State ofHawai'i, and is capable ofbeing sued in this Court. Defendant ABERCROMBIE is responsible for the supervision and management of all state instrumentalities and employees charged with (a) executing the State ofHawai'i's prison regulations and procedures; and (b) monitoring out-of-state public and private correctional facilities where Hawai'i state inmates are serving their sentences.
13. Defendant JODIE MAESAKA-HIRATA, the Interim Director ofthe State of Hawai'i Department of Public Safety, is sued in her official capacity as the state official responsible for overseeing the implementation of Chapter 353 of the Hawaii Revised Statutes, and more particularly, H.R.S. § 353-16.2 which concerns the oversight ofthose committed persons from the State of Hawaii who have been transfened to out-of-state institutions pursuant to contract with the State ofHawai'i.
14. Unless otherwise specified in this Complaint, Defendants NEIL ABERCROMBIE, and JODIE MAESAKA-HIRATA are collectively refened to as "Defendants STATE OF HAWAI' I."
15. As the primary legal custodian ofthose individuals incarcerated under its criminal statutes, Defendants STATE OF HAWAI' I must guarantee to those individuals the rights,
4

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 5 of 78 PageID #: 11
privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system, including those State of Hawaii committed persons who have been transferred to out~of-state institutions pursuant to contract with the State of Hawaii.
16. Defendant CCA is a private, for-profit corporation organized under the laws of the State of Tennessee. CCA manages and operates Saguaro and Red Rock Correctional Facilities ("SCF" and "RRCF," respectively), which presently supervises and controls committed persons convicted and sentenced under Hawai'i state laws pursuant to various contracts executed with the Defendants STATE OF HAWAI'I in exchange for substantial payments made by the State of Hawaii for this service.
17. Since at least 2002, Defendant CCA and the Defendants STATE OF HAWAil have been parties to various contracts executed in the State of Hawaii in which Defendant CCA accepted responsibility of supervising and controlling those individuals who have been convicted and sentenced under the criminal statutes of the State ofHawai'i and have been involuntarily transferred by Defendants STATE OF HAWAI'I to CCA prison facilities in exchange for substantial payments made by the State of Hawaii.
18. Based upon previous contractual relations with the State of Hawaii and based upon its present contracts with the State of Hawaii, Defendant CCA has sufficient and material contacts with the State of Hawaii and has therefore purposefully availed itself to the State that this Court may exercise its long-arm jurisdiction.
5

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 6 of 78 PageID #: 12
19. Moreover, Plaintiffs' claims arise out of said contracts between the Defendants STATE OF HAWAll and Defendant CCA which also allows this Court to properly exercise its long-arm jurisdiction.
20. As the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, Defendant CCA is charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF are state actors. Consequently, Defendant CCA and its employees of SCF and RRCF must guarantee to those individuals under its supervision and control the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system.
FACTUAL ALLEGATIONS 21. On infotmation and belief, Native Hawaiians make up the highest percentage of people incarcerated in CCA-operated facilities. 22. A recent study by the Office of Hawaiian Affairs concluded that Native Hawaiians constitute 41% of all persons incarcerated in outwofwstate facilities like Saguaro Conectional Center and Red Rock Conectional Center. Native Hawaiians constitute 39% of the imprisoned population, although they make up 24% of the general population ofHawai'i. 23. Upon infmmation and belief, in or around 2002, the Defendants STATE OF HAWAI' I executed one or more contracts with CCA delegating its statutory authority to supervise and monitor the custody of certain individuals who were convicted of violating crimes
6

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 7 of 78 PageID #: 13
under Hawai'i state law and sentenced under the same at a privately"owned correctional facility located in Eloy, Arizona.
24. Defendant CCA's execution of those previous and current contracts with the Defendants STATE OF HAWAI' I has established substantial contacts with the State of Hawaii and has purposefully availed itselfto the State of Hawaii concerning its scope ofresponsibility of supervision of Plaintiffs at CCA facilities.
25. PlaintiffRICHARD KAPELA DAVIS ("DAVIS") was convicted ofviolating crimes under Hawai'i state law and sentenced under the same. In or around 2006, DAVIS was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAil to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAll and CCA.
26. Plaintiff MICHAEL HUGHES ("HUGHES") was convicted of violating crimes under Hawai'i state law and sentenced under the same. In or around 2006, HUGHES was involuntarily transfen-ed from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAll and CCA.
27. PlaintiffDAMIEN KAAHU ("KAAHU") was convicted ofviolating crimes under Hawai'i state law and sentenced under the same. In or around 2006, KAAHU was involuntarily transfen·ed from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAll and CCA.
28. PlaintiffROBERT A. HOLBRON ("HOLBRON") was convicted of violating crimes under Hawai'i state law and sentenced under the same. In or around 2006, HOLBRON
7

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 8 of 78 PageID #: 14
was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAll to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAll and CCA. Plaintiffs are informed and believe that HOLBRON's security classification precludes him from the general population of inmates at SCF.
29. Plaintiff JAMES KANE III ("KANE") was convicted of violating crimes under Hawai'i state law and sentenced under the same. In or around 2007, KANE was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental contracts with the STATE OF HAWAil to RRCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAll and CCA. Plaintiffs are informed and believe that KANE's security classification precludes him from the general population of inmates at SCF.
30. Plaintiff ELLINGTON KEAWE ("KEAWE") was convicted of violating crimes under Hawai'i state law and sentenced under the same. In or around 2007, KEAWE was involuntarily transfened from a private prison owned and operated by CCA pursuant to previous govenunental contracts with the STATE OF HAWAll to RRCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA. Plaintiff'> are informed and believe that KEAWE's security classification precludes him from the general population of inmates at SCF.
31. Plaintiffs are Native Hawaiians whose religious and spiritual beliefs and practices originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
8

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 9 of 78 PageID #: 15
32. A critical tenet of Native Hawaiian religion essential to the sincere expression of Plaintiffs' faith is to congregate out of doors on a daily basis, preferably at dawn, to pule (pray), oli (chant), hula (dance), and perform other specific religious protocol activities.
33. A critical tenet ofNative Hawaiian religion essential to the expression of Plaintiffs' faith is to participate in certain religious rituals and ceremonies marking the beginning and end of the Makahiki season, a four month period dedicated to Lono, the Hawaiian god of agriculture, fertility and peace.
34. The Makahiki season is signaled by the rising of the Makali'i (Pleiades) Constellation in October-November of each year. The Makahiki season ends by the setting of Makali'i (Pleiades) Constellation in February-March of each year.
35. The ceremonies marking the beginning and end ofMakahiki Season includes the following customary and traditional activities critical to the Native Hawaiian faith: a) a sumise service; b) a two-hour session dressing the image ofLono, and preparing offerings and giving offerings, including chanting and dancing; c) a one-hour procession; d) a 30-minute opening prayer; e) a 1.5-hour session of traditional games; f) a two-hour session of chanting, prayer, and an awa ceremony; g) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. These activities should be performed outdoors by all practitioners, as well as attendance and presence of a kahu or other religious leaders.
36. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs' faith is to have access to the following sacred items required for specific religious protocol activities: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'oZena (yellow ginger), a
9

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 10 of 78 PageID #: 16
kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd dmm), 'ohe ka eke 'eke (percussion instrument),pu niu (small knee dmm), 'ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
37. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs' faith is to establish an out-of-doors altar composed of at least two spiritually significant stones as a focal point for specific religious protocol activities.
38. A critical tenet ofNative Hawaiian religion essential to the expression of Plaintiffs' faith is to regularly meet with a respected kahu (religious) leader to assist in their worship activities.
39. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed to exercise their religion by gathering together on a regular basis to pray, chant, and perform other activities that are essential to expressing their faith without unreasonable disturbance and/or intrusion from employees of SCF or other inmates.
40. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to exercise their religion by gathering together on a regular basis to pray, chant, and perform other activities that are essential to expressing their faith without unreasonable disturbance and/or intrusion from employees of SCF or other inmates.
41. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed to participate in religious ceremonies and rituals at specified times during the year that are integral to their faith and that express their religious and spiritual beliefs.
10

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 11 of 78 PageID #: 17
42. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to participate in religious ceremonies and rituals at specified times during the year that are integral to their faith and that express their religious and spiritual beliefs.
43. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF are allowed access to religious items that are integral to their faith and that express their religious and spiritual beliefs.
44. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to access to religious items that are integral to their faith and that express their religious and spiritual beliefs.
45. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF ate allowed to access a worship space appropriate to their faith and that express their religious and spiritual beliefs.
46. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in RRCF are allowed to access a worship space appropriate to their faith and that express their religious and spiritual beliefs.
47. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in SCF have regular and frequent access to a spiritual advisor to assist them in practicing their respective faiths.
48. Plaintiffs are informed and believe that other prisoners of other religions who are incarcerated in RRCF have regular and frequent access to a spiritual advisor to assist them in practicing their respective faiths.
11

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 12 of 78 PageID #: 18
49. Plaintiffs are informed and believe that other prisoners of other religions who are precluded from the general population at SCF are allowed to exercise their religion by regularly meeting with a spiritual advisor to assist in: a) regular worship activities; b) special worship activities for certain religiously significant holidays; and c) providing access to sacred worship items essential to expressing their faith.
50. Plaintiffs are informed and believe that the Defendant CCA provides regularly scheduled weekly educational classes on topics concerning Native Hawaiian culture, language and history at SCF.
51. Plaintiffs are informed and believe that the Warden and or other personnel at SCF authorizes only certain inmates to supervise, lead, control and teach those educational classes on topics concerning Native Hawaiian culture, language and history.
52. Plaintiffs are informed and believe that the Warden and or other personnel at SCF retain absolute discretion to modify, cancel and/or reschedule the weekly Native Hawaiian educational classes without notice.
53. Plaintiffs are informed and believe that the CCA does not provide any Hawaiian educational classes to inmates who are incarcerated at RRCF.
54. Plaintiffs are informed and believe that CCA provides only an arbitrarily selected group of Native Hawaiian religious practitioners who are incarcerated in facilities located at SCF to participate in a ceremony to observe the beginning and ending of the Makahiki Season with certain religious protocol and the use of certain sacred items. Consequently, Plaintiffs are informed and believe that those Native Hawaiian religious practitioners who are arbitrarily denied in participating in the Makahiki Season ceremonies are relegated to only attend and observe those activities, if at all.
12

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 13 of 78 PageID #: 19
55. Plaintiffs are informed and believe that CCA does not provide any Native Hawaiian religious practitioners who are incarcerated in facilities located at RRCF to participate in a ceremony to observe the beginning and ending of the Makahiki Season.
56. Plaintiffs are informed and believe that SCF provides inmates who are Christian with the option of being housed in a separate area within SCF that allows them to: a) worship together on a daily basis; b) observe all important holidays with specific protocol; c) access religiously sacred items and educational materials required oftheir faith; d) access to a spiritually significant space for worship activities; and e) meet regularly with a spiritual teacher/leader to assist in their worship.
57. In or around July 2009, DAVIS, HUGHES, KAAHU, KANE and KEAWE each submitted an inmate request form, in accordance with CCA's administrative procedure, requesting to be allowed to gather daily with fellow Native Hawaiian inmates in observance of the Native Hawaiian Religion. Plaintiffs requested that these gatherings occur at an outdoor location during sunrise, last approximately 30 minutes, and include chanting, dandng and prayer.
58. In or around July 2009, HOLBRON submitted an inmate request form, in accordance with CCA's administrative procedure, requesting to be allowed to meet with a spiritual advisor to chant, dance and pray in observance of the Native Hawaiian Religion.
59. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU's request for daily gatherings. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed timely a formal grievance form seeking reconsideration of the denial.
13

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 14 of 78 PageID #: 20
60. In or around August 2009, employees at SCF denied HOLBRON's request for gatherings with a spiritual advisor. Pursuant to CCA's administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
61. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU's grievance concerning the denial of their request for daily gatherings. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed a timely appeal seeking reconsideration of the denial.
62. In or around August 2009, employees at SCF denied HOLBRON's grievance concerning the denial of meeting with a spiritual leader for gatherings. Pursuant to CCA's administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
63. In or around August 2009, the Warden ofSCF denied DAVIS, HUGHES and KAAHU's appeal concerning the denial of their request for daily gatherings. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU have now administratively exhausted this claim.
64. As a consequence ofthe Warden's denial, above, DAVIS, HUGHES and KAAHU were unable to gather with other practitioners to practice their Native Hawaiian faith with dance, chanting and prayer in a spiritually meaningful way.
65. From approximately January to November 2010, SCF restricted DAVIS, HUGHES and KAAHU from attending any of its Native Hawaiian cultural educational classes, apparently due to their prior lack of regular attendance.
66. As of November 2010, however, SCF allowed DAVIS, HUGHES and KAAHU to attend its Native Hawaiian cultural educational classes.
14

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 15 of 78 PageID #: 21
67. KAAHU, however, cannot attend any of the Native Hawaiian cultural education classes because he is a participant in the "R-DAP" substance abuse program, recommended by the parole board to assist in his early release. The R-DAP meetings conflict with the Native Hawaiian cultural education classes, and administer sanctions and penalties against KAAHU for attending the Native Hawaiian cultural education classes instead of the R-DAP meetings.
68. In or around August 2009, the Warden ofSCF denied HOLBRON's appeal concerning the denial of his request to meet with a spiritual leader.
69. As a consequence of the Warden's denial, above, HOLBRON has been unable to gather with a kahu to practice his Native Hawaiian faith with dance, chanting and prayer in a spiritually meaningful way.
70. In or around August 2009, employees at RRCF denied KANE and KEAWE's request for daily gatherings. Pursuant to CCA's administrative procedure, KANE then filed timely a formal grievance form seeking reconsideration of the denial.
71. In or around August 2009, employees at RRCF denied KANE and KEAWE's grievance concerning the denial of their request for daily gatherings. Pursuant to CCA's administrative procedure, KANE then filed a timely appeal seeking reconsideration of the denial.
72. In or around August 2009, the Warden ofRRCF denied KANE's appeal concerning the denial of their request for daily gatherings. Pursuant to CCA's administrative procedure, KANE and KEAWE have now administratively exhausted this claim.
73. In or around July 2009 DAVIS, HUGHES, KAAHU, and KANE each submitted an inmate request form requesting to be allowed to celebrate the opening and closing days of the 2009-10 Makahiki Season.
15

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 16 of 78 PageID #: 22
74. With respect to the Makahiki requests as described above, DAVIS, HUGHES, KAAHU, and KANE requested permission to perform certain religious rituals and ceremonies that included the following activities: a) two~hour preparation session on the day before; b) a sunrise service; c) a two~hour session dressing the image ofLono, and preparing offerings and giving offerings, including chanting and dancing; d) a one-hour procession; e) a 30~minute opening prayer; f) a 1.5~hour session of traditional games; g) a two~hour session of chanting, prayer, and an awa ceremony; h) a 30~minute clean up session; i) a three~hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. They requested access to the
outdoors for all the above activities, as well as attendance and presences of a kahu or other
religious leaders. 75. In or around July 2009 HOLBRON submitted an inmate request form requesting
to be allowed to meet with a spiritual advisor to assist in celebrating the opening and closing of the 2009~ 10 Makahiki Season with activities commensurate with his security level.
76. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU's request to celebrate Makahiki. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed timely a fmmal grievance form seeking reconsideration of the denial.
77. In or around August 2009, employees at SCF denied HOLBRON's request to
meet with a spiritual advisor to celebrate Makahiki. Pursuant to CCA's administrative
procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
16

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 17 of 78 PageID #: 23
78. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU's grievance concerning the denial oftheir request to celebrate Makahiki. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed a timely appeal seeking reconsideration of the denial.
79. In or around August 2009, employees at SCF denied HOLBRON's grievance concerning the denial of meeting with a spiritual leader to celebrate Makahild. Pursuant to CCA's administrative procedure, HOLBRON then filed timely a fmmal grievance form seeking reconsideration of the denial.
80. In or around August 2009, the Warden ofSCF denied DAVIS, HUGHES and KAAHU's appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU have now administratively exhausted this claim.
81. In or around August 2009, the Warden ofSCF denied HOLBRON's appeal concerning the denial of his request to meet with a spiritual leader to celebrate Makahiki. Pursuant to CCA's administrative procedure, HOLBRON has now administratively exhausted this claim.
82. Upon information and belief, SCF authorized some Native Hawaiian practitioners the opportunity to observe the opening day ofthe 2009~10 Makahiki Season in November 2009 with a religious ceremony, but denied DAVIS, HUGHES and KAAHU the opportunity to participate apparently due to their lack of regular participation in the Native Hawaiian education culture classes.
83. Upon information and belief, SCF authorized some Native Hawaiian practitioners the opportunity to observe the closing day of the 2009~ 10 Makahiki Season in February 2010
17

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 18 of 78 PageID #: 24
with a religious ceremony, but denied DAVIS, HUGHES and KAAHU the opportunity to participate apparently due to their lack of regular participation in the Native Hawaiian education culture classes.
84. HOLBRON was unable to observe the opening or closing day of the 2009~ 10 Makahiki Season in any meaningful way.
85. In or around August 2009, employees at RRCF denied KANE's request to celebrate Makahiki. Pursuant to CCA's administrative procedure, KANE then filed timely a formal grievance form seeking reconsideration of the denial.
86. In or around August 2009, employees at RRCF denied KANE's grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, KANE then filed a timely appeal seeking reconsideration of the denial.
87. In or around August 2009, the Warden ofRRCF denied KANE's appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, KANE has now administratively exhausted this claim.
88. As a consequence of the Warden's denial, above, KANE was unable to observe the 2009-2010 Makahiki Season in a spiritually meaningful way.
89. In or around July 2009, DAVIS, HUGHES, KAAHU, KANE and KEAWE each submitted an inmate request form requesting access to religiously significant objects for daily use and for use during the Makahiki celebration.
90. Specifically, DAVIS, HUGHES, KAAHU, KANE and KEAWE sought access to: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell),
18

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 19 of 78 PageID #: 25
pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument),pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
91. In or around July 2009 HOLBRON submitted an irunate request form requesting to be allowed to meet with a spiritual advisor to assist him in using the following sacred items to
practice his faith: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'oZena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted),pu kani (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument),pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural
fibers). 92. In or around August 2009, employees at SCF denied DAVIS, HUGHES and
KAAHU's request for access to those sacred items described above. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed timely a formal grievance form seeking reconsideration of the denial.
93. In or around August 2009, employees at SCF denied HOLBRON's request to meet with a spiritual advisor to access those sacred items described above. Pursuant to CCA's administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
94. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU's grievance concerning the denial of access to those sacred items. Pursuant to CCA's
19

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 20 of 78 PageID #: 26
administrative procedure, DAVIS, HUGHES and KAAHU then filed a timely appeal seeking reconsideration of the denial.
95. In or around August 2009, employees at SCF denied HOLBRON's grievance concerning the denial of meeting with a spiritual leader to access those sacred items. Pursuant to CCA's administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
96. In or around August 2009, the Warden of SCF denied DAVIS, HUGHES and KAAHU's appeal concerning the denial of their request to access those sacred items. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU have now administratively exhausted this claim.
97. As a consequence ofthe Warden's denial, above, DAVIS, HUGHES and KAAHU have been unable to practice their Native Hawaiian faith with those sacred items to worship in a spiritually meaningful way.
98. In or around August 2009, the Warden ofSCF denied HOLBRON's appeal concerning the denial of his request to meet with a spiritual leader to access those sacred items. Pursuant to CCA's administrative procedure, HOLBRON has now administratively exhausted this claim.
99. As a consequence of the Warden's denial, above, HOLBRON has been unable to practice his Native Hawaiian faith with those sacred items to worship in a spiritually meaningful way.
100. In or around August 2009, employees at RRCF denied KANE's request to access those sacred items. Pursuant to CCA's administrative procedure, KANE then filed timely a formal grievance form seeking reconsideration of the denial.
20

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 21 of 78 PageID #: 27
101. In or around August 2009, employees at RRCF denied KANE's grievance concerning the denial of his request to access those sacred items. Pursuant to CCA's administrative procedure, KANE then filed a timely appeal seeking reconsideration of the denial.
102. In or around August 2009, the Warden ofRRCF denied KANE's appeal concerning the denial of his request to access those sacred items. Pursuant to CCA's administrative procedure, KANE has now administratively exhausted this claim.
103. As a consequence of the Warden's 'denial;' above, KANE has been unable to practice his Native Hawaiian faith with those sacred items to worship in a spiritually meaningful way.
104. In or around July 2009, DAVIS, HUGHES, KAAHU and KANE each submitted an inmate request form requesting authorization to prepare a sacred space in their respective prison yards with at least two spiritually significant stones to serve as a focal point for their worship activities.
105. In or around August 2009, employees at SCF denied DAVIS, HUGHES and KAAHU's request for authorization to prepare a sacred space for their worship activities at SCF. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed timely a formal grievance form seeking reconsideration of the denial.
106. In or around August 2009; employees at·SCF denied DAVIS, HUGHES and KAAHU's grievance concerning the denial of their request to prepare a sacred space at SCF. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and K.AAHU then filed a timely appeal seeking reconsideration of the denial.
107. In or around August 2009, the Warden ofSCF denied DAVIS, HUGHES and KAAHU's appeal concerning the denial of their request to prepare a sacred space at SCF.
21

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 22 of 78 PageID #: 28
Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU have now administratively exhausted this claim.
108. In or around August 2009, employees at RRCF denied KANE and KEAWE's request for authorization to prepare a sacred space for their worship activities at RRCF. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU then filed timely a formal grievance form seeking reconsideration of the denial.
109. In or around August 2009, employees at RRCF denied KANE's grievance concerning the denial of his request to prepare a sacred space at RRCF. Pursuant to CCA's administrative procedure, KANE and KEAWE then filed a timely appeal seeking reconsideration of the denial.
110. In or around August 2009, the Warden at SCF denied DAVIS, HUGHES and KAAHU's appeal concerning the denial of their request to prepare a sacred space at SCF. Pursuant to CCA's administrative procedure, DAVIS, HUGHES and KAAHU have now administratively exhausted this claim.
111. In or around July 2009, DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE each submitted an inmate request form requesting authorization to meet regularly with a spiritual advisor.
112. In or around August 2009, employees at SCF denied DAVIS, HUGHES KAAHU and HOLBRON's request to meet regularly with a spiritual advisor. Pursuant to CCA's administrative procedure, DAVIS, HUGHES KAAHU and HOLl3RON then filed timely a formal grievance form seeking reconsideration of the denial.
113. In or around August 2009, employees at SCF denied DAVIS, HUGHES KAAHU and HOLBRON's grievance concerning the denial of their request to meet regularly with a
22

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 23 of 78 PageID #: 29
spiritual advisor. Pursuant to CCA's administrative procedure, DAVIS, HUGHES, KAAHU and HOLBRON then filed a timely appeal seeking reconsideration of the denial.
114. In or around August 2009, the Warden ofSCF denied DAVIS, HUGHES KAAHU and HOLBRON's appeal concerning the denial of their request to meet regularly with a spiritual advisor. Pursuant to CCA's administrative procedure, DAVIS, HUGHES, KAAHU and HOLBRON have now administratively exhausted this claim.
115. As a consequence ofthe Warden's denial, above, DAVIS, HUGHES, KAAHU and HOLBRON have been unable to practice their Native Hawaiian faith with the attendance and guidance of a kahu in a spiritually meaningful way.
116. In or around August 2009, employees at RRCF denied KANE and KEAWE's request to meet regularly with a spiritual advisor. Pursuant to CCA's administrative procedure, KANE and KEAWE then filed timely a formal grievance form seeking reconsideration of the denial.
117. In or around August 2009, employees at RRCF denied KANE and KEAWE's grievance concerning the denial oftheir request to meet regularly with a spiritual advisor. Pursuant to CCA's administrative procedure, KANE and KEAWE then filed a timely appeal seeking reconsideration of the denial.
118. In or around August 2009, the Warden ofRRCF denied KANE and KEAWE's appeal concerning the denial of their request to meet regularly with a spiritual advisor. Pursuant to CCA's administrative procedure, KANE and KEAWE have now administratively exhausted this claim.
23

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 24 of 78 PageID #: 30
119. As a consequence of the Warden's denial, above, KANE and KEA WE have been unable to practice their Native Hawaiian faith with the attendance and guidance of a kahu in a spiritually meaningful way.
120. In or around July 2010 DAVIS, HUGHES, and KEAWE each submitted an inmate request form requesting to be allowed to celebrate the opening and closing days of the 20 10-11 Makahiki Season.
121. With respect to the Makahiki requests as described above, DAVIS, HUGHES, and KEAWE requested permission to perf01m certain religious rituals and ceremonies that included the following activities: a) two-hour preparation session on the day before; b) a sunrise service; c) a two-hour session dressing the image of Lono, and preparing offerings and giving offerings, including chanting and dancing; d) a one-hour procession; e) a 30-minute opening prayer; f) a 1.5-hour session of traditional games; g) a two-hour session of chanting, prayer, and an awa ceremony; h) a 30-minute clean up session; i) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. They requested access to the outdoors for all the above activities, as well as attendance and presences of a kahu or other religious leaders.
122. In or around July 2010, HOLBRON submitted an inmate request form requesting to be allowed to meet with a spiritual advisor to assist in celebrating the opening and closing days of the 2010-11 Makahiki Season with activities commensurate with his security level.
123. In or around August 2010, employees at SCF denied DAVIS and HUGHES's request to celebrate Makahiki. Pursuant to CCA's administrative procedure, DAVIS and HUGHES then filed timely a formal grievance form seeking reconsideration of the denial.
24

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 25 of 78 PageID #: 31
124. In or around August 2010, employees at SCF denied HOLBRON's request to meet with a spiritual advisor to celebrate Makahiki. Pursuant to CCA' s administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration of the denial.
125. In or around August 2010, employees at SCF denied DAVIS and HUGHES's grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, DAVIS and HUGHES then filed a timely appeal seeking reconsideration of the denial.
126. In or around August 2010, employees at SCF denied HOLBRON's grievance concerning the denial of meeting with a spiritual leader to celebrate Makahiki. Pursuant to CCA's administrative procedure, HOLBRON then filed timely a formal grievance form seeking reconsideration ofthe denial.
127. In or around August 2010, the Warden of SCF denied DAVIS and HUGHES's appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, DAVIS, and HUGHES have now administratively exhausted this claim.
128. In or around August 2010, the Warden of SCF denied HOLBRON's appeal concerning the denial of his request to meet with a spiritual leader to celebrate Makahiki. Pursuant to CCA's administrative procedure, HOLBRON has now administratively exhausted this claim.
129. Upon information and belief, SCF authorized some Native Hawaiian practitioners the opportunity to observe the opening day ofthe 2010~11 Makahiki Season in November 2010
25

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 26 of 78 PageID #: 32
with a religious ceremony. DAVIS, HUGHES and KAAHU were allowed the opportunity to observe the ceremony, but were not allowed to participate in any spiritually meaningful way.
130. On or about January 25, 2011, SCF authorized some Native Hawaiian practitioners to gather for the ostensible purpose of observing the closing day of the 2010-11 Makahiki Season, but approximately six weeks earlier than the setting of the Makali'i (Pleiades) Constellation.
131. DAVIS and HUGHES were allowed the opportunity to observe the January 25, 2011 ceremony, but were not allowed to patticipate in any spiritually meaningful way.
132. KAAHU did not attend the January 25,2010 ceremony because the Makahild Season because the Makali'i (Pleiades) Constellation had not yet set to mark the ending of the Makahild Season.
133. HOLBRON was unable to observe the opening or closing day ofthe 2010-11 Makahiki Season in any meaningful way.
134. In or around August 2010, employees at RRCF denied KEAWE's request to celebrate Makahiki. Pursuant to CCA's administrative procedure, KEAWE then filed timely a formal grievance form seeking reconsideration of the denial.
135. In or around August 2010, employees at RRCF denied KEAWE's grievance concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, KEAWE then filed a timely appeal seeking reconsideration of the deniaL
136. In or around August 2010, the Warden ofRRCF denied KEAWE's appeal concerning the denial of their request to celebrate Makahiki. Pursuant to CCA's administrative procedure, KEAWE has now administratively exhausted this claim.
26

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 27 of 78 PageID #: 33
137. As a consequence of the Warden's denial, above, neither KEAWE nor KANE were able to observe the 2009-2010 Makahiki Season in a spiritually meaningful way.
138. On information and belief, Plaintiffs have exhausted all ofthe administrative remedies required by all of Defendants in relation to their request to practice and express their religion and perfom1 other activities that are essential to expressing their religious belief and faith.
CLAIMS FOR RELIEF VIOLATION OF FIRST AND FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION RELATING TO FREE EXERCISE OF RELIGION 139. Plaintiffs re-allege paragraphs 1 through 138, and incorporate them herein by
reference. 140. The Free Exercise Clause of the First Amendment to the U.S. Constitution
provides that "Congress shall make no law ... prohibiting the free exercise [of religion]." 141. 42 U.S.C. § 1983 provides in relevant part: "[e]very 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 equity, or other proper proceeding for redress..."
142. The Free Exercise Clause ofthe First Amendment is applied to the Defendants STATE OF HAWAil through the Fourteenth Amendment of the U.S. Constitution as state actors.
143. The Free Exercise Clause ofthe First Amendment applies to Defendant CCA, through the Fourteenth Amendment to the U.S. Constitution because its task of supervising and
27

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 28 of 78 PageID #: 34
controlling State ofHawai'i inmates is a task that is traditionally and fundamentally performed by the government, and thus is state actor.
COUNT I: AS TO DAILY WORSHIP VIOLATIONS 144. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when inmates of a ce1iain religion can congregate for group worship. 145. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship. 146. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship. 147. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE to meet with other Native Hawaiian practitioners on a daily basis for group worship in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests. 148. Consequently, Defendant CCA's refusal ofDAVIS, HUGHES, KAAHU, KANE and KEAWE from meeting with other Native Hawaiian practitioners on a daily basis for group
28

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 29 of 78 PageID #: 35
worship in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
149. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
150. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when administrative segregation inmates of a certain religion can meet with a spiritual advisor on a regular basis.
151. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from regularly meeting with a spiritual advisor on a regular basis.
152. Consequently, Defendant STATE OF HAWAH's actions and or omissions have resulted in CCA's policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
153. Consequently, Defendant CCA's policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of the Free Exercise
29

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 30 of 78 PageID #: 36
Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
154. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
155. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT H: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 156. Upon information and belief, the Defendants STATE OF HAWAli are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates of a cetiain religion can observe important religious days with certain protocol. 157. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicyrnaker at SCF to enforce a corporate policy and/or customary practice that allows only some Native Hawaiian Practitioners to observe the opening and closing days ofMakahiki Season with certain religious protocol. 158. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice refusing all Native Hawaiian Practitioners from observing the opening and closing days ofMakahiki Season with certain religious protocol. 159. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and
30

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 31 of 78 PageID #: 37
KEAWE to observe the opening and closing days of the Makahiki Season violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
160. Consequently, Defendant CCA's refusal of DAVIS, HUGHES, and KAAHU, KANE and KEAWE from observing the opening and closing days of the Makahiki Season violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
161. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
162. Upon information and belief, the Defendants STATE OF HAWAli are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to observe important religious days with specific protocol.
163. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to observe the opening and closing of Makahild with specific protocol.
164. Consequently, Defendant STATE OF HAWAU's actions and or omissions have resulted in CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to
31

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 32 of 78 PageID #: 38
observe important religious days with specific protocol violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
165. Consequently, Defendant CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to observe the opening and closing ofMakahiki with specific protocol violates the Free Exercise Clause ofthe First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
166. As a consequence ofthe above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
167. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT III: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 168. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the altemative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates can access sacred items critical to the worship of their faith. 169. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'oZena (yellow
32

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 33 of 78 PageID #: 39
ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
170. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'alena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted),pu kani (conch shell),pahu (tree stump drum), ipu (gourd dmm), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
171. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's access the above listed sacred items violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
172. Consequently, Defendant CCA's refusal of DAVIS, HUGHES, KAAHU, KANE and KEAWE to access the above listed sacred items violates the Free Exercise Clause of the
33

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 34 of 78 PageID #: 40
First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
173. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
174. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to utilize certain sacred objects critical to the worship oftheir faith.
175. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to assist in the use of malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'oZena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
176. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to access
34

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 35 of 78 PageID #: 41
those sacred items violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
177. Consequently, Defendant CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
178. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
179. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT IV: AS TO ACCESS TO SACRED SPACE VIOLATIONS 180. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize a sacred space for inmates to engage in religious worship activities. 181. Upon information and belief, Defendant CCA authorized Todd Thomas, an
I
employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
35

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 36 of 78 PageID #: 42
182. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
183. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish a sacred outdoor space with at least two spiritually significant stones for group worship violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
184. Consequently, Defendant CCA's refusal of DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish a sacred outdoor space violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
185. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
186. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT V: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS
36

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 37 of 78 PageID #: 43
187. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize inmates to meet with a spiritual advisor on a regular basis.
188. Upon inf01mation and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymak:er at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from meeting with a spiritual advisor on a regular basis.
189. Upon infmmation and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from to meet with a spiritual advisor on a regular basis.
190. Consequently, Defendant STATE OF HAWAll's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual advisor on a regular basis violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
191. Consequently, Defendant CCA's refusal ofDAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual advisor on a regular basis violates the Free Exercise Clause of the First Amendment to the U.S. Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
37

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 38 of 78 PageID #: 44

192. As a consequence of the above violation, DAVIS, HUGHES, KAAHU

HOLBRON, KANE and KEAWE have suffered, and continue to suffer irreparable injury that

can only be readdressed by declaratory and injunctive relief.

193. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered

damages caused by Defendants' violations as described above in amounts to be established at

trial.

VIOLATION OF EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

194. reference.
195.

Plaintiffs re-allege paragraphs 1 through 138, and incorporate them herein by The Equal Protection Clause of the Fomteenth Amendment to the U.S.

Constitution provides that no State shall "deny to any person within its jurisdiction, the equal

protection of the laws."

196. 42 U.S.C. § 1983 provides in relevant part: "[e]very 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 equity,

or other proper proceeding for redress..."

197. The Equal Protection Clause of the Fourteenth Amendment to the U.S.

Constitution is applied to the Defendants STATE OF HAWAU through the Fourteenth

Amendment of the U.S. Constitution as state actors.

198. The Equal Protection Clause ofthe Fomteenth Amendment to the U.S.

Constitution applies to Defendant CCA, because its task of supervising and controlling State of

38

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 39 of 78 PageID #: 45
Hawai'i inmates is a task that is traditionally and fundamentally performed by the government, and thus is state actor.
COUNT VI: AS TO DAILY WORSHIP VIOLATIONS 199. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs' religion. 200. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and gives preference of those faiths over Plaintiffs' religion. 201. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs' religion. 202. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofre:(using DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro
39

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 40 of 78 PageID #: 46
and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
203. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
204. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE· and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
205. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT VII: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 206. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all oftheir Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows imnates of only certain religions to observe their impmiant holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs' religion.
40

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 41 of 78 PageID #: 47
207. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to observe their impottant holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs' religion.
208. Upon information and belief, Defendant CCA authorized Bmno Stole, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to observe their impottant holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs' religion.
209. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their impmtant holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause ofthe Fourteenth Amendments to the U.S. Constitution.
210. Consequently, Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their impotiant holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
41

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 42 of 78 PageID #: 48
211. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
212. Upon information and belief, the Defendants STATE OF HAWAli are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in observing important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs' religion.
213. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in the observance of important holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs' religion.
214. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to meet with their respective spiritual leader to assist in observing their important holidays has denied Plaintiffs the equal protection of the laws as
42

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 43 of 78 PageID #: 49
guaranteed by the Equal Protection Clause of the Fomteenth Amendments to the U.S. Constitution.
215. Consequently, Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to assist in observing their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
216. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
217. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT VIII: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 218. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs' religion.
43

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 44 of 78 PageID #: 50
219. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs' religion.
220. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs' religion.
221. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request access malo, kihei and pau (native garments), block of lama wood, kapa, pa'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted),pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Con·ectional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection ofthe laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
44

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 45 of 78 PageID #: 51
222. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to access malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kant (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument),pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fomieenth Amendments to the U.S. Constitution.
223. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
224. Upon infonnation and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and gives preference of those faiths over Plaintiffs' religion.
225. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a
45

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 46 of 78 PageID #: 52
corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and give preference of those faiths over Plaintiffs' religion.
226. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to access the following items of worship malo, kihei andpau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu, heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
227. Consequently, Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to access the following items ofworship malo, kihei andpau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell hom), and moena (floor
46

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 47 of 78 PageID #: 53
mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
228. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
229. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT IX: AS TO ACCESS TO SACRED SPACE VIOLATIONS 230. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the altemative, engaging in a persistent widespread practice of illegally delegating all oftheir Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and gives preference of those faiths over Plaintiffs' religion. 231. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and give preference of those faiths over Plaintiffs' religion.
47

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 48 of 78 PageID #: 54
232. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship and thus advances and give preference of those faiths over Plaintiffs' religion.
233. Consequently, Defendant STATE OF HAWAli's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
234. Consequently, Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
235. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
48

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 49 of 78 PageID #: 55
236. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT X: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS 237. Upon inf01mation and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and gives preference of those faiths over Plaintiffs' religion. 238. Upon infonnation and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs' religion. 239. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs' religion. 240. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual leader on a regular basis, while allowing
49

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 50 of 78 PageID #: 56
other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
241. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendments to the U.S. Constitution.
242. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
243. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
VIOLATIONS OF ARTICLE I, SECTION 4 OF THE HAWAH STATE CONSTITUTION RELATING TO FREE EXERCISE OF RELIGION
244. Plaintiffs re-allege paragraphs 1 through 138, and incorporate them herein by reference.
245. Article I, Section 4 of the Hawaii State Constitution provides that "[n]o law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof. .. "
50

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 51 of 78 PageID #: 57
246. The Free Exercise Clause ofthe Hawaii State Constitution applies to the Defendants STATE OF HAWAll because they are state actors.
247. The Free Exercise Clause of the Hawaii State Constitution applies to Defendant CCA because it is the contractually authorized legal custodian ofthose individuals incarcerated under the laws of the State of Hawaii, and charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF are state actors.
COUNT XI: AS TO DAILY WORSHIP VIOLATIONS 248. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when inmates of a certain religion can congregate for group worship. 249. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship. 250. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that refuses Native Hawaiian Practitioners from meeting with each other on a daily basis for group worship.
51

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 52 of 78 PageID #: 58
251. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE to meet with other Native Hawaiian practitioners on a daily basis for group worship in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
252. Consequently, Defendant CCA's refusal ofDAVIS, HUGHES, KAAHU, KANE and KEAWE from meeting with other Native Hawaiian practitioners on a daily basis for group worship in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
253. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
254. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize when administrative segregation inmates of a certain religion can meet with a spiritual advisor on a regular basis.
255. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from regularly meeting with a spiritual advisor on a regular basis.
256. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in CCA's policy of refusing HOLBRON from meeting with a spiritual advisor on a
52

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 53 of 78 PageID #: 59
regular basis for worship activities in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
257. Consequently, Defendant CCA's policy of refusing HOLBRON from meeting with a spiritual advisor on a regular basis for worship activities in violation of Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
258. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
259. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XH: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 260. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates of a certain religion can observe important religious days with certain protocol. 261. Upon infmmation and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows only some Native Hawaiian Practitioners to observe the opening and closing days ofMakahiki Season with certain religious protocol.
53

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 54 of 78 PageID #: 60
262. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice refusing all Native Hawaiian Practitioners from observing the opening and closing days ofMakahiki Season with certain religious protocol.
263. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE to observe the opening and closing days of the Makahiki Season violates Atticle I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
264. Consequently, Defendant CCA's refusal ofDAVIS, HUGHES, and KAAHU, KANE and KEAWE from observing the opening and closing days of the Makahiki Season violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
265. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
266. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to observe imp01tant religious days with specific protocol.
54

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 55 of 78 PageID #: 61
267. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to observe the opening and closing ofMakahiki with specific protocol.
268. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to observe important religious days with specific protocol violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
269. Consequently, Defendant CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to observe the opening and closing ofMakahiki with specific protocol violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
270. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
271. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XIII: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 272. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all oftheir Constitutional and statutory responsibilities owed to Plaintiffs which
55

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 56 of 78 PageID #: 62
permits its contractor, Defendant CCA to authorize whether inmates can access sacred items critical to the worship of their faith.
273. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners access to
the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kat (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'oZena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kant (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument),pu ntu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses,
natural fibers). 274. Upon information and belief, Defendant CCA authorized Bruno Stole, an
employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from
access to the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'oZena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted),pu kant (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala,
grasses, natural fibers).
56

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 57 of 78 PageID #: 63
275. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's access the above listed sacred items violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
276. Consequently, Defendant CCA's refusal ofDAVIS, HUGHES, KAAHU, KANE and KEAWE to access the above listed sacred items Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
277. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief
278. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA to authorize whether administrative segregation inmates of a certain religion can meet with a spiritual advisor to utilize certain sacred objects critical to the worship of their faith.
279. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice refusing Native Hawaiian Practitioners who are in administrative segregation from meeting with a spiritual advisor to assist in the use of malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell
57

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 58 of 78 PageID #: 64
bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
280. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
281. Consequently, Defendant CCA's policy of refusing HOLBRON from meeting with a spiritual advisor to access those sacred items Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
282. As a consequence of the above violation, HOLBRON has suffered, and continue to suffer irreparable iftiury that can only be readdressed by declaratory and injunctive relief.
283. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XIV: AS TO ACCESS TO SACRED SPACE VIOLATIONS 284. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which
58

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 59 of 78 PageID #: 65
permits its contractor, Defendant CCA to authorize a sacred space for inmates to engage in religious worship activities.
285. Upon infonnation and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
286. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from establishing a sacred outdoor space with at least two spiritually significant stones for group worship.
287. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish a sacred outdoor space with at least two spiritually significant stones for group worship Article I, Section 4 of the Hawaii State Constitution beca1,1se said policies and procedures are not reasonably related to legitimate penological interests.
288. Consequently, Defendant CCA's refusal ofDAVIS, HUGHES, KAAHU, KANE and KEAWE' s request to establish a sacred outdoor space violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
59

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 60 of 78 PageID #: 66
289. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
290. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XV: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS 291. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize inmates to meet with a spiritual advisor on a regular basis. 292. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from meeting with a spiritual advisor on a regular basis. 293. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that prevents Native Hawaiian Practitioners from to meet with a spiritual advisor on a regular basis. 294. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual advisor on a regular basis violates Article
60

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 61 of 78 PageID #: 67
I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
295. Consequently, Defendant CCA's refusal of DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual advisor on a regular basis violates Article I, Section 4 of the Hawaii State Constitution because said policies and procedures are not reasonably related to legitimate penological interests.
296. As a consequence of the above violation, DAVIS, HUGHES, KAAHU HOLBRON, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
297. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial. VIOLATION OF ARTICLE I, SECTION 5 OF THE HAWAH STATE CONSTITUTION
RELATING TO EQUAL PROTECTION 298. Plaintiffs re-allege paragraphs 1 through 138, and incorporate them herein by reference. 299. Article I, Section 5 ofthe Hawaii State Constitution provides that "[n]o person shall ... be denied the equal protection ofthe laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.'' 300. The Equal Protection Clause of the Hawaii State Constitution applies to the Defendants STATE OF HAWAU because they are state actors. 301. The Equal Protection Clause ofthe Hawaii State Constitution applies to Defendant CCA because it is the contractually authorized legal custodian of those individuals
61

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 62 of 78 PageID #: 68
incarcerated under the Jaws of the State of Hawaii, and charged with a task and function that is traditionally and fundamentally performed by the govemment and/or are sufficiently intertwined with the govemment to the extent that Defendants CCA and its employees at SCF and RRCF are state actors.
COUNT XVI: AS TO DAILY WORSHIP VIOLATIONS 302. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the altemative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs' religion. 303. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet on a daily basis for group worship and thus advances and gives preference of those faiths over Plaintiffs' religion. 304. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only ce1iain religions to meet on a daily basis for group worship and thus advances and give preference of those faiths over Plaintiffs' religion. 305. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and
62

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 63 of 78 PageID #: 69
KEAWE's request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
306. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to congregate on a daily basis at either the Saguaro or Red Rock Correctional Centers for Native Hawaiian religious services, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet on a daily basis for group worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
307. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
308. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XVH: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 309. Upon information and belief, the Defendants STATE OF HAWAll are enforcing an official policy, or in the altemative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain
63

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 64 of 78 PageID #: 70
religions to observe their important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs' religion.
310. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to observe their impmtant holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs' religion.
311. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only cettain religions to observe their important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs' religion.
312. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
313. Consequently, Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to actively participate in the opening and closing days of the Makahiki season with specific religious protocol, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to observe their important holidays
64

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 65 of 78 PageID #: 71
has denied Plaintiffs the equal protection ofthe laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
314. As a consequence of the above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer in·eparable injury that can only be readdressed by declaratory and injunctive relief.
315. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the altemative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in observing important holidays with specific religious protocol, and thus advances and gives preference of those faiths over Plaintiffs' religion.
316. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to assist in the observance of important holidays with specific religious protocol, and thus advances and give preference of those faiths over Plaintiffs' religion.
317. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to assist in
65

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 66 of 78 PageID #: 72
observing their important holidays has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
318. Consequently, Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to observe the opening and closing days of the Makahiki season with specific religious protocol, while allowing other administratively segregated state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to meet with their respective spiritual leader to assist in observing their impotiant holidays has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
319. As a consequence ofthe above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
320. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XVIII: AS TO ACCESS TO SACRED ITEMS VIOLATIONS 321. Upon information and belief, the Defendants STATE OF HAWAU are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all oftheir Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs' religion. 322. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a
66

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 67 of 78 PageID #: 73
corporate policy and/or customary practice that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs' religion.
323. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions access to sacred items to practice their faith, and thus advances and gives preference of those faiths over Plaintiffs' religion.
324. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request access malo, kihei and pau (native garments), block of lama wood, kapa, pa'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made ofwoven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
325. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to access malo, kihei andpau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers,
67

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 68 of 78 PageID #: 74
cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument),pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell hom), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to access their respective sacred items has denied Plaintiffs the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
326. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
327. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and gives preference of those faiths over Plaintiffs' religion.
328. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee of CCA and Warden for SCF, to serve as its chief policymaker at SCF to enforce a corporate policy and/or customary practice that allows administratively segregated inmates of only certain religions to meet with a spiritual advisor to access important sacred items for worship, and thus advances and give preference of those faiths over Plaintiffs' religion.
68

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 69 of 78 PageID #: 75
329. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to access the following items ofworship malo, kihei andpau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted),pu kani (conch shell),pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument), pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute),pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
330. Consequently, Defendant CCA's policy of refusing HOLBRON's request to meet with a spiritual leader to access the following items of worship malo, kihei and pau (native garments), block of lama wood, kapa, pa 'a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), 'olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kant (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), 'ohe ka eke 'eke (percussion instrument),pu niu (small knee drum), 'ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers) while allowing other administratively segregated state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to meet with their respective spiritual leader to access their sacred items has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
69

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 70 of 78 PageID #: 76
331. As a consequence of the above violation, HOLBRON have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
332. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XIX: AS TO ACCESS TO SACRED SPACE VIOLATIONS
333. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and gives preference of those faiths over Plaintiffs' religion.
334. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship, and thus advances and give preference of those faiths over Plaintiffs' religion.
335. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to consecrate a special area for their worship and thus advances and give preference of those faiths over Plaintiffs' religion.
70

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 71 of 78 PageID #: 77
336. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection ofthe laws as guaranteed by Article I, Section 5 ofthe Hawaii State Constitution.
337. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, KANE and KEAWE's request to establish an area out of doors with two spiritually significant stones for their worship activities, while allowing other state prisoners at Saguaro and Red Rock Conectional Centers of other faiths to consecrate a special area for their worship has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
338. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, KANE and KEAWE have suffered, and continue to suffer ineparable injury that can only be readdressed by declaratory and injunctive relief.
339. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
COUNT XX: AS TO ACCESS TO SPIRITUAL ADVISOR VIOLATIONS 340. Upon information and belief, the Defendants STATE OF HAWAil are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which
71

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 72 of 78 PageID #: 78
permits its contractor, Defendant CCA to exercise a policy that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and gives preference of those faiths over Plaintiffs' religion.
341. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs' religion.
342. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee ofCCA and Warden for RRCF, to serve as its chiefpolicymaker at RRCF to enforce a corporate policy and/or customary practice that allows inmates of only certain religions to meet with a spiritual leader on a regular basis, and thus advances and give preference of those faiths over Plaintiffs' religion.
343. Consequently, Defendant STATE OF HAWAII's actions and or omissions have resulted in Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs the equal protection of the laws as guaranteed by Article I, Section 5 of the Hawaii State Constitution.
344. Consequently, Defendant CCA's policy of refusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE's request to meet with a spiritual leader on a regular basis, while allowing other state prisoners at Saguaro and Red Rock Correctional Centers of other faiths to meet with their respective spiritual leaders on a regular basis has denied Plaintiffs
72

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 73 of 78 PageID #: 79
the equal protection of the laws as guaranteed Article I, Section 5 of the Hawaii State Constitution.
345. As a consequence ofthe above violation, DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
346. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
VIOLATION OF ARTICLE XII, SECTION 7 OF THE HAWAII STATE CONSTITUTION and H.R.S. SECTION 1-1 RELATING TO NATIVE HAWAIIAN
TRADITIONAL AND CUSTOMARY RIGHTS 347. Plaintiffs re-allege paragraphs 1 through 138, and incorporate them herein by reference. 348. Article XII, Section 7 of the Hawaii State Constitution provides that the State "reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights." 349. Hawaii Revised Statutes Section 1-1 provides in pertinent part: "[t]he common law of England, as ascertained by English and American decisions, is declared to be the common law ofthe State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws ofthe State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage ... "
73

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 74 of 78 PageID #: 80
350. Article XII, Section 7 of the Hawaii State Constitution and Hawaii Revised Statutes Section 1-1 applies to the Defendants STATE OF HAWAil as state actors.
351. Article XII, Section 7 of the Hawaii State Constitution and Hawaii Revised Statutes Section 1-1 applies to Defendant CCA because it is the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, and charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF and RRCF are state actors.
352. But for Plaintiffs' involuntary seizure from the State of Hawaii to the State of Arizona, Plaintiffs would have continued to practice critical tenets of their Native Hawaiian faith in their respective ahupua' a as their ancestors had done before them.
COUNT XXI: AS TO OBSERVANCE OF MAKAHIKI VIOLATIONS 353. Upon information and belief, the Defendants STATE OF HAWAII are enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs which permits its contractor, Defendant CCA to authorize whether inmates who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 are allowed to engage in traditional and customary practices which originate in, and are interpreted from within the traditional Native Hawaiian culture and community. 354. Upon information and belief, Defendant CCA authorized Todd Thomas, an employee ofCCA and Warden for SCF, to serve as its chiefpolicymaker at SCF to enforce a corporate policy and/or customary practice to restrict inmates who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 from engaging in traditional and
74

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 75 of 78 PageID #: 81
customary practices which originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
355. Upon information and belief, Defendant CCA authorized Bruno Stole, an employee of CCA and Warden for RRCF, to serve as its chief policymaker at RRCF to enforce a corporate policy and/or customary practice to restrict inmates who are descendents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 from engaging in traditional and customary practices which originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
356. Consequently, Defendant STATE OF HAWAil's actions and or omissions have resulted in Defendant CCA's policy ofrefusing DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE to meaningfully participate in the recognition of the opening and closing days of the Makahiki Season with specific protocol and the use of sacred items violates Article XII, Section 7 ofthe Hawaii State Constitution and Hawaii Revised Statutes Section 1~1.
357. Consequently, Defendant CCA's refusal of DAVIS, HUGHES, KAAHU, HOLBRON, KANE and KEAWE to meaningfully participate in the recognition of the opening and closing days of the Makahild Season with specific protocol and the use of sacred items violates Article XII, Section 7 ofthe Hawaii State Constitution and Hawaii Revised Statutes Section 1-1.
358. As a consequence of the above violations, Plaintiffs have suffered, and continue to suffer irreparable injury that can only be readdressed by declaratory and injunctive relief.
359. As a direct, proximate and foreseeable result thereof, Plaintiffs have also suffered damages caused by Defendants' violations as described above in amounts to be established at trial.
75

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 76 of 78 PageID #: 82
PRAVER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
1. Declare that Defendants have violated Plaintiffs' rights under the Free Exercise Clause of the First Amendment ofthe United States Constitution;
2. Declare that Defendants have violated Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment ofthe United States Constitution;
3. Declare that Defendants have violated Plaintiffs' rights under the Free Exercise Clause of the Hawaii State Constitution;
4. Declare that Defendants have violated Plaintiffs' rights under the Equal Protection Clause of the Hawaii State Constitution;
5. Declare that Defendants have violated Plaintiffs' rights under Article XII Section 7 of Hawaii State Constitution and H.R.S. 1-1;
6. Order Defendants to allow Plaintiffs to exercise their Native Hawaiian religion by gathering once daily in observance of the Native Hawaiian Religion as requested by Plaintiffs;
7. Order Defendants to allow Plaintiffs to exercise their Native Hawaiian religion by participating in certain and specific ceremonies critical to their observation ofthe annual Makahiki Season as requested by Plaintiffs;
8. Order Defendants to allow Plaintiffs to exercise their Native Hawaiian religion by using and maintaining traditional and customary objects and items that are essential to expressing their religious belief and faith as requested by Plaintiffs;
9. Order Defendants to allow Plaintiffs to exercise their Native Hawaiian religion by constructing and accessing an outdoor sacred space to expressing their religious belief and faith as requested by plaintiffs;
76

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 77 of 78 PageID #: 83
10. Order Defendants to allow Plaintiffs to exercise their Native Hawaiian religion by meeting a spiritual leader on a daily basis to expressing their religious belief and faith as requested by plaintiffs;
11. Order Defendants to develop a comprehensive plan and promulgate official policy guidelines on how Native Hawaiians who have been convicted and sentenced under the laws of the State ofHawai'i can practice their religion on a regular and equal basis with all other religions represented at correctional facilities;
12. Appoint a Special Master to monitor Defendants' compliance with the relief granted by this Court;
13. Grant Plaintiffs compensatory damages against Defendants jointly and severally, in an amount to be proven at trial.
14. Award Plaintiffs their costs, including reasonable attorneys' fees and costs, as authorized by statute.
15. Grant such other and further appropriate r~lief as this Court deems just and proper. DATED: Honolulu, Hawai'i, February¥, 2011.
Attorneys for Plaintiffs
77

Case 1:11-cv-00144-LEK-BMK Document 1-2 Filed 03/08/11 Page 78 of 78 PageID #: 84

STATE OF HAWAI'I
CIRCUIT COURT OF THE FIRST CIRCUIT

SUMMONS
TO ANSWER CIVIL COMPLAINT

CASE NUMBER
Civil No. _ _ _ __

PLAINTIFF

vs.

RICHARD KAPELA DAVIS, MICHAEL HUGHES,
DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES
KANE Ill, and ELLINGTON KEAWE

DEFENDANT
NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawaii; JODIE MAESAKA·HIRATA, in her official capacity as Interim Director of the Hawaii Department of Public Safety; CORRECTIONS CORPORATION OF AMERICA

PLAINTIFF'S ADDRESS (NAME, ADDRESS, TEL NO.)

Andrew B. Sprenger 7681

Sharla Manley

8868

1164 Bishop Street, Suite 1205

Honolulu, Hawaii 96813

Tel. No. (808) 521-2302

TO THE DEFENDANT(S):
You are hereby summoned and required to serve upon plaintiff's attorney, whose address is stated above, and answer to the complaint which is attached. This action must be taken within twenty days after service of this summons upon you, exclusive of the day of service.
If you fail to make your answer within the twenty day time limit, judgment by default will be taken against you for the relief demanded in the complaint.
This summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public, unless a judge of the above-entitled court pet·mits, in wl'iting on this summons, personal delivery during those hours.
A failure to obey this summons may result in an entry of default and default judgment against the disobeying person or party.

DATE ISSUED
FEB - 7 2011

CLERI<

I do hereby certify that this is a full, true, and correct copy of the original on file in this office.

CIRCUIT COURT CLERI<

1C-P-306

SUMMONS TO ANSWER CIVIL COMPLAINT

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS; et al., )

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the Governor of )

the State of Hawaii; et al.,

)

)

Defendants.

)

______________________________ )

CV. NO. 11-00144 LEK-BMK
ORDER DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE

ORDER DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE

Before the Court is Defendants the Governor of Hawaii Neil

Abercrombie (“Governor”), Interim Director of the Hawaii Department of Public

Safety Jodie Maesaka-Hirata (“DPS Director”), and Corrections Corporation of

America’s (“CCA”) (collectively “Defendants”) Motion to Transfer Venue.

(Doc. # 7.) The Court heard the motion on May 10, 2011. After careful

consideration of the motion, the supporting and opposing memoranda, and the

arguments of counsel, the Court DENIES Defendants’ Motion to Transfer Venue.

BACKGROUND

A. Factual and Procedural Background

Plaintiffs Richard Kapela Davis, Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane, III, and Ellington Keawe (collectively “Plaintiffs”) are Hawaii prisoners who were convicted and sentenced under Hawaii law. (Compl. ¶¶ 17, 25-30; Opp’n at 3.) Pursuant to a contract entered into between the Hawaii Department of Public Safety (“DPS”) and the CCA (“DPSCCA contract”), Plaintiffs were transferred to one of two correctional facilities located in Arizona, which are owned and operated by the CCA (“CCA correctional facilities”). (Compl. ¶¶ 11, 16-17, 25-30; Answer ¶¶ 9, 17; Mem. in Supp. of Mot. at 1; Opp’n at 3-4.) The CCA correctional facilities are Saguaro Correctional Facility (“Saguaro”) and Red Rock Correctional Center (“Red Rock”). (Compl. ¶¶ 25-30.) The DPS-CCA contract governs the confinement, custody, and care of Hawaii prisoners at Saguaro and Red Rock. (See Opp’n Ex. 1.)
On February 7, 2011, Plaintiffs filed a complaint in the Circuit Court of the First Circuit, State of Hawaii (“state court”). (Doc. # 1 Ex. A.) Plaintiffs, who maintain they are indigent, are represented by attorneys from the Native Hawaiian Legal Corporation (“NHLC”) on a pro bono basis. (Sprenger Decl. ¶ 5.) The NHLC is located in Hawaii, and is the only private, non-profit law firm in the nation that specializes in native Hawaiian rights. (Id. ¶¶ 2-3.) None of its attorneys are licensed to practice law in the District of Arizona. (Id. ¶ 2.)
2

The complaint names the Governor and DPS Director in their official capacities as Defendants. (Compl. ¶¶ 12-13.) The complaint also names the CCA as a Defendant. (Id. ¶ 16.) The Governor and DPS Director are Hawaii residents. (Opp’n at 3-4.) The CCA is a Maryland corporation with its principal place of business in Tennessee. (Answer ¶ 17; Mem. in Supp. of Mot. at 1.)
The complaint alleges that Plaintiffs are native Hawaiian and that they practice the native Hawaiian religion. (Compl. ¶¶ 9, 31.) The complaint alleges that Defendants are enforcing a policy, or engaging in a practice, that prevents Plaintiffs from practicing the native Hawaiian religion, and that gives preference to inmates who practice other religions. (See, e.g., id. ¶¶ 144-48, 156-60, 162-65, 168-72, 174-77, 180-84, 187-91, 199-203, 206-10, 212-15, 218-22, 224-27, 23034, 237-41.) For example, the complaint alleges that Plaintiffs are prevented from: meeting with other native Hawaiian practitioners on a daily basis for group worship (see, e.g., id. ¶¶ 144-48); observing the opening and closing of the Makahiki season with certain religious protocol (see, e.g., id. ¶¶ 156-60); meeting with a spiritual advisor to observe the opening and closing of the Makahiki season with certain religious protocol (see, e.g., id. ¶¶ 162-65); accessing certain sacred items that are critical to the practice of their religion (see, e.g., id. ¶¶ 168-72); meeting with a spiritual advisor to assist in the use of certain sacred items critical
3

to the practice of their religion (see, e.g., id. ¶¶ 174-77); establishing a sacred outdoor space with at least two spiritually significant stones for group worship (see, e.g., id. ¶¶ 180-84); and meeting with a spiritual advisor on a regular basis (see, e.g., id. ¶¶ 187-91). The complaint alleges that inmates who practice other religions are permitted to do the foregoing. (See, e.g., id. ¶¶ 199-203, 206-10, 21215, 218-22, 224-27, 230-34, 237-41.) Plaintiffs, thus, allege that Defendants violated their rights to the free exercise of religion and equal protection of the law under the First and Fourteenth Amendments and article I, sections 4 and 5 of the Hawaii Constitution. (Id. ¶¶ 139-346.)
Plaintiffs also allege that Defendants violated their rights guaranteed by article XII, section 7 of the Hawaii Constitution. (Id. ¶¶ 347-59.) This section provides, “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.” Haw. Const. art. XII, § 7. Plaintiffs allege that Defendants violated this section by preventing them from participating in the opening and closing of the Makahiki season with certain religious protocol, and using certain sacred items. (Compl. ¶¶ 356-57.)
4

Defendants removed the case from state court to this Court on March 8, 2011. (Doc. # 1.) B. Defendants’ Motion to Transfer Venue
On March 23, 2011, Defendants moved to transfer this case to the District of Arizona pursuant to 28 U.S.C. §§ 1391(b) and 1406(a), and 28 U.S.C. § 1404(a). (Doc. # 7.) Defendants argue that this case should be treated in the same manner that two prior cases, to which Plaintiff Richard Kapela Davis (“Davis”) was a party, were treated. (Mot. at 2; Reply at 5-6.) In the first case, Bush v. Hawaii, Civ. No. 04-00096 DAE-KSC, Davis and other Hawaii prisoners filed a lawsuit in this Court, alleging that the defendants violated their rights under the federal Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), by preventing them from practicing the native Hawaiian religion during a Makahiki festival at a CCA correctional facility located in Oklahoma. 2011 WL 563564, at *1 (D. Haw. Jan. 20, 2011). A settlement was reached and final judgment was entered. Id. However, one of the plaintiffs later sought to reopen the case so that he could supplement the amended complaint with allegations relating to his inability to participate in a Makahiki festival at a CCA correctional facility located in Arizona. Id. at *2-3. The magistrate judge recommended denying the request because this Court lacked jurisdiction to
5

entertain the motion or grant the relief sought. Id. The magistrate judge further recommended that even if the Court had jurisdiction, supplementation was inappropriate. Id. at *3. The magistrate judge concluded that, among other things, venue in Hawaii was improper under § 1391(b) because the events and omissions alleged occurred substantially, if not entirely, in Arizona. Id. at *5. The district judge adopted the magistrate judge’s recommendations. See Bush v. Hawaii, Civ. No. 04-00096 DAE-KSC, 2011 WL 563093 (D. Haw. Feb. 8, 2011).
In the second case, Davis v. Hawaii, Civ. No. 08-00434 JMS-BMK, Davis, proceeding pro se, filed a lawsuit in this Court against individuals and agencies located in Hawaii and Arizona. 2009 WL 1227841, at *1 (D. Haw. May 4, 2009). The defendants included the governors of Hawaii and Arizona, the CCA, the DPS and its Director, the Arizona Department of Corrections (“ADC”) and its Director, and DPS and Saguaro employees. Id. In his complaint, Davis alleged that the defendants violated his rights under the federal Constitution and the RLUIPA. Id. Specifically, he alleged that CCA and Saguaro employees prevented him from practicing his native Hawaiian religion when they failed to hold a Makahiki closing ceremony feast, failed to distribute food for that ceremony, and later distributed the food to other inmates who were not associated with the Makahiki festival or the native Hawaiian religion. Id. at *2. The
6

defendants moved to transfer the case to the District of Arizona, and this Court granted their motion. Id. at *1. First, the Court concluded that venue in Hawaii was improper pursuant to § 1391(b) because the events and omissions complained of occurred substantially in Arizona. Id. at *4. The Court concluded that the interest of justice, however, favored transferring the case pursuant to § 1406(a), rather than a dismissal. Id. Second, the Court concluded that even if venue in Hawaii were proper, the case should be transferred to the District of Arizona pursuant to § 1404(a) for the convenience of the parties and witnesses, and in the interest of justice. Id. at *5.
Here, Defendants move to transfer this case to the District of Arizona pursuant to §§ 1391(b) and 1406(a), and § 1404(a). Specifically, Defendants argue that because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in Arizona, venue in Hawaii is improper under § 1391(b). (Mem. in Supp. of Mot. at 2-7.) Defendants thus argue that the case should be transferred to the District of Arizona pursuant to § 1406(a) as it could have been brought there. (See id. at 6-7.) Defendants argue that even if venue in Hawaii is proper, the Court should nevertheless transfer the case as a matter of convenience and in the interest of justice pursuant to § 1404(a). (Id. at 7-10.)
7

Plaintiffs filed their opposition to Defendants’ motion on
April 19, 2011, and on April 26, 2011, Defendants replied. (Docs. ## 21, 22.)
DISCUSSION
A. Improper Venue
Defendants argue that venue in Hawaii is improper under § 1391(b).
(Mem. in Supp. of Mot. at 2-7.) This section provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). Defendants appear to argue that because they do not reside in
the same state, venue must be determined by reference to § 1391(b)(2), where a
substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred,
or § 1391(b)(3), if the former subsection does not apply. (See Mem. in Supp. of
Mot. at 2-4.) Defendants argue that as to § 1391(b)(2), a substantial part of the
events or omissions giving rise to Plaintiffs’ claims occurred at the CCA
correctional facilities, which are located in Arizona. (Id. at 6-7.) Defendants argue
that, as such, venue in Hawaii is improper, and the case should be transferred to the
8

District of Arizona pursuant to § 1406(a). (Id.) This section provides, “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).
Plaintiffs argue in opposition that § 1391(b) does not apply because this is a removed case and therefore, venue is governed by 28 U.S.C. § 1441(a). (Opp’n at 14-16.) The Court agrees with Plaintiffs. “The general removal statute, Section 1441 of Title 28, provides that the venue of a removed case is ‘the district and division embracing the place where such action is pending.’” 14C Charles Alan Wright et al., Federal Practice and Procedure § 3732 (quoting 28 U.S.C. § 1441(a)). “Accordingly, the general venue statutes, Section 1391 through Section 1393, do not apply to cases that have been initiated in a state court and removed to a federal court.” Id.
These principles were articulated by the Supreme Court in Polizzi v. Cowles Magazines, Inc., 345 U.S. 663 (1953). In Polizzi, a Florida resident filed a libel action against the defendant publisher, an Iowa corporation, in the Circuit Court of Dade County, Florida. Id. at 664. The defendant removed the case to the United States District Court for the Southern District of Florida. Id. The district
9

court dismissed the action on the ground that the defendant was not, at the time of
service of the summons, “doing business” in the Southern District of Florida, and
therefore, the venue requirements of 28 U.S.C. § 1391(c) were not met. Polizzi, Id.
at 664-65. The Fifth Circuit affirmed, and the Supreme Court granted certiorari.
Id. at 665 (citations omitted). The Supreme Court noted that the question before it
was whether the district court correctly dismissed the action for lack of
jurisdiction. Id. The Supreme Court noted:
Both courts below held that the District Court lacked jurisdiction, but they reached that conclusion by deciding that Respondent was not ‘doing business’ in Florida within the meaning of [28 U.S.C. § 1391(c)]. Section 1391 is a general venue statute. In a case where it applies, if its requirements are not satisfied, the District Court is not deprived of jurisdiction, although dismissal of the case might be justified if a timely objection to the venue were interposed. But even on the question of venue, § 1391 has no application to this case because this is a removed action. The venue of removed actions is governed by [28 U.S.C. § 1441(a)], and under that section venue was properly laid in the Southern District of Florida. . . . Section 1391(a) limits the district in which an action may be ‘brought.’ Section 1391(c) similarly limits the district in which a corporation may be ‘sued.’ This action was not ‘brought’ in the District Court, nor was Respondent ‘sued’ there; the action was brought in a state court and removed to the District Court. Section 1441(a) expressly provides that the proper venue of a removed action is ‘the district court of the United States for the district and division embracing the place where such action is pending.’ The Southern District of Florida is the district embracing Dade County, the place where this action was pending.
10

Id. at 665-66 (emphases added, footnotes and citations omitted). Because the district court based its holding on a statute that had no application to the case, and the Fifth Circuit affirmed on the same reasoning, the Supreme Court reversed and remanded the case to the district court. Id. at 666-67.
Here, Defendants argue that venue in Hawaii is improper under § 1391(b). (Mem. in Supp. of Mot. at 2-7.) However, § 1391(b), like § 1391(a), limits the district in which an action may be “brought.” See 28 U.S.C. § 1391(b). This action was not “brought” in this district court. Rather, the action was brought in Hawaii state court and removed to the district court for the District of Hawaii. (See Doc. # 1.) Because the District of Hawaii is the district embracing the place where the action was pending, venue is proper pursuant to § 1441(a) and § 1391 does not apply. See, e.g., Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004) (noting that “[§] 1441(a), and not the ordinary federal venue statute, 28 U.S.C. § 1391, governs venue in removed cases”); Kubin-Nicholson Corp. v. Gillon, 525 F. Supp. 2d 1071, 1075 (E.D. Wis. 2007) (noting that “§ 1441(a) governs the venue of a removed action” and § 1391 does not apply) (citation omitted); Keston v. FirstCollect, Inc., 523 F. Supp. 2d 1348, 1355 (S.D. Fla. 2007) (noting that the “proper venue statute in a removal action is 28 U.S.C. § 1441(a)”) (citation omitted); Kotan v. Pizza
11

Outlet, Inc., 400 F. Supp. 2d 44, 46 (D.D.C. 2005) (noting that “[w]hile questions of venue are generally resolved in accordance with § 1391, when a case is removed from state court to federal court, the removal statute, 28 U.S.C. § 1441, dictates venue”) (citation omitted); see also Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 534 (6th Cir. 2002) (noting that “[v]enue in removed cases is governed solely by § 1441(a)”) (citation omitted). This case is distinguishable from Bush, 2011 WL 563564, at *1, and Davis, 2009 WL 1227841, at *1, because those cases were brought in federal district court and therefore § 1391 applied.
Based on the foregoing, the Court denies Defendants’ request to transfer the case to the District of Arizona pursuant to § 1406(a). Section 1406(a) applies only when a case is filed in the wrong division or district. See 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case lying 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.”) (emphasis added). B. Convenience
Although venue in Hawaii is proper, the action may still be transferred to the District of Arizona pursuant to § 1404(a). See 14C Wright et al., supra, § 3732 (“Even when venue is proper in the federal court, a removed action may be
12

transferred to another federal district court in accordance with various federal transfer provisions, most notably Section 1404(a) . . . .”). This section provides, “For the convenience of 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). Plaintiffs do not dispute that this action could have been brought in the District of Arizona. Rather, Plaintiffs argue that transferring the action to the District of Arizona will not serve the convenience of the parties and witnesses nor promote the interest of justice. (See Opp’n at 17-37.)
“Under § 1404(a), the district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)) (quotation marks omitted). In determining whether to transfer a case pursuant to § 1404(a), the court must weigh multiple factors, including, the following: (1) the plaintiff’s choice of forum; (2) the location where the relevant agreements were negotiated and executed; (3) the respective parties’ contacts with the forum; (4) the contacts relating to the plaintiff’s cause of action in the chosen forum; (5) the differences in the costs of litigation in the two forums; (6) the availability of compulsory process to compel attendance of unwilling non-party witnesses; (7) the
13

ease of access to sources of proof; and (8) the state that is most familiar with the governing law. Id. at 498-99. “Ultimately, the moving party has the burden of showing that an alternative forum is the more appropriate forum for the action.” Tamashiro v. Harvey, 487 F. Supp. 2d 1162, 1168 (D. Haw. 2006) (citation omitted). The Court addresses the foregoing factors in turn.
As to the first factor, the plaintiff’s choice of forum, Plaintiffs filed this lawsuit in Hawaii. (Doc. # 1 Ex. A.) “[T]here is normally a strong presumption in favor of honoring the plaintiff’s choice of forum.” Tamashiro, 487 F. Supp. 2d at 1169 (quoting Hi-Pac, Ltd. v. Avoset Corp., 980 F. Supp. 1134, 1140 (D. Haw. 1997)) (alteration in original, quotation marks omitted). “The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice . . . .” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (citation omitted). The Court recognizes that courts have accorded less weight to the plaintiff’s choice of forum when it is not the plaintiff’s state of residence. See, e.g., Healey v. Spencer, No. CV 09-7596 AHM(DTBX), 2010 WL 669220, at *1 (C.D. Cal. Feb. 22, 2010); Owner-Operator Indep. Drivers Ass’n, Inc. v. C.R. England, Inc., No. CV F 02-5664 AWI SMS, 2002 WL 32831640, at *6-7 (E.D. Cal. Aug. 19, 2002). The Court, however, finds that this case is distinguishable because while Plaintiffs do not reside in Hawaii, they are
14

Hawaii prisoners who were convicted and sentenced under Hawaii law. Thus,
although the Court does not accord great weight to Plaintiffs’ choice of forum, the
Court concludes that this factor still weighs in Plaintiffs’ favor.
As to the second factor, the location where the relevant agreements
were negotiated and executed, Plaintiffs allege, and Defendants do not dispute, that
the DPS-CCA contract, which governs the confinement, custody, and care of
Hawaii prisoners at Saguaro and Red Rock, was negotiated and executed in
Hawaii. (See Opp’n at 4, 31-32; Opp’n Ex. 1.) Defendants, however, argue that
this factor is irrelevant because Plaintiffs do not assert a breach of contract claim.
(Reply at 6-7.) Nevertheless, the Court finds that the DPS-CCA contract serves as
a basis for Plaintiffs’ claims. For example, the complaint alleges:
17. Since at least 2002, [Defendants] have been parties to various contracts executed in the State of Hawaii in which [the CCA] accepted responsibility of supervising and controlling those individuals who have been convicted and sentenced under the criminal statutes of the State of Hawaii and have been involuntarily transferred by [the Governor and DPS Director] to CCA prison facilities in exchange for substantial payments made by the State of Hawaii.
. . . .
19. . . . Plaintiffs’ claims arise out of said contracts between [Defendants] which also allows this Court to properly exercise its long arm jurisdiction.
15

20. As the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, [the CCA] is charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that [the CCA] and its employees at [Saguaro] and [Red Rock] are state actors. Consequently, [the CCA] and its employees of [Saguaro] and [Red Rock] must guarantee to those individuals under its supervision and control the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system.
(Compl. ¶¶ 17, 19-20.) Based on the foregoing, the complaint asserts that the
Governor and DPS Director “are enforcing an official policy, or in the alternative,
engaging in a persistent widespread practice of illegally delegating all of their
Constitutional and statutory responsibilities owed to Plaintiffs . . . .” (See, e.g., id.
¶¶ 144, 156, 162, 168, 174, 180, 187.) The complaint thus requests that
Defendants be ordered “to develop a comprehensive plan and promulgate official
policy guidelines on how Native Hawaiians who have been convicted and
sentenced under the laws of the State of Hawai‘i can practice their religion on a
regular and equal basis with all other religions represented at [the CCA]
correctional facilities . . . .” (Prayer for Relief ¶ 11.) After reviewing the
complaint, the Court concludes that where the relevant agreements were negotiated
16

and executed is a factor that may be considered, and such factor weighs in favor of maintaining the case in Hawaii.
Defendants argue that the third factor, the parties’ contacts with the forum, weighs in favor of transferring the case to the District of Arizona because Plaintiffs are incarcerated in Arizona, and the CCA correctional facilities are located in Arizona. (Mem. in Supp. of Mot. at 8-9; Reply at 8.) As stated above, although the Court recognizes that Plaintiffs are incarcerated in Arizona, the Court also recognizes that Plaintiffs are Hawaii prisoners who were convicted and sentenced under Hawaii law. (Compl. ¶¶ 17, 25-30; Opp’n at 3.) Furthermore, Plaintiffs are represented by attorneys from the NHLC, which is located in Hawaii. (Sprenger Decl. ¶¶ 3-5.) The NHLC is the only private, non-profit law firm in the nation that specializes in native Hawaiian rights, and its attorneys have agreed to represent Plaintiffs pro bono because they are indigent. (Id. ¶¶ 2, 5.) Lastly, none of Defendants are Arizona residents. The Governor and DPS Director are Hawaii residents, and the CCA is a Maryland corporation with its principal place of business in Tennessee. (Answer ¶ 17; Mem. in Supp. of Mot. at 1; Opp’n at 3-4.) Based on the foregoing, the Court concludes that this factor weighs slightly in favor of Plaintiffs.
17

Defendants argue that the fourth factor, contacts relating to the plaintiff’s cause of action in the chosen forum, weighs in favor of transfer because the complaint focuses on Plaintiffs’ inability to practice the native Hawaiian religion while incarcerated in Arizona. (Reply at 5-7.) Plaintiffs argue in opposition that their complaint, instead, focuses on a policy that was promulgated by the Governor and DPS Director, which governs native Hawaiian religious practices of Hawaii prisoners. (See Opp’n at 5-6, 18-19, 31-32.) The Court notes that the complaint alleges that the Governor and DPS Director are enforcing a policy that prevents Plaintiffs from practicing the native Hawaiian religion, and that gives preference to inmates who practice other religions. (See, e.g., Compl. ¶¶ 144, 156, 162, 168, 174, 180, 187, 199, 206, 212, 218, 224, 230, 237.) The Court, however, notes that the complaint also challenges the way in which the policy was implemented at Saguaro and Red Rock. For example, the complaint asserts that Saguaro and Red Rock employees prevented Plaintiffs from: meeting with other native Hawaiian practitioners on a daily basis for group worship (id. ¶¶ 144-48); observing the opening and closing of the Makahiki season with certain religious protocol (id. ¶¶ 156-60); meeting with a spiritual advisor to observe the opening and closing of the Makahiki season with certain religious protocol (id. ¶¶ 162-65); accessing certain sacred items that are critical to the
18

practice of their religion (id. ¶¶ 168-72); meeting with a spiritual advisor to assist in the use of certain sacred items critical to the practice of their religion (id. ¶¶ 17477); establishing a sacred outdoor space with at least two spiritually significant stones for group worship (id. ¶¶ 180-84); and meeting with a spiritual advisor on a regular basis (id. ¶¶ 187-91). Based on the foregoing, the Court concludes that this factor weighs slightly in favor of transferring the case to the District of Arizona.
Turning to the fifth factor, the costs of litigation in the two forums, Defendants argue that because the complaint focuses on Plaintiffs’ inability to practice their religion while incarcerated in Arizona, most of the witnesses are located in Arizona and therefore, this factor weighs in favor of transfer. (Mem. in Supp. of Mot. at 8-9; Reply at 8-11.) Defendants note that the Arizona witnesses include Plaintiffs and CCA employees and inmates. (Mem. in Supp. of Mot. at 8; Reply at 8-11.) Defendants argue that the Governor’s and DPS Director’s Hawaii residency should be discounted because they have agreed to try the case in Arizona. (Reply at 10.) The Court, however, notes that the same could be said of Plaintiffs who, although are incarcerated in Arizona, choose to try the case in Hawaii. As to the CCA employees, the Court “accords less weight to the inconvenience of party witnesses . . . as they can be compelled to testify regardless of the forum in which the lawsuit is ultimately litigated.” Amini Innovation Corp.
19

v. JS Imps. Inc., 497 F. Supp. 2d 1093, 1111 (C.D. Cal. 2007) (emphasis omitted); see also Applied Elastomerics, Inc. v. Z-Man Fishing Prods., Inc., No. C 06-2469 CW, 2006 WL 2868971, at *4 (N.D. Cal. Oct. 6, 2006) (citation omitted). Moreover, there is no reason that at least some of their testimony, as well as the testimony of any CCA inmates, cannot be presented by way of videotaped depositions. It is also likely that the case will be resolved through summary judgment, and there will be no need for a trial. Lastly, the Court finds that transferring the case to the District of Arizona will merely shift the cost of litigation to Plaintiffs. This is of particular concern here because Plaintiffs are indigent and they are represented pro bono by attorneys from a non-profit law firm located in Hawaii. Accordingly, the Court concludes that this factor weighs in favor of maintaining the case in Hawaii. See DIRECTV, Inc. v. EQ Stuff, Inc., 207 F. Supp. 2d 1077, 1083-84 (C.D. Cal. 2002) (deciding against a transfer of venue because, among other things, it would “merely shift the costs of litigation”); K-Tel Int’l, Inc. v. Tristar Prods., Inc., 169 F. Supp. 2d 1033, 1045 (D. Minn. 2001) (noting that “a transfer should not be granted if the effect is simply to shift the inconvenience to the party resisting the transfer”) (citation and quotation marks omitted); RMS Titanic, Inc. v. Geller, No. 3:99CV2401(JCH), 2000 WL 306997, at *6 (D. Conn. Jan. 10, 2000) (noting that “where an increase
20

in convenience to the moving parties would result only in an equivalent decrease in convenience to the plaintiffs, a transfer motion will not be granted”).
As to the sixth factor, the availability of compulsory process to compel attendance of unwilling non-party witnesses, Defendants argue that this factor weighs in favor of transfer because the Arizona witnesses are beyond this Court’s subpoena power. (Mem. in Supp. of Mot. at 9; Reply at 11.) Again, Defendants list the Arizona witnesses to include Plaintiffs and CCA employees and inmates. (Mem. in Supp. of Mot. at 8-9; Reply at 8-11). The Court, however, notes that this factor applies only to non-party witnesses. As mentioned above, party witnesses can be compelled to testify. See Tamashiro, 487 F. Supp. 2d at 1171. Thus, the Arizona non-party witnesses are limited to any CCA inmates. Because Defendants do not specify who such witnesses are, and there is no reason to assume that such witnesses would be unwilling to testify, the Court concludes that this factor bears little consideration. See id.; see also 15 Wright et al., supra, § 3851 (noting that “[t]he party seeking the transfer must specify clearly, typically by affidavit, the key witnesses to be called and their location and must make a general statement of what their testimony will cover”).
Defendants argue that the seventh factor, ease of access to sources of proof, weighs in favor of transfer because most of the relevant documents are in
21

Arizona, including Plaintiffs’ and the CCA correctional facilities’ records. (Mem. in Supp. of Mot. at 9; Reply at 11.) Defendants also argue that should the trial judge find that a view of Saguaro and Red Rock would aid the jury in deciding the case, such a view can be conducted only in Arizona. (Mem. in Supp. of Mot. at 9.) As to the relevant documents, the Court finds that most, if not all, documents can be easily produced and at a reasonable cost. As to Defendants’ argument that a view of Saguaro and Red Rock may be required, such argument is speculative, and there is no reason why the jury cannot view the CCA correctional facilities through various forms of media. Based on the foregoing, the Court concludes that this factor also bears little consideration.
Turning to the final factor, the state that is most familiar with the governing law, the Court concludes that this factor weighs in favor of maintaining the case in Hawaii. Plaintiffs’ complaint alleges violations of not only the federal Constitution, but also the Hawaii Constitution. (Compl. ¶¶ 3, 4, 244-359; Prayer for Relief ¶¶ 3-5.) Specifically, the complaint alleges that Defendants violated Plaintiffs’ rights under article I, sections 4 and 5, and article XII, section 7 of the Hawaii Constitution. (Compl. ¶¶ 244-359.) Although Defendants contend that the District of Arizona is competent to apply Hawaii law, this Court is more familiar with the relevant provisions of the Hawaii Constitution and the rights afforded to
22

native Hawaiians. See Television Events & Mktg., Inc. v. Amcon Distrib. Co., 416 F. Supp. 2d 948, 971 (D. Haw. 2006) (noting that another district court does not have the same level of experience with Hawaii law as this Court); Hi-Pac, Ltd., 980 F. Supp. at 1142 (same). This is particularly the case with respect to article XII, section 7, which discusses native Hawaiian customary and traditional rights. This section provides, “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.” Haw. Const. art. XII, § 7. Accordingly, this factor favors Plaintiffs.
In addition to the factors set forth above, courts also consider the private and public interest factors derived from the common law doctrine of forum non conveniens. See Decker Coal Co., 805 F.2d at 843 (noting that “forum non conveniens considerations are helpful in deciding a § 1404 transfer motion”). “Section 1404(a) essentially is a codification of the common law doctrine of forum non conveniens that allows transfer, rather than requiring dismissal, where the alternative forum is another federal district.” Lung v. Yachts Int’l, Ltd., 980 F. Supp. 1362, 1370 (D. Haw. 1997). The private interest factors include:
23

(1) relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses, and cost of obtaining attendance of willing witnesses; (3) possibility of viewing subject premises; (4) all other factors that render trial of the case expeditious and inexpensive.
Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 703 (9th Cir. 1995)
(citation omitted). The public interest factors include:
(1) administrative difficulties flowing from court congestion; (2) imposition of jury duty on the people of a community that has no relation to the litigation; (3) local interest in having localized controversies decided at home; (4) the interest in having a diversity case tried in a forum familiar with the law that governs the action; (5) the avoidance of unnecessary problems in conflicts of law.
Id. at 703-04 (citation omitted).
The Court notes that many of the private interest factors are subsumed
in the factors that were previously discussed. As to the public interest factors, the
Court concludes that such factors weigh in favor of maintaining the case in Hawaii.
For example, Plaintiffs present statistics showing that there is less congestion in
this District than in the District of Arizona, and therefore, it take less time for a
case to go to trial here. See Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337
(9th Cir. 1984) (noting that a court should consider “whether a trial may be
speedier in another court because of its less crowded docket”). In addition,
transferring the case would impose jury duty on the people of a community that has
24

little relation to the case. While this case concerns the operation of CCA correctional facilities located in Arizona, this case also concerns rights afforded to native Hawaiians under Hawaii law, and a policy enforced by Hawaii officials, which allegedly infringes upon such rights. Lastly, there is a local interest in having this controversy decided at home. As the Hawaii Supreme Court declared, “It is undisputed that the rights of native Hawaiians are a matter of great public concern in Hawaii.” Pele Def. Fund v. Paty, 73 Haw. 578, 614, 837 P.2d 1247, 1268 (1992).
The Court notes that this case is distinguishable from Davis, 2009 WL 1227841, at *5, in which the Court concluded that the § 1404(a) factors weighed in favor of transferring the case to the District of Arizona. First, in that case, Davis named as defendants, several individuals and agencies located in Arizona, including Arizona’s governor, the ADC and its Director, and Saguaro employees. Id. at *1. Thus, as the Court noted, most of the defendants were located in Arizona. Id. at *5. Here, none of Defendants are Arizona residents. Second, Davis was proceeding pro se in Arizona, whereas here, Plaintiffs are represented pro bono by attorneys from the NHLC. See id. at *1. The NHLC is located in Hawaii, and is the only private, non-profit law firm in the nation that specializes in native Hawaiian rights. (Sprenger ¶¶ 2-3.) Because none of its
25

attorneys are licensed to practice law in the District of Arizona, should the case be transferred to that District, Plaintiffs’ counsel might be forced to withdraw. (Id. ¶¶ 2, 10.) Given Plaintiffs’ indigency and the limitations they face due to their incarceration, transferring the case would not appear to be in the interest of justice. Third, Davis’s claims were limited to violations of the federal Constitution and the RLUIPA. 2009 WL 1227841, at *1. As such, Arizona’s interest in resolving the case was at least equal to that of Hawaii. Id. at *5. In this case, Plaintiffs allege violations of not only federal law, but also Hawaii law. (See Compl. ¶¶ 244-359.) For example, Plaintiffs allege that Defendants violated their native Hawaiian rights guaranteed by article XII, section 7 of the Hawaii Constitution. (Compl. ¶¶ 34759.) Not only are native Hawaiian rights “a matter of great public concern in Hawaii,” Pele Def. Fund, 73 Haw. at 614, 837 P.2d at 1268, but also this Court has more experience with the relevant provisions of the Hawaii Constitution. See Pai ‘Ohana v. United States, 875 F. Supp. 680 (D. Haw. 1995).
For the reasons set forth above, the Court concludes that, on balance, the relevant factors weigh in favor of maintaining the case in Hawaii. Accordingly, Defendants’ Motion to Transfer Venue is DENIED.
DATED: Honolulu, Hawaii, May 27, 2011.
26

IT IS SO ORDERED.
/S/ Barry M. Kurren Barry M. Kurren United States Magistrate Judge
Richard Kapela Davis, et al. v. Neil Abercrombie, et al, CV. NO. 11-00144 LEK-BMK; ORDER DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE.
27

 
 Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 1 of 34 PageID #: 2949

NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawaii 96813 Telephone: (808) 521-2302 Fax: (808) 537-4268

ANDREW B. SPRENGER anspren@nhlchi.org SHARLA MANLEY shmanle@nhlchi.org

7681 8868

KAWAHITO SHRAGA & WESTRICK LLP 1990 S. Bundy Drive, Suite 280 Los Angeles, California 90025 Telephone: (310) 746-5300 Fax: (310) 593-2520

JAMES KAWAHITO jkawahito@kswlawyers.com SHAWN C. WESTRICK swestrick@kswlawyers.com

9099 235313

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

TYRONE KAWAELANILUA`OLE NA`OKI GALDONES,
Plaintiff,
vs.
NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawaii; TED SAKAI, in his official capacity as Director of the Hawaii

CIVIL NO. 11-00144 LEK/BMK (Declaratory and Injunctive Relief and Other Civil Action)
SUPPLEMENTAL COMPLAINT FOR DAMAGES AND FOR CLASSWIDE DECLARATORY AND INJUNCTIVE RELIEF; SUMMONS

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 2 of 34 PageID #: 2950
Department of Public Safety, CORRECTIONS CORPORATION OF AMERICA,
Defendants.
SUPPLEMENTAL COMPLAINT FOR DAMAGES AND FOR CLASSWIDE DECLARATORY AND INJUNCTIVE RELIEF
PRELIMINARY STATEMENT
This civil rights action for declaratory and injunctive relief and damages, was originally filed by six Native Hawaiian religious practitioners in the Circuit Court of First Circuit Court, State of Hawaii, as Civil No. 11-1-0266-02 RMB but was removed to this Court by Defendants on March 8, 2011. After this action was filed, other Native Hawaiian religious practitioners detained in a CCA-operated facility were wrongfully disciplined in retaliation for actions viewed by Defendants as supporting this lawsuit.
Plaintiff TYRONE KAWAELANILUA`OLE NAOKI GALDONES is a Native Hawaiian religious practitioner who was incarcerated under the laws of the State of Hawaii, but is currently serving his sentence in a for-profit private prison under various governmental contracts with the State of Hawaii. By Order of this Court, dated August 13, 2012, TYRONE KAWAELANILUA`OLE NAOKI GALDONES is a named Plaintiff in this action and a proposed class representative for all claims except for his retaliation claim against Defendants.
2

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 3 of 34 PageID #: 2951
JURISDICTION AND VENUE 1. This Court has jurisdiction over the Federal Constitutional and Federal Statutory claims pursuant to 28 U.S.C. §1331 and §1343. 2. This Court has jurisdiction over Plaintiffs’ Hawaii State law claims pursuant to 28 U.S.C. § 1367. 3. There is an actual controversy between the Plaintiff and the Defendants within the meaning of the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57. 4. This action arises under the Constitution and laws of the United States, including 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1 et seq. (“RLUIPA”). 5. This action also arises under the Constitution and laws of the State of Hawaii, including Article 1, §§ 4 and 5, and Article XII, § 7 of the Hawaii State Constitution and Hawaii Revised Statutes §§ 1-1 603-21.9(1), (6) and 603-2. 6. Venue is proper in this Court pursuant to 28 USC § 1441(a) as this Court embraces the District to which the Defendants removed Plaintiffs’ State of Hawaii action.
3

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 4 of 34 PageID #: 2952
THE PARTIES 7. Plaintiff GALDONES is, and was at all times mentioned herein, an adult citizen of the United States of America, and a resident of the state of Hawaii. 8. Plaintiff GALDONES is a descendant of the aboriginal people who, before 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii. 9. Plaintiff GALDONES was convicted of violating crimes under Hawaii state law and sentenced under the same. 10. Plaintiff GALDONES is detained in a private prison in Eloy, Arizona, owned and operated by Defendant Corrections Corporation of America (“CCA”), pursuant to various contracts with the State of Hawaii and the Corrections Corporation of America. 11. Plaintiff GALDONES is a person residing in or confined to an institution for purposes of RLUIPA. 12. Each member of the Plaintiff class is an identifiable person (a) who was convicted of violating crimes under the laws of the state of Hawaii and was a resident of the state of Hawaii; (b) and who has resided in or was confined to a CCA-operated facility at any time within four years prior to the filing of this Complaint until the resolution of this lawsuit; (c) and who declares that Native
4

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 5 of 34 PageID #: 2953
Hawaiian religion is their faith. Each member of the class and subclass are persons residing in or confined to an institution for purposes of RLUIPA.
13. Defendant NEIL ABERCROMBIE, Governor of the State of Hawaii, is the chief executive of the State of Hawaii, and is capable of being sued in this Court. Defendant ABERCROMBIE is responsible for the supervision and management of all state instrumentalities and employees charged with (a) executing the State of Hawaii’s prison regulations and procedures; and (b) monitoring out-of-state public and private correctional facilities where Hawaii state inmates are serving their sentences.
14. Defendant TED SAKAI, the Director of the State of Hawaii Department of Public Safety, is sued in his official capacity as the state official responsible for overseeing the implementation of Chapter 353 of the Hawaii Revised Statutes, and more particularly, H.R.S. § 353-16.2 which concerns the oversight of those committed persons from the State of Hawaii who have been transferred to out-of-state institutions pursuant to contract with the State of Hawaii, including, but not limited to all policies relating to those committed persons’ freedom to practice their respective religions while in custody.
15. Unless otherwise specified in this Complaint, Defendants NEIL ABERCROMBIE, and TED SAKAI are collectively referred to as “Defendants STATE OF HAWAII.”
5

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 6 of 34 PageID #: 2954
16. As the primary legal custodian of those individuals incarcerated under its criminal statutes, Defendants STATE OF HAWAII must guarantee to those individuals the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system, including those State of Hawaii committed persons who have been transferred to out-of-state institutions pursuant to contract with the State of Hawaii.
17. Defendant CCA is a private, for-profit corporation organized under the laws of the State of Tennessee. CCA manages and operates the Saguaro Correctional Facilities (“SCF”), which presently supervises and controls committed persons convicted and sentenced under Hawaii state laws pursuant to various contracts executed with the Defendants STATE OF HAWAII in exchange for substantial payments made by the State of Hawaii for this service.
18. Since at least 2002, Defendant CCA and the Defendants STATE OF HAWAII have been parties to various contracts executed in the State of Hawaii in which Defendant CCA accepted responsibility of supervising and controlling those individuals who have been convicted and sentenced under the criminal statutes of the State of Hawaii and have been involuntarily transferred by Defendants STATE
6

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 7 of 34 PageID #: 2955
OF HAWAII to CCA prison facilities in exchange for substantial payments made by the State of Hawaii.
19. Based upon previous contractual relations with the State of Hawaii and based upon its present contracts with the State of Hawaii, Defendant CCA has sufficient and material contacts with the State of Hawaii and has therefore purposefully availed itself to the State pursuant to the State of Hawaii’s long-arm jurisdiction.
20. Moreover, Plaintiff GALDONES’s claims arise out of said contracts between the Defendants STATE OF HAWAII and Defendant CCA pursuant to the State of Hawaii’s long-arm jurisdiction.
21. As the contractually authorized legal custodian of those individuals incarcerated under the laws of the State of Hawaii, Defendant CCA is charged with a task and function that is traditionally and fundamentally performed by the government and/or are sufficiently intertwined with the government to the extent that Defendants CCA and its employees at SCF serve as instrumentalities of the Hawaii Department of Public Safety and are therefore state actors. Consequently, Defendant CCA and its employees of SCF must guarantee to those individuals under its supervision and control the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state
7

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 8 of 34 PageID #: 2956
laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system.
CLASS ALLEGATIONS 22. Plaintiff GALDONES brings this action, on behalf of himself and all other similarly situated persons, as a class action pursuant to Federal Rule of Civil Procedure 23. 23. The proposed Plaintiff Class is composed of and defined as:
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) and who have resided in or were confined to a CCA-operated facility at any time within two years prior to the filing of this Complaint until the resolution of this lawsuit; (c) and who declare that Native Hawaiian religion is their faith. 24. The proposed Segregation Subclass is composed of and defined as: (a) all persons residing in or confined to a CCA-operated facility at any time within two years prior to the filing of this complaint and until this lawsuit is resolved; (b) in segregation from the general population; and (c) who declare Native Hawaiian religion is their faith. 25. The proposed Plaintiff Class and Segregation Subclass consist of readily ascertainable persons who can be located using information in Defendants’ records. Defendants require that Plaintiff GALDONES and class members declare their religious faith through a registration process established by the facility.
8

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 9 of 34 PageID #: 2957
26. The potential quantity of members of the proposed classes as defined is so numerous that joinder of all members would be unfeasible and impractical. Upon information and belief, there are approximately over one hundred and fifty members of the proposed Plaintiff Class. Upon information and belief, there are approximately thirty to fifty class members of the Segregation Subclass. As of November 2010, approximately 7% of the population at SCCF was registered as Native Hawaiian religious practitioners. As of November 2010, approximately 35% of the Hawaii inmates at RRCF registered was Native Hawaiian religious practitioners. The disposition of their claims through this class action will benefit both the parties and this Court.
27. Plaintiff GALDONES’s claims are typical of all persons who were convicted of violating crimes in Hawaii and were residents of the state of Hawaii residing in or confined to a CCA-operated facility and who declare that Native Hawaiian religion is their faith. Plaintiff GALDONES’s claims are also typical of persons residing in or confined to a CCA-operated facility, segregated from the general population, and who declare that their faith is Native Hawaiian religion. Plaintiff GALDONES’s claims are typical of those in this class because Defendants failed to provide Plaintiff and those similarly situated with the right to practice Native Hawaiian religion as required by federal law. In sum, Plaintiff
9

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 10 of 34 PageID #: 2958
GALDONES’s claims are typical of both the proposed Plaintiff Class and the Segregation Subclass.
28. Plaintiff GALDONES will fairly and adequately represent the class members and will vigorously pursue this suit. Plaintiff GALDONES possesses the requisite personal interest in the subject matter of the lawsuit. The classes are represented by counsel experienced in class action and civil rights litigation and in the statutory and constitutional provisions at issue in this case.
29. The nature of this action and the nature of the laws available to Plaintiff GALDONES make use of the class action format a particularly efficient and appropriate procedure to afford relief to Plaintiff for the wrongs committed by Defendants.
30. Defendants have acted or refused to act on grounds generally applicable to all members of the class, making appropriate final declaratory and injunctive relief to the class as a whole.
31. There are common questions of law and fact as to the members of proposed Plaintiff Class and proposed Segregation Subclass which predominate over questions affecting only individual members of these classes. Questions of law and fact common to the class members in the classes include, but are not limited to, the following:
10

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 11 of 34 PageID #: 2959
a. Whether Defendants’ conduct deprived and/or deprives class members of rights guaranteed under RLUIPA;
b. Whether Defendants’ conduct deprived and/or deprives class members of rights guaranteed by the United States Constitution and the Hawaii State Constitution;
c. Whether Plaintiff GALDONES and class members are entitled to the declaratory relief prayed for below;
d. Whether Plaintiff GALDONES and class members are entitled to injunctive relief; and
e. The nature of such injunctive and declaratory relief. FACTUAL ALLEGATIONS
32. Upon information and belief, the federal government provides financial assistance to Defendants STATE OF HAWAII which is responsible for administering corrections in Hawaii.
33. Upon information and belief, in or around 2002, the Defendants STATE OF HAWAII executed one or more contracts with CCA delegating its statutory authority to supervise and monitor the custody of certain individuals who were convicted of violating crimes under Hawaii state law and sentenced under the same at a privately-owned correctional facility located in Eloy, Arizona.
11

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 12 of 34 PageID #: 2960
34. On information and belief, Native Hawaiians make up the highest percentage of people incarcerated in CCA-operated facilities.
35. A recent study by the Office of Hawaiian Affairs concluded that Native Hawaiians constitute 41% of all persons incarcerated in out-of-state facilities like Saguaro Correctional Center and Red Rock Correctional Center. Native Hawaiians constitute 39% of the imprisoned population, although they make up 24% of the general population of Hawaii.
36. Upon information and belief, in or around 2002, the Defendants STATE OF HAWAII executed one or more contracts with CCA delegating its statutory authority to supervise and monitor the custody of certain individuals who were convicted of violating crimes under Hawaii state law and sentenced under the same at a privately-owned correctional facility located in Eloy, Arizona.
37. Defendant CCA’s execution of those previous and current contracts with the Defendants STATE OF HAWAII has established substantial contacts with the State of Hawaii and has purposefully availed itself to the State of Hawaii concerning its scope of responsibility of supervision of Plaintiffs at CCA facilities.
38. Plaintiff TYRONE KAWAELANILUA`OLE NAOKI GALDONES (“GALDONES”) was convicted of violating crimes under Hawaii state law and sentenced under the same. GALDONES was involuntarily transferred from a private prison owned and operated by CCA pursuant to previous governmental
12

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 13 of 34 PageID #: 2961
contracts with the STATE OF HAWAII to SCF in Eloy, Arizona pursuant to various contracts with the STATE OF HAWAII and CCA.
39. GALDONES has been in general population for most of the time that he has been detained in SCF.
40. From about April 2012 until June 2012, GALDONES’ security classification precluded him from the general population of inmates at SCF.
41. Plaintiff GALDONES is a Native Hawaiian whose religious and spiritual beliefs and practices originate in, and are interpreted from within the traditional Native Hawaiian culture and community.
42. A critical tenet of Native Hawaiian religion essential to the sincere expression of Plaintiff GALDONES’ faith is to congregate out of doors on a daily basis, preferably at dawn, to pule (pray), oli (chant), hula (dance), and perform other specific religious protocol activities.
43. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiff GALDONES’ faith is to participate in certain religious rituals and ceremonies marking the beginning and end of the Makahiki season, a four month period dedicated to Lono, the Hawaiian god of agriculture, fertility and peace.
44. The Makahiki season is signaled by the rising of the Makali`i (Pleiades) Constellation in October-November of each year. The Makahiki season
13

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 14 of 34 PageID #: 2962
ends by the setting of Makali`i (Pleiades) Constellation in February-March of each year.
45. The ceremonies marking the beginning and end of Makahiki Season includes the following customary and traditional activities critical to the Native Hawaiian faith: a) a sunrise service; b) a two-hour session dressing the image of Lono, and preparing offerings and giving offerings, including chanting and dancing; c) a one-hour procession; d) a 30-minute opening prayer; e) a 1.5-hour session of traditional games; f) a two-hour session of chanting, prayer, and an awa ceremony; g) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. These activities should be performed outdoors by all practitioners, as well as attendance and presence of a kahu or other religious leaders.
46. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiff GALDONES’ faith is to have access to the following sacred items required for specific religious protocol activities: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd
14

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 15 of 34 PageID #: 2963
drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
47. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiff GALDONES’ faith is to establish an out-of-doors altar composed of at least two spiritually significant stones as a focal point for specific religious protocol activities.
48. A critical tenet of Native Hawaiian religion essential to the expression of Plaintiff GALDONES’ faith is to regularly meet with a respected kahu (religious) leader to assist in their worship activities.
49. A State of Hawaii Department of Public Safety employee named Kaina Haili visits SCF occasionally throughout the year purportedly to aid Plaintiffs and other similarly situated inmates’ spiritual needs.
50. Kaina Haili’s occasional visits, however, do not address Plaintiffs’ spiritual needs to meet with a kahu on a regular basis.
51. Because Plaintiffs cannot regularly meet with a kahu, they are prevented them from engaging in conduct that is important to them and motivated by sincere religious belief, and thereby puts substantial pressure on them to modify their respective behavior and to violate their respective beliefs.
15

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 16 of 34 PageID #: 2964
52. As a result of Defendants’ policies and practices, Plaintiff GALDONES is unable to practice these critical tenets of Native Hawaiian religion.
53. Plaintiffs are informed and believe that prisoners of other religions who are incarcerated in CCA-operated facilities are allowed to exercise their religion by gathering together on a regular basis to pray, chant, and perform other activities that are essential to expressing their faith without unreasonable disturbance and/or intrusion from employees of CCA-operated facilities or other inmates.
54. Plaintiff GALDONES is informed and believes that prisoners of other religions who are incarcerated in CCA-operated facilities are allowed to participate in religious ceremonies and rituals at specified times during the year that are integral to their faith and that express their religious and spiritual beliefs.
55. Plaintiff GALDONES is informed and believes that prisoners of other religions who are incarcerated in CCA-operated facilities are allowed access to religious items that are integral to their faith and that express their religious and spiritual beliefs.
56. Plaintiff GALDONES is informed and believes that prisoners of other religions who are incarcerated in SCF are allowed to access a worship space appropriate to their faith and that express their religious and spiritual beliefs.
16

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 17 of 34 PageID #: 2965
57. Plaintiff GALDONES is informed and believes that prisoners of other religions who are incarcerated in SCF have regular and frequent access to a spiritual advisor to assist them in practicing their respective faiths.
58. Plaintiffs are informed and believe that other prisoners of other religions who are precluded from the general population at SCF are allowed to exercise their religion by regularly meeting with a spiritual advisor to assist in: a) regular worship activities; b) special worship activities for certain religiously significant holidays; and c) providing access to sacred worship items essential to expressing their faith.
59. Plaintiffs are informed and believe that the Defendant CCA provides regularly scheduled weekly educational classes on topics concerning Native Hawaiian culture, language and history at SCF.
60. Plaintiffs are informed and believe that the Warden and or other personnel at SCF retain absolute discretion to modify, cancel and/or reschedule the weekly Native Hawaiian educational classes without notice.
61. Plaintiffs are informed and believe that SCF provides inmates who are Christian with the option of being housed in a separate area within SCF that allows them to: a) worship together on a daily basis; b) observe all important holidays with specific protocol; c) access religiously sacred items and educational materials required of their faith; d) access to a spiritually significant space for worship
17

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 18 of 34 PageID #: 2966
activities; and e) meet regularly with a spiritual teacher/leader to assist in their worship.
62. In or around July 2009, GALDONES had a security classification at SCF allowing him to be in the general population at SCF.
63. In or around July 2009, GALDONES submitted an inmate request form, in accordance with CCA’s administrative procedure, requesting to be allowed to gather daily with fellow Native Hawaiian inmates in observance of the Native Hawaiian Religion at an outdoor location during sunrise, last approximately 30 minutes, and include chanting, dancing and prayer.
64. CCA Employees never responded to GALDONES’ inmate request form concerning his request to gather daily with fellow Native Hawaiian inmates in observance of the Native Hawaiian Religion.
65. From approximately August 2009 to April 2012, GALDONES attended SCF’s Hawaiian cultural education classes while his security classification was in general population.
66. In or around July 2009 GALDONES submitted an inmate request form requesting to be allowed to celebrate the opening and closing days of the 2009-10 Makahiki Season.
67. With respect to the Makahiki requests as described above, GALDONES requested permission to perform certain religious rituals and
18

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 19 of 34 PageID #: 2967
ceremonies that included the following activities: a) two-hour preparation session on the day before; b) a sunrise service; c) a two-hour session dressing the image of Lono, and preparing offerings and giving offerings, including chanting and dancing; d) a one-hour procession; e) a 30-minute opening prayer; f) a 1.5-hour session of traditional games; g) a two-hour session of chanting, prayer, and an awa ceremony; h) a 30-minute clean up session; i) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. They requested access to the outdoors for all the above activities, as well as attendance and presences of a kahu or other religious leaders.
68. CCA employees never responded to GALDONES’ inmate request form concerning his Makahiki request.
69. In or around November 2009, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the opening of the 2009-10 Makahiki Season, but this ceremony failed to include all of the specific religious protocol activities previously requested by Plaintiffs.
70. In or around February 2010, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the closing of the 2009-10 Makahiki Season, but the ceremony did not
19

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 20 of 34 PageID #: 2968
include all of the specific religious protocol activities previously requested by Plaintiffs.
71. In or around November 2010, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the opening of the 2010-11 Makahiki Season, but this ceremony failed to include all of the specific religious protocol activities necessary for Plaintiff GALDONES to observe his faith.
72. In or around February 2011, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the closing of the 2010-11 Makahiki Season, but the ceremony did not include all of the specific religious protocol activities previously requested by Plaintiffs.
73. In or around November 2011 some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the opening of the 2011-12 Makahiki Season, but this ceremony failed to include all of the specific religious protocol activities previously requested by Plaintiffs.
74. In or around February 2012, some inmates in the general population of the Saguaro Correctional Facility participated in a ceremony purportedly recognizing the closing of the 2011-12 Makahiki Season, but the ceremony did not
20

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 21 of 34 PageID #: 2969
include all of the specific religious protocol activities previously requested by Plaintiffs.
75. In or around July 2009, Plaintiff GALDONES submitted an inmate request form requesting access to religiously significant objects for daily use and for use during the Makahiki celebration.
76. Specifically, Plaintiff GALDONES sought access to: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
77. CCA did not grant GALDONES’ request concerning his sacred items request.
78. In or around July 2009, Plaintiff GALDONES submitted an inmate request form requesting authorization to prepare a sacred space in their respective prison yards with at least two spiritually significant stones to serve as a focal point for their worship activities.
21

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 22 of 34 PageID #: 2970
79. CCA employees never responded to GALDONES’ inmate request form concerning his request for a sacred space.
80. The original complaint, filed in or around February 2011, addressed requests made by four other Native Hawaiian practitioners at Saguaro for the substantially the same religious exercises requested by Plaintiff GALDONES in or around July 2009.
81. In or around October 2011, the court in this case granted leave to the Plaintiffs, which included four Native Hawaiian practitioners at SCF, to convert their individual case into a proposed class action by filing class action allegations on behalf of all Native Hawaiian practitioners in CCA-operated facilities.
82. In or around November 2011, some Native Hawaiian practitioners at Saguaro Correctional Center, one of the facilities that would be affected by a class action, began writing letters about the need for a class action to protect their rights.
83. At all relevant times alleged herein, Todd Thomas serves as the Warden at SCF.
84. At all relevant times alleged herein, Ben Griego serves as the Assistant Warden at SCF.
85. In or around November 2011, Warden Todd Thomas and Assistant Warden Ben Griego discovered that Native Hawaiian practitioners were writing letters about the need for a class action to protect their rights. Shortly thereafter,
22

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 23 of 34 PageID #: 2971
Warden Todd Thomas and Assistant Warden Ben Griego began questioning inmates, including Plaintiffs, about these letters. Warden Thomas and Assistant Warden Griego investigated whether Plaintiff GALDONES was involved in encouraging other Native Hawaiian practitioners to write letters of support for this class action.
86. On or about April 25, 2012, Plaintiff GALDONES attended SCF’s regularly scheduled Hawaiian culture class, where he attempted to participate in prayer, chanting, dancing and other religious protocol with and among other Native Hawaiian practitioners.
87. Like most other Hawaiian classes, this session was led by inmates designated by CCA, instead of a well-respected kahu or kumu.
88. Plaintiff GALDONES often serves as a class assistant for the Native Hawaiian classes offered at Saguaro.
89. Assistant Warden Ben Griego is responsible for oversight of the Native Hawaiian classes offered at Saguaro.
90. On or about April 25, 2012, Plaintiff GALDONES attempted to ensure that appropriate protocols were followed during the Hawaiian class.
91. Immediately following Plaintiff GALDONES’ attempt to practice Native Hawaiian religious activities SCF’s Hawaiian culture class on or about
23

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 24 of 34 PageID #: 2972
April 25, 2012, Plaintiff GALDONES was charged with certain violations of SCF inmate policies.
92. The charges against GALDONES were documented in a written disciplinary report signed by Assistant Warden Ben Griego.
93. The charges against GALDONES resulted in his immediate detention in disciplinary segregation.
94. Plaintiff GALDONES had no prior disciplinary charges relating to institutional violence.
95. Upon being placed in segregation in April 2012, GALDONES submitted an inmate request form seeking to meet with a kahu to provide him with access to those sacred items as requested.
96. While Plaintiff GALDONES was in segregation, Kaina Haili met with GALDONES once.
97. Kaina Haili, however, did not provide GALDONES with any sacred items during this visit.
98. Kaina Haili, however, did not assist GALDONES with prayer, chanting, dancing or other Native Hawaiian religious protocol during this May 15, 2012 visit.
24

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 25 of 34 PageID #: 2973
99. Plaintiff GALDONES appealed the wrongful disciplinary charges leveled against him by Assistant Warden Griego but Warden Thomas denied this appeal.
100. Defendants’ wrongful charges against Plaintiff GALDONES resulted in his immediate detention in segregation.
101. The charges against GALDONES were in direct response to his attempt to practice his Native Hawaiian religion practices.
102. Practicing one’s religion is protected conduct under the First Amendment.
103. The charges against GALDONES were in direct response to his support for this proposed class action.
104. Supporting a class action is protected conduct under the First Amendment.
105. Defendants are well-aware of how well-regarded GALDONES is by other Native Hawaiian practitioners. By placing him in segregation, Defendants sought to make an example of him to deter other Native Hawaiian practitioners from providing testimony that would support the approval of a class action.
106. The charges against GALDONES and resulting detention in segregation have caused him tangible harm as set forth below.
25

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 26 of 34 PageID #: 2974
107. The charges against GALDONES and resulting detention in segregation have precluded GALDONES from meeting with other Native Hawaiians to pray, chant, dance and perform other religious protocol essential to his faith.
108. The charges against GALDONES and resulting detention in segregation precluded GALDONES from his access to certain sacred items as described above to allow him perform important religious protocol essential to his faith.
109. The charges against GALDONES and resulting detention in segregation precluded GALDONES from meeting with a spiritual leader to assist him in performing important religious protocol essential to his faith.
110. The charges against Plaintiff GALDONES have caused him to lose his job, deprive him of his ability to serve as a class assistant in Hawaiian classes offered at Saguaro, and deprived him wrongfully of other privileges.
111. The charges against Plaintiff GALDONES and resulting detention in segregation did not advance any legitimate correctional goal.
112. On information and belief, the disciplinary charges against Plaintiff GALDONES were reported by CCA to the State Defendants Neil Abercrombie and Ted Sakai, as required by the contract between CCA and the State Defendants.
26

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 27 of 34 PageID #: 2975
113. On information and belief, the State Defendants failed to investigate the wrongful disciplinary charges against Plaintiff GALDONES.
114. The charges against GALDONES and resulting detention in segregation precluded GALDONES from meeting with other Native Hawaiians to pray, chant, dance and perform other religious protocol essential to his faith.
115. SCF’s charges against GALDONES and resulting detention in segregation precluded GALDONES from his access to certain sacred items as described above to allow him perform important religious protocol essential to his faith.
116. The charges against GALDONES and resulting detention in segregation precluded GALDONES from meeting with a spiritual leader to assist him in performing important religious protocol essential to his faith.
117. The charges against GALDONES will harm him even after he returns to general population. As a result of those charges, GALDONES will be barred from working for six months. Prior to the wrongful charges, GALDONES worked as a porter and earned wages that he used for hygiene items.
118. As a result of Defendants’ wrongful charges against him, GALDONES will be barred from participating in hobby shop where he crafts objects that have cultural significance to him as a Native Hawaiian and that he sends to his family in Hawaii.
27

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 28 of 34 PageID #: 2976
119. As a result of Defendants’ wrongful charges against him, Plaintiff GALDONES will be restricted in the amount of participation he can engage in as a member of the Hawaiian classes offered by Defendants at Saguaro.
120. The charges against GALDONES and resulting detention in segregation did not advance any legitimate correctional goal.
121. GALDONES attempted to address the wrongful charges through an appeal at the facility level and by filing grievances concerning the retaliation.
122. GALDONES’ disciplinary charges and resulting administrative detention was a product of Defendants’ reckless disregard for Plaintiff GALDONES’ constitutional rights and were done in a deliberate and malicious attempt to retaliate against them for asserting their First Amendment rights.
123. Defendants’ actions proximately caused Plaintiff GALDONES’ injuries.
CLAIMS FOR RELIEF 124. Plaintiff GALDONES hereby re-alleges the fore-going paragraphs, and in so doing, Plaintiff GALDONES hereby joins in and asserts COUNTS I through XXVI of the Amended Complaint on his own behalf and on behalf of all those similarly situated. 125. Plaintiff GALDONES asserts an additional claim of unlawful retaliation as set forth below.
28

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 29 of 34 PageID #: 2977
COUNT XXVII: DEFENDANTS’ UNLAWFUL RETALIATION 126. Plaintiff GALDONES re-alleges the fore-going paragraphs, and incorporates them herein by reference. 127. Upon information and belief, the retaliatory acts taken by Warden Todd Thomas and Assistant Warden Ben Griego are directly traceable to the Defendant STATE OF HAWAII’s policy or custom of condoning, and/or, acquiescing in retaliation by its contractor Defendant CCA. 128. In the alternative, the retaliatory acts taken by Warden Todd Thomas and Assistant Warden Ben Griego are directly traceable to the Defendant STATE OF HAWAII’s policy of illegally delegating to Defendant CCA all of their constitutional and statutory responsibilities owed to Plaintiff GALDONES which permits its contractor, Defendant CCA to arbitrarily and capriciously places inmates in segregation for charges that do not reasonably advance legitimate correctional goals. 129. Upon information and belief, Defendant CCA authorized Warden Todd Thomas and Assistant Warden Ben Griego, employees of CCA, to serve as their chief policymakers at SCF to enforce a policy and/or customary practice that retaliates against inmates by leveling disciplinary charges against them that does not reasonably advance a legitimate correctional goal.
29

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 30 of 34 PageID #: 2978
130. In the alternative, the retaliatory acts taken by Warden Todd Thomas and Assistant Warden Ben Griego are directly traceable to Defendant CCA’s custom or policy of approving of, and or acquiescence in retaliation by its employees.
131. Consequently, Defendant STATE OF HAWAII’s actions and or omissions have resulted in Defendant CCA’s policy of retaliating against inmates by leveling disciplinary charges against them because they have exercised their First Amendment rights to file prison grievances, otherwise seek access to the courts, and practice their religion.
132. Defendants took adverse action against Plaintiff GALDONES because of his protected conduct.
133. Defendants’ adverse action against Plaintiff GALDONES caused him tangible harm.
134. Beyond causing these tangible harms, Defendants’ adverse actions against Plaintiffs GALDONES chilled his exercise of his First Amendment rights.
135. Defendants’ disciplinary charges against Plaintiff GALDONES did not reasonably advance a legitimate correctional goal.
136. As a consequence of the above violation, Plaintiff GALDONES has suffered, and continue to suffer irreparable injury that must be readdressed by declaratory and injunctive relief.
30

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 31 of 34 PageID #: 2979
137. As a direct, proximate and foreseeable result of Defendants’ actions, Plaintiffs GALDONES has also suffered damages caused by Defendants’ violations as described above in amounts to be established at trial.
PRAYER FOR RELIEF WHEREFORE, Plaintiff GALDONES prays that this Court:
1. Issue an order, pursuant to Federal Rule of Civil Procedure 23, certifying this action as a Class Action, Appoint Plaintiff GALDONES as a representative of the Class; and Appoint Counsel for Plaintiffs as Class Counsel;
2. Declare that Defendants have violated Plaintiff GALDONES’ and all other class members’ rights under the Free Exercise Clause of the First Amendment of the United States Constitution;
3. Declare that Defendants have violated Plaintiff GALDONES’ and all other class members’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
4. Declare that Defendants have violated Plaintiff GALDONES’ and all other class members’ rights under the Free Exercise Clause of the Hawaii State Constitution;
5. Declare that Defendants have violated Plaintiff GALDONES’ and all other class members’ rights under the Equal Protection Clause of the Hawaii State Constitution;
31

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 32 of 34 PageID #: 2980
6. Declare that Defendants have violated Plaintiff GALDONES’ and all other class members’ rights under Article XII Section 7 of Hawaii State Constitution and H.R.S. 1-1;
7. Declare that Defendants violated RLUIPA; 8. Order Defendants to allow Plaintiff GALDONES and all other class members to exercise their Native Hawaiian religion by gathering once daily in observance of the Native Hawaiian Religion; 9. Order Defendants to allow Plaintiff GALDONES and all other class members to exercise their Native Hawaiian religion by participating in certain and specific ceremonies critical to their observation of the annual Makahiki Season as requested by Plaintiffs; 10. Order Defendants to allow Plaintiff GALDONES and all other class members to exercise their Native Hawaiian religion by using and maintaining traditional and customary objects and items that are essential to expressing their religious belief and faith as requested by Plaintiffs 11. Order Defendants to allow Plaintiff GALDONES and all other class members to exercise their Native Hawaiian religion by constructing and accessing an outdoor sacred space to expressing their religious belief and faith as requested by plaintiffs
32

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 33 of 34 PageID #: 2981
12. Order Defendants to allow Plaintiff GALDONES and all other class members to exercise their Native Hawaiian religion by meeting a spiritual leader on a daily basis to expressing their religious belief and faith as requested by plaintiffs.
13. Order Defendants to develop a comprehensive plan and promulgate official policy guidelines on how Native Hawaiians who have been convicted and sentenced under the laws of the State of Hawaii can practice their religion on a regular and equal basis with all other religions represented at correctional facilities.
14. Appoint a Special Master to monitor Defendants’ compliance with the relief granted by this Court;
15. Grant Plaintiff GALDONES and all other class members compensatory damages against Defendants jointly and severally, in an amount to be proven at trial;
16. Award Plaintiff GALDONES and all other class members their costs, including reasonable attorneys’ fees and costs, as authorized by statute; and
17. Declare that Defendants committed an unlawful retaliation against Plaintiff GALDONES by placing him in segregation;
18. Award Plaintiff GALDONES compensatory and punitive damages against Defendants for unlawful retaliation;
33

Case 1:11-cv-00144-LEK-BMK Document 146 Filed 08/22/12 Page 34 of 34 PageID #: 2982
19. Order Defendants to expunge the wrongful disciplinary charges described herein from Plaintiff GALDONES’s institutional files and any other records maintained by Defendants;
20. Order Defendants to return Plaintiff GALDONES to the job he held prior to the wrongful disciplinary charges complained-of herein and to reinstate his pre-retaliation pay;
21. Enjoin Defendants from pursuing any further retaliation against Plaintiff GALDONES;
22. Enjoin Defendants from taking retaliatory adverse actions against Plaintiff GALDONES, any other named Plaintiff, or any other class member;
23. Order Defendant STATE OF HAWAII to monitor any decision by Defendant CCA to discipline Plaintiff GALDONES, any other named Plaintiff, or any other class member with segregation;
24. Grant such other and further appropriate relief as this Court deems just and proper.
DATED: Honolulu, Hawaii, August 22, 2012.
/s/ Andrew B. Sprenger ANDREW B. SPRENGER SHARLA MANLEY JAMES KAWAHITO SHAWN C. WESTRICK Attorneys for Plaintiffs
34

 
 Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 1 of 72 PageID #: 3588

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAl POAHA, )

TYRONE KAWAELANILUA'OLE

)

NA'OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; TED SAKAI, in his

)

official capacity as the

)

Director of the Hawaii

)

Department of Public Safety; )

CORRECTIONS CORPORATIONS OF )

AMERICA,

)

)

Defendants.

)

)

CIVIL NO. 11-00144 LEK-BMK

ORDER DENYING PLAINTIFF RICHARD KAPELA DAVIS'S AND PLAINTIFF JAMES KANE III'S MOTION FOR PRELIMINARY INJUNCTION
Before the Court is Plaintiff Richard Kapela Davis's and Plaintiff James Kane Ill's (collectively "Moving Plaintiffs") Motion for Preliminary Injunction ("Motion"), filed on April 26, 2012. [Dkt. no. 75.] Defendants Neil Abercrombie, in his official capacity as the Governor of the State of Hawaii, Jodie Maesaka-Hirata, in her official capacity as Interim Director of the Hawaii Department of Public Safety, and Corrections Corporation of America ("CCA", all collectively "Defendants") filed their memorandum in opposition on

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 2 of 72 PageID #: 3589
July 30, 2012, and the Moving Plaintiffs filed their reply on August 31, 2012. [Dkt. nos. 120, 154.]
This matter came on for an evidentiary hearing on September 17, 2012. Appearing on behalf of the Moving Plaintiffs were Sharla Manley, Esq., and Moses Haia, III, Esq., and appearing on behalf of Defendants were Rachel Love, Esq., and April Luria, Esq. The Court heard live testimony from Ben Griego, Sarah Blank, and Kaiana Haili. After careful consideration of the Motion, supporting and opposing documents, the testimony at the hearing, and the arguments of counsel, the Moving Plaintiffs' Motion is HEREBY DENIED for the reasons set forth below.
BACKGROUND Plaintiffs Richard Kapela Davis, Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane III, and Elington Keawe (collectively "Plaintiffs") filed their Complaint for Declaratory and Injunctive Relief and Damages ("Complaint") in state court on February 7, 2011. The Complaint sought: declaratory relief that Defendants violated Plaintiffs' constitutional and statutory rights to the free exercise of their religion; injunctive relief preventing Defendants from exercising policies that caused this injury to Plaintiffs; and damages pursuant to 42 U.S.C. § 1983. [Dkt. no. 1-2.] Defendants
2

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 3 of 72 PageID #: 3590
removed this action on March 8, 2011 based on federal question
jurisdiction. [Notice of Removal at ~ 3.]
On November 14, 2011, Plaintiffs filed their Amended
Complaint for Damages and for Classwide Declaratory and
Inj unctive Relief ("First Amended Complaint") . 1 [Dkt. no. 42.]
The First Amended Complaint alleges the following claims relevant
to the instant Motion:
·violation of Plaintiffs' right to the free exercise of their religion pursuant to the First and Fourteenth Amendments of the United States Constitution as to access to sacred items ("Count III");
·violation of Plaintiffs' equal protection rights pursuant to the Fourteenth Amendment of the United States Constitution as to access to sacred items ("Count VIII");
·violation of Plaintiffs' right to free exercise of their religion pursuant to Article I, Section 4 of the Hawai'i State Constitution as to access to sacred items ("Count XIII") ;
·violation of Plaintiffs' equal protection rights pursuant to Article I, Section 5 of the Hawai'i State Constitution as to access to sacred items ("Count XVIII"); and
·violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"), as to access to sacred items ("Count XXIV") .
I. Motion
The Moving Plaintiffs are Hawai'i citizens who were
convicted and sentenced for crimes under Hawai'i law. Plaintiff
1 As of the date of this Order, Plaintiffs have not yet filed their motion for class certification. The Court also notes that neither Plaintiffs' Second Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief nor Plaintiff Tyrone Kawaelanilua'ole Na'oki Galdones's Supplemental Complaint for Damages and for Classwide Declaratory and Injunctive Relief, both filed August 22, 2012, are currently before the Court. [Dkt. nos. 145, 146.]
3

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 4 of 72 PageID #: 3591
Davis is an inmate at Saguaro Correctional Center ("Saguaro U),
and Plaintiff Kane is an inmate at Red Rock Correctional Center
("Red Rock U). Both facilities are in Arizona. [First Amended
Complaint at ~~ 35, 38, 42.] The instant Motion concerns the
Moving Plaintiffs' "personal Native Hawaiian prayer object[s]u:
Plaintiff Davis's kukui nut, which is one-inch in diameter
("Davis Prayer Object U), which Defendants determined was
contraband; and Plaintiff Kane's turtle pendant ("Kane Prayer
Object U), which Defendants allegedly defiled. [Motion at 2-3.]
The Motion seeks the following relief:
-an order requiring Defendant Abercrombie and Defendant MaesakaHirata (collectively "State Defendants U) to instruct CCA, Saguaro, and its agents and employees "to execute all necessary administrative protocol to restore" the Davis Prayer Object; [id. at 2;]
-an order requiring CCA, Saguaro, and its agents and employees "to immediately execute all necessary administrative protocol to restore u the Davis Prayer Object; [id. at 3;]
-an order requiring the State Defendants to instruct CCA, Red Rock, and its agents and employees "to execute all necessary administrative protocol to allowingU Plaintiff Kane to replace the Kane Prayer Object; [id.;]
-an order requiring CCA, Red Rock, and its agents and employees "to execute all necessary administrative protocol allowingU Plaintiff Kane to replace the Kane Prayer Object; [id.;]
-an order requiring Defendants, and their agents and employees, "to comply with certain and specific protocol as to the handling and care of Native Hawaiian personal items[;]U [id. ; ]
-an award of attorneys' fees and costs incurred in bringing the instant Motion; [id. at 4;] and
-any other appropriate relief [id.].
The Moving Plaintiffs argue that Defendant Abercrombie,
as the State's chief executive, is responsible for the
supervision and management of the state entities and employees
4

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 5 of 72 PageID #: 3592
that execute the State's prison regulations and procedures and monitor the out-of-state correctional facilities where State inmates are serving their sentences. Defendant Maesaka-Hirata is the State official responsible for overseeing the implementation of Haw. Rev. Stat. Chapter 353, including Haw. Rev. Stat. § 35316.2, which governs the transfer of State inmates to out-of-state facilities ("Out-of-State Inmates"). The Moving Plaintiffs argue that the State Defendants must guarantee the Out-of-State Inmates' rights, privileges, and immunities secured by the Hawai'i State Constitution and the United States Constitution, as well as state and federal laws. [Mem. in Supp. of Motion at 23.] CCA is a private, for-profit corporation that has contracts with the State to manage Saguaro, Red Rock, and other facilities where the Out-of-State Inmates are incarcerated pursuant to State contracts. [Id. at 3 (citing Motion, Decl. of Andrew B. Sprenger ("Sprenger Decl."), Exh. A (example of contract)).] Plaintiffs argue that the federal government provides the State with funds for the administration of criminal corrections, and these funds are used to pay CCA for its services. [Id. at 3.]
A. Plaintiff Davis Background Plaintiff Davis states that, in or around June 2006,
while he was incarcerated at Diamondback Correctional Facility ("Diamondback"), an Oklahoma facility managed by CCA, Defendants
5

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 6 of 72 PageID #: 3593
authorized John Keola Lake, "a revered and well-respected kumu,"2 to meet with him and other practitioners of the Native Hawaiian religion. Plaintiff Davis found Kumu Lake's visit to be "spiritually healing." [Davis Decl. at ~ 24.] According to Plaintiff Davis, during Kumu Lake's visit, Defendants "authorized him to give" Plaintiff Davis the Davis Prayer Object, "a small cloth pouch containing a kukui nut wrapped in a upena (net), and tied off with a pupu (shell)." [Id. at ~ 25.] The Davis Prayer Object is "a symbol of enlightenment and knowledge with the upena representing the net that binds and holds us together, and the pupu symbolizing the three pikos (center)." [Id.] Kumu Lake also told Plaintiff Davis that it was to remind him of Kumu Lake's teachings and his time with other Native Hawaiian Religion practitioners, as well as to give him "spiritual comfort" after Kumu Lake left. [Id. at ~ 26.] At some point after receiving the Davis Prayer Object from Kumu Lake, Plaintiff Davis was transferred to Saguaro.
Plaintiff Davis kept the Davis Prayer Object in his possession and used it daily in his prayers and chants, and to gain and sustain his mana. He also used it in dances, other religious protocol, and other communal religious activities. It was particularly important to him for times when he could not
2 A kumu is a teacher. [Motion, Decl. of Ty Preston Kawika Tengan ("Tengan Decl.") at ~ 18.]
6

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 7 of 72 PageID #: 3594
participate in group religious activities. It also provided him with spiritual comfort because it was from his homeland and he is thousands of miles away from his family, community, culture, and homeland. [Id. at ~~ 27-29.]
On February 20, 2012, "Case Manager Blank" confiscated the Davis Prayer Object during a routine search of Plaintiff Davis's cell. Plaintiff Davis tried to explain its religious significance, which Blank refused to acknowledge. Blank referred to it as a "'rock' or a 'nut,' which [Plaintiff Davis] found demeaning and insensitive to [his] religion." [Id. at ~ 30.] Blank determined that the Davis Prayer Object was contraband, and gave Plaintiff Davis the choice between destroying it or sending it away. Plaintiff Davis mailed it to his attorney for safekeeping. [Id. at ~ 32; Sprenger Decl. at ~ 4, Exh. C (Disposition of Non-Allowable Property form for "Nut").] Plaintiff Davis states that the possession of the Davis Prayer Object "is critical to [his] Native Hawaiian religion," and its deprivation is causing him "strong spiritual injury" and is causing him to "grow spiritually weaker by the day[.]" [Davis Decl. at 1 33.] Plaintiff Davis states that "[i]t is [his] understanding that other religions are allowed to retain spiritually significant objects as part of their religious practices such as Christians." [Id. at ~ 32.] Thus, he asserts
7

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 8 of 72 PageID #: 3595
that the confiscation of his prayer object "is patently discriminatory." [Id.]
B. Plaintiff Kane Background Plaintiff Kane states that, in or around 2007, Red Rock
authorized him to possess the Kane Prayer Object, which his father gave him. Plaintiff Kane used it daily in his prayers and chants and to gain and sustain his mana. It was particularly important to him when he was not able to participate in group religious activities. He kept it in his possession and it provided him with spiritual comfort because it was from his homeland and because his father made it. [Motion, Decl. of James Kane, III ("Kane Decl.") at ~~ 18-20.]
Plaintiff Kane states that, on February 7, 2012, Red Rock employees conducted a routine search of his cell. The Kane Prayer Object was in his cell during the search. After the search, Plaintiff Davis discovered that it was broken. He asserts that Red Rock employees must have broken it because they were the only ones in the cell during the search. [Id. at ~ 21.] Plaintiff Kane states "[i]t is [his] understanding that Red Rock employees are instructed to respect and avoid mishandling sacred objects belonging to inmates of other religions." [Id. at ~ 22.] He feels "a strong spiritual injury" because the Kane Prayer Object is permanently damaged and he believes that its destruction was discriminatory, "demeaning and insensitive to
8

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 9 of 72 PageID #: 3596
[his] religion." [Id. at ~~ 22-23.] Plaintiff Kane completed an Informal Resolution form regarding the incident. [Sprenger Decl., Exh. D.]
c. Background Regarding the Native Hawaiian Religion
The Moving Plaintiffs state that they learned their Native Hawaiian religion through immersion in Hawaiian culture and religion. The Native Hawaiian religious and spiritual beliefs originate and are interpreted from the traditional Native Hawaiian culture and community. [Davis Decl. at ~~ 4-6; Kane Decl. at ~~ 4-5.] The Native Hawaiian religion involves, inter alia, observing rituals and performing activities which acknowledge 'aumakua and akua (deities) and their relationship with their kulaiwi (native land). The recognition of elements of nature and caring for the environment are critical to their faith because ancestral spirits and deities live in nature. Thus, all people, places, plants, and animals have mana. The term mana is loosely translated as spiritual power. Prayer, chanting, hula, and other religious protocol produce mana. [Davis Decl. at ~~ 710; Kane Decl. at ~~ 6-7; Tengan Decl. at ~~ 8-10. 3 ] At the hearing, Spiritual Advisor Kaiana Haili testified that the Native
3 Dr. Tengan is "a practitioner and a scholar of Native Hawaiian cultural and religious practices." [Tengan Decl. at ~ 3.] He is fluent in the Hawaiian language and has a Ph.D. from the University of Hawai'i at Manoa, Department of Anthropology. He is also a professor of ethnic studies and anthropology. His academic career is focused upon the study of Native Hawaiian culture and religion. [Id. at ~~ 3-6.]
9

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 10 of 72 PageID #: 3597
Hawaiian religion is more of a spirituality that comes out of the native Hawaiians' commune with the environment. It is familialbased and the components of it vary from family to family and from one geographic area to another. Thus, an object, such as a kukui nut, may be sacred to one practitioner, but not to another.
Dr. Tengan states that Native Hawaiian religion practitioners may possess small objects that represent and manifest the mana of 'aumakua and akua and ancestors. They use the items in rituals and protocols of the faith. A kupuna, kahu, or kumu, (respected elders or teachers) may give the practitioner the object to transmit and perpetuate mana. [Tengan Decl. at ~~ 18, 21-22.] The object can be a personal item, "kept exclusively by the practitioner at all times." [Id. at ~ 23.] A kukui nut and a turtle-shaped object are examples of such sacred objects. The kukui nut represents enlightenment and knowledge, and is also a manifestation of the deity Lono. A turtle symbolizes the deity Kanaloa and represents an 'aumakua of some Native Hawaiian families. [Id. at ~~ 24-25.] According to Dr. Tengan, Native Hawaiian religion practitioners who are denied possession of their sacred objects suffer spiritual injuries, and such injuries are exacerbated when the practitioners, such as the Out-of-State Inmates, are separated from their land, culture, and family. [Id. at ~~ 29-30.]
10

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 11 of 72 PageID #: 3598
D. Argument The Moving Plaintiffs argue that the deprivation of
their prayer objects violates their rights under the RLUIPA, as well as their rights to the free exercise of their religion and to equal protection under the United states Constitution and under the Hawai'i State Constitution. [Mem. in Supp. of Motion at 7.] The Moving Plaintiffs seek a preliminary injunction pursuant to Fed. R. Civ. P. 65(a) and (b). [Id. at 11.]
The Moving Plaintiffs first argue that they are likely to succeed on their RLUIPA claims. They emphasize that RLUIPA claims require a more stringent standard of review for prison regulations than the standard for constitutional claims set forth in Turner v. Safley, 482 U.S. 78, 89-90 (1987), and they argue that RLUIPA has an expanded concept of religious exercise than that in First Amendment case law. [Id. at 12-13.] Plaintiff Davis and Plaintiff Kane each established through his testimony that the possession of his respective prayer object is a religious exercise for purposes of the RLUIPA. Further, Dr. Tengan's declaration establishes that their possession is consistent with the religious and spiritual beliefs of the Native Hawaiian religion. The Moving Plaintiffs assert that they are suffering spiritual injury because of the deprivation of their prayer objects, and they argue that Defendants cannot prove that those objects pose any danger to the Moving Plaintiffs, other
11

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 12 of 72 PageID #: 3599
inmates, or prison staff. The Moving Plaintiffs emphasize that Defendants previously allowed them to retain the prayer objects, recognizing the objects' importance to their faith. The Moving Plaintiffs argue that they have established that their beliefs are sincerely held and that their retention and use of the prayer objects are religious beliefs. [Id. at 14-16.]
The Moving Plaintiffs next contend that Defendants' regulations place a substantial burden on their religious practice. They argue that Defendants' restriction of the Davis Prayer Object forces him to choose "to either engage in religious activities without his prayer object (and thus preclude their need to foster their mana) or accept the fact that he cannot engage in meaningful prayers and chanting practices while in his cell." [Id. at 17.] As to Plaintiff Kane, it is undisputed that his possession of the Kane Prayer Object was allowed under Defendants' regulations. The Moving Plaintiffs argue that the defilement of the Kane Prayer Object forces him to choose "to either engage in religious activities without his prayer object for fear that the Defendants may further damage it or accept the fact that his use of his pendant runs the risk of being damaged or defiled again without any recourse." [Id. at 18.] All of these options are unacceptable for the practice of the Moving Plaintiffs' faith, and this causes them spiritual injury. The Moving Plaintiffs therefore contend that Defendants' regulations
12

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 13 of 72 PageID #: 3600
place a substantial burden on their religious beliefs without a compelling justification. [Id. at 17-18.]
Defendants have the burden of establishing that the prohibition of the Davis Prayer Object and "their determination that KANE's turtle pendent is not an item of sufficient religious worth to be respected and handled with care" are supported by a compelling governmental interest. [Id. at 18.] The Moving Plaintiffs argue that Defendants cannot do so because the objects at issue do not pose a risk to security or safety. [Id. at 19.] The Moving Plaintiffs argue that the refusal to allow them to keep their prayer objects is evidence of "Defendants' systematic rejection of the legitimacy of the Native Hawaiian religion." [Id. at 20.] The Moving Plaintiffs further argue that there is no evidence that Defendants considered, and rejected as ineffective, less restrictive measures of dealing with the Moving Plaintiffs' prayer objects. The Moving Plaintiffs therefore argue that they are likely to succeed on the merits of their RLUIPA claims. [Id.]
As to their First Amendment claims, the Moving Plaintiffs argue that it is beyond dispute that their possession and use of their prayer objects are protected by the First Amendment. They also contend that it is beyond dispute that Defendants' regulations substantially burden the exercise of
13

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 14 of 72 PageID #: 3601
their religious beliefs. [Id. at 21-22.] The Moving Plaintiffs argue that all of the Turner factors weigh in their favor.
First, there is no legitimate penalogical interest that is rationally related to the regulations prohibiting the Moving Plaintiffs from possessing their prayer objects. The Moving Plaintiffs allege that Defendants use their own subjective determination of what is a religious item to determine what is contraband, and they systematically deny Native Hawaiian religion practitioners the right to practice their religion, either by deeming items contraband or by failing to handle allowable items with due care. According to the Moving Plaintiffs, Defendants "readily deprive" Native Hawaiian religion practitioners of their sacred objects because Defendants do not afford the Native Hawaiian religion the same recognition as other religions, such as Islam or Catholicism. There is no basis to distinguish between religions and therefore there is no basis for Defendants' regulations restricting the possession of objects sacred in the Native Hawaiian Religion. [Id. at 23-24.]
Second, the Moving Plaintiffs argue that Defendants' actions have sUbstantially burdened their practice of their religion. [Id. at 24-25.] As a result of Defendants' denial of Plaintiff Davis's prayer object and the defilement of Plaintiff Kane's prayer object, they are "denie[d] all means of [their] religious expression." [Id.]
14

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 15 of 72 PageID #: 3602
Third, the Moving Plaintiffs argue that Plaintiff Davis's possession of his prayer object will not impact the guards, inmates, or prison resources, as evidenced by the fact that Plaintiff Davis possessed the object for years without incident. [Id. at 25.] They also argue that there would be minimal impact if the Court requires Defendants to adopt "specific administrative protocol for the respectful treatment of Native Hawaiian prayer objects during a cell search. . to prevent future defilement of KANE (and other's) [sic] sacred objects." [Id. at 25-26.]
Fourth, the Moving Plaintiffs assert that Defendants allow inmates of other faiths to retain personal religious items and Defendants treat those items with proper care during cell searches. Defendants could apply the same standards to objects sacred to the Native Hawaiian religion at a de minimis cost to the prisons. [Id. at 26.] The Moving Plaintiffs therefore argue that they are likely to prevail on the merits of their First Amendment claims.
As to their Equal Protection claims, the Moving Plaintiffs argue that, because Defendants allow inmates of other faiths to retain personal religious items and because Defendants treat those items with proper care, "no other conclusion can be drawn except that Defendants have not established the difference between Defendants' treatment of DAVIS and KANE and their
15

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 16 of 72 PageID #: 3603
treatment of nther inmates is reasonably related to legitimate penalogical interests." [Id. at 28.J Thus, denying the Moving Plaintiffs equal religious liberties violates the Equal Protection Clause of the Fourteenth Amendment and the Moving Plaintiffs are likely to succeed on the merits of their Equal Protection claims. [Id.]
The Moving Plaintiffs argue that the same analyses apply to their state constitution free exercise and equal protection claims, and therefore they are likely to succeed on the merits of those claims. [Id. at 28-30.J
The Moving Plaintiffs assert that they will suffer irreparable injury in the absence of a preliminary injunction because they are being deprived of a central tenet of their religion, causing them to suffer a continual and irreparable spiritual injury. [Id. at 30-31.J Further, they argue that the balance of hardships tips in their favor. Defendants will not suffer any substantial hardship if the Court orders them to provide the Moving Plaintiffs access to their prayer items, as evidenced by the fact that the Moving Plaintiffs possessed the items for years without incident. Further, Defendants already have a protocol in place for the handling of sacred items of other religions and that protocol can be applied to Native Hawaiian sacred items as well. [Id. at 31-32.]
16

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 17 of 72 PageID #: 3604
As to the last preliminary injunction requirement, the Moving Plaintiffs argue that granting the Motion is in the public's interest. The public has a strong interest in protecting constitutional rights and rights under federal law. Further, 42 U.S.C. § 1006 and article XII, section 7 of the state constitution recognize Native Hawaiians' right to practice their religion. [Id. at 34.]
The Moving Plaintiffs argue that, pursuant to 18 U.S.C. § 3626(a) (1) and (2), the relief requested in the Motion "is narrowly tailored to restore DAVIS and KANE's religious rights to the status quo which permitted them access to personal sacred items in their cell[,]" [id. at 32-33,] and is the least intrusive means to correct the violations. The Moving Plaintiffs therefore contend that the requested relief is appropriate under the circumstances of this case. [Id. at 33-34.]
Finally, the Moving Plaintiffs argue that a security bond pursuant to Rule 65(c) is not necessary. This Court should exercise its discretion and waive the requirement of a bond because the relief requested will not pose unnecessary financial risks on Defendants. [Id. at 36-37.] II. Defendants' Opposition
In their memorandum in opposition, Defendants emphasize that Plaintiff Davis failed to disclose his prayer object on the Allowable Personal Property Inventory form ("Inventory Form")
17

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 18 of 72 PageID #: 3605
that he completed and signed on August 11, 2007 upon his transfer
to Saguaro. [Mem. in Opp. at 3, Aff. of Assistant Warden
Ben Griego ("Griego Aff."), Exh. E.] The Inventory Form states,
inter alia:
I acknowledge that I am responsible for all personal property recorded on my property form to include additions and deletions as well as property issued by the contracting agency and that the facility will only accept the responsibility for items inventoried and secured by facility staff.
I further understand that the property form, including any additions, is considered to be the complete accounting of personal property in my possession. As other items will be considered contraband and disposed of in accordance with the current procedures "Control of Contraband". I am subject to disciplinary action for possession of contraband.
[Griego Aff., Exh. E (emphasis added).] Assistant Warden Griego
states that, if a kukui nut had been found in Plaintiff Davis's
possession upon his transfer, "it would have been confiscated and
disposed of as contraband at that time." [Griego Aff. at ~ 37.]
Defendants emphasize that the First Amended Complaint
does not contain any allegations regarding how inmate cell
searches are conducted and what may be seized during those
searches. Further, the items at issue in the instant Motion are
not listed in the "sacred items" allegations in the First Amended
Complaint. [Mem. in Opp. at 3-4 (citing First Amended Complaint
at~49).]
18

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 19 of 72 PageID #: 3606
A. Background Regarding Native Hawaiian Religious Practices Saguaro, through the State Department of Public Safety
("DPS"), provides the services of Native Hawaiian spiritual advisor Kaiana Haili to registered Native Hawaiian inmates. Advisor Haili usually visits Saguaro four times a year to lead the opening and closing celebrations for the Makahiki season,4 and the summer and winter solstice celebrations. He also advises DPS and Saguaro on the provision of Native Hawaiian religious programming. [Griego Aff. at ~ 9.] In addition to these celebrations, Saguaro provides a celebratory meal to the entire inmate population in recognition of King Kamehameha Day in June and Price Kuhio Day in March. [Id. at ~ 18.] Saguaro provides practitioners of the Native Hawaiian religion with weekly religious services, a weekly ninety-minute hula class/service, a weekly ninety-minute Hawaiian ritual/ceremony class/service, and a weekly two-and-a-half hour Hawaiian language class. This is more programming than is provided to any other religious group at Saguaro. In addition, the assistants for the Native Hawaiian classes met for an hour once a month. Advisor Haili structured
4 "The Makahiki season is signaled by the rising of the Makali'i (Pleiades) Constellation in October-November of each year. The Makahiki season ends by the setting of Makali'i (Pleiades) Constellation in February-March of each year." [First Amended Complaint at ~ 47.] There are ceremonies, including customary and traditional activities, marking the beginning and the end of the Makahiki season. [Id. at ~ 48.]
19

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 20 of 72 PageID #: 3607
the language class, and he provides suggested readings and lesson plans to guide the participants in the classes/services. [Id. at ~~ 19-21.]
In late June/early July 2011, Assistant Warden Griego, after consulting with Advisor Haili, compiled a list of religious items that Native Hawaiian religion practitioners may keep in their cells. According to Assistant Warden Griego, Advisor Haili never stated that it was necessary to include an individual kukui nut on that list. In a May 2010 email, Advisor Haili stated that he was bringing ten kukui nut lei to Saguaro for use in the summer solstice ceremony and in group activities, and he requested that his "Assistants" be allowed to keep their lei in their cells in ziploc bags. The email explained the significance of the kukui nut, but Advisor Haili not include either a kukui nut or a kukui nut lei in his recommendations for the list of items that inmates are allowed to retain in their cells. [Griego Aff., Exh. A (email string dated May 27, 2010 between, inter alia, Advisor Haili and Assistant Warden Griego).] At the hearing, Advisor Haili testified that he intended to give the lei to the assistants to recognize their growth and achievement in a type of graduation ceremony. Advisor Haili did not testify as to whether Plaintiff Davis was one of the intended recipients of the lei. When Advisor Haili learned that the assistants would not be
20

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 21 of 72 PageID #: 3608
able to keep the lei in their cells, he brought other lei for communal use. Those lei are kept in the Saguaro chapel.
Ultimately, the warden of Saguaro approved the following items for retention by Native Hawaiian religion practitioners in the general inmate population ("Retention List"):
a. Lava Lava: a single rectangular cloth worn as a skirt; . b. Ti leaf lei: twisted and woven no longer than 30 inches[;] c. Hawaiian Sea Salt; 2-3 ounces. . to be stored in a small zip lock baggie[;] d. Coconut oil: approximately 2-3 ounces; e. Amulet. [Griego Aff. at ~ 25.] At the hearing, Assistant Warden Griego testified that the Retention List is memorialized in an email, but was not reduced to a form. He stated that he believes the Retention List was distributed to the unit managers and shift captains at Saguaro. Case Manager Blank testified that she keeps a copy of the Retention List in her office so that she can refer to it, but she also testified that she did not receive a copy of the list until March 2012. Red Rock also has a list of allowable property, and inmates are allowed to possess a medallion such as the Kane Prayer Object. [Mem. in Opp., Aff. of Carl Richey ("Richey Aff.") at ~~ 8-10, Exh. A (CCA policy re Inmate/Resident Property) . ]
21

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 22 of 72 PageID #: 3609
In addition to the items on the Retention List, Saguaro
retains the following items in its chapel for use during weekly
Native Hawaiian meetings and celebrations:
history books, CD's, DVDs, language books, seven (7) ~ gourds, four (4) gourd double, seven (7) ukuleles, twenty-three (23) malo/loin cloths, lele/alter tri pod, alter shelf, lono makua/staff, gourd with decorations, thirty-five (35) kiahei lei and muslin cloth (cape and necklace), hulu lei (feather lei), kukui lei (nut lei), two (2) pheasant pelts, two (2) uli uli (instrument), serving cups, two (2) lama, forty-eight (48) artificial anklet and bracelets, kiahei/muslin cloth, five pu/conch shells (instruments), two (2) puloulou/kapu sticks, four (feather) kahili, puone/nose flute, koko maoloha/net, five pa/wooden platters, ipuwai/water gourd, Konana (2 boards and 48 pieces), ulu mika/HI bowling (game), two (2) Lava Lava, Drum, and serving bowls.
[Griego Aff. at ~ 27.]
B. Cell Searches
In accordance with CCA policy, Saguaro and Red Rock
conduct frequent, unannounced searches of inmates' cells and
other areas of the facility to address and/or prevent the
presence of contraband, missing or stolen property, escapes, and
other disturbances. The searches are done in an orderly manner
and, when possible, the area is left the way it was found. The
staff are to respect inmates' personal property and are not to
carelessly discard, misplace, or break it. The inmate's presence
during the search is not required. [Griego Aff. at ~~ 4-8; Mem.
in Opp., Aff. of Warden Bruno Stole ("Stole Aff.") at ~~ 4-8.]
Saguaro and Red Rock conduct the searches "as often as necessary
22

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 23 of 72 PageID #: 3610
to promote the safety and security of the facility." [Griego Aff. at ~ 4; Stolc Aff. at ~ 4.] At the hearing, Assistant Warden Griego testified that, during each shift, three randomly chosen cells are searched in each "pod".
1. Confiscation of Davis Prayer Object Case Manager Sarah Blank testified at the hearing that she discovered the Davis Prayer Object during a search of Plaintiff Davis's cellon February 20, 2012. She testified that the pouch which the kukui nut was in also contained two sewing needles, as well as thread matching the thread around the kukui nut. The needles were made of blue plastic and were three to three-and-a-half inches long. Case Manager Blank testified inmates can be authorized to keep such needles for certain types of hobby craft. She checked Saguaro records and determined that Plaintiff Davis was not authorized to have the needles because his hobby craft had been terminated and his hobby craft supplies were supposed to be sent out of the facility. During his testimony, Assistant Warden Griego testified that the pouch was a concern because it could conceal other items, including contraband. Case Manager Blank testified that she conducted three searches of Plaintiff Davis's cell within a couple of months. The February 20, 2012 search was the first. In the second search, she found another pouch with a kukui nut. She confirmed
23

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 24 of 72 PageID #: 3611
that the original kukui nut and pouch she confiscated in the February 20, 2012 search had been sent out of Saguaro, and thus this was another kukui nut in a similar style of bag. Plaintiff Davis was advised of the consequences he could face if he did not turn the second kukui nut and pouch in to prison officials, but Plaintiff Davis did not turn them in. Case Manager Blank conducted a third search to try to find the items, but she could not find them.
According to Assistant Warden Griego, the February 20, 2012 search was the first time Saguaro found a kukui nut in the possession of Plaintiff Davis or any other inmate. Case Manager Blank consulted with Assistant Warden Griego to determine if an inmate could keep such an item in his cell. Assistant Warden Griego determined that it should be confiscated as contraband because it was not on the list of items that Native Hawaiian religion practitioners could retain in their cells. [Griego Aff. at ~~ 31-32.] Defendants emphasize that neither Assistant Warden Griego nor any other Saguaro official was privy to the meeting between Kumu Lake and Plaintiff Davis at Diamondback, and they emphasize that Plaintiff Davis did not disclose the possession of the kukui nut when he was transferred to Saguaro. Thus, Defendants assert that Plaintiff Davis affirmatively misled Saguaro officials and he consented to having the item treated as contraband. [Mem. in Opp. at 8.] At the hearing, Assistant
24

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 25 of 72 PageID #: 3612
Warden Griego testified that Advisor Haili never opined that having either a single kukui nut or a kukui nut in the manner in which Plaintiff Davis kept it was a requirement for a Native Hawaiian religion practitioner.
2. Alleged Damage to Kane Prayer Object Defendants acknowledge that Plaintiff Kane was allowed to keep his turtle pendant in his cell. [Id. at 9.] Although Plaintiff Kane alleges that CCA employees damaged the item during a cell search, Defendants deny that any CCA employee took or damaged Plaintiff Kane's items. Defendants emphasize that CCA employees are required to handle inmates' property with respect and to leave the cell in the condition in which they found it. [Id. (citing Richey Aff. at ~~ 4-6, 44, 50).] Defendants argue that, by filing an Informal Resolution form, and then a grievance regarding the alleged loss of property, Plaintiff Kane "short-circuited" the exhaustion process and deprived Red Rock of the opportunity to respond to his allegations. [Id.] Plaintiff Kane should have filed a property loss claim before initiating a grievance. His grievance was therefore premature and was denied. [Richey Aff. at ~~ 45-53, Exh. D (Plaintiff Kane's March 28, 2012 grievance).] Defendants emphasize that the CCA employees who allegedly damaged the Kane Prayer Object are not parties to this case, and the First Amended Complaint does not allege that CCA failed to conduct cell
25

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 26 of 72 PageID #: 3613
searches in a respectful and/or reasonable manner, nor does it allege that Defendants failed to adopt protocols for cell searches addressing religious items that CCA employees may encounter during those searches. [Mem. in Opp. at 9-10.]
C. Argument Defendants note that the Motion does not merely seek to
maintain the status quo, it seeks to require Defendants to immediately change their policies and/or protocols. Defendants argue that such mandatory relief requires this Court to impose a more stringent standard. [Id. at 12.]
Defendants also argue that this Court lacks jurisdiction to grant a preliminary injunction on claims that are not in the First Amended Complaint. Although the First Amended Complaint addresses the prohibition of certain items in inmate cells, neither kukui nuts nor turtle pendants/amulets are listed among the sacred items described in the First Amended Complaint, and the First Amended Complaint does not allege any claims based on destruction of religious property. [Id. at 12-13.] Defendants argue that, because the relief sought in the Motion is beyond the claims in this action, Plaintiff's Rule 65 motion is effectively a motion for permanent relief. [Id. at 14-15.]
Defendants next argue that Plaintiff Kane failed to exhaust his administrative remedies through the inmate grievance procedure. Pursuant to Policy 14-6, if an inmate believes that
26

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 27 of 72 PageID #: 3614
his property has been lost or damaged due to the negligence of a Red Rock employee, he must submit to the Property Officer, within seven days of the incident, page one of the 14-60 Lost/Damaged Stolen Property Claim form ("14-60 Form"). Policy 14-6 describes the investigation process, the procedure for obtaining compensation for sustained claims, and the appeal and grievance process if the claim is denied. [Id. at 15-16 (citing Richey Aff. at ~~ 3, 11-17).] The Richey Affidavit also describes the grievance process, including the Request for Service, Informal Resolution, and Formal Grievance. [Richey Aff. at ~~ 18-43.] Plaintiff Kane, however, submitted an incomplete 14-60 Form, and filed a Formal Grievance before the warden or the administrative duty officer made a final recommendation. Richey asserts that, had Plaintiff Kane properly completed the 14-60 Form and proven that Red Rock staff was at fault for damaging his property, Plaintiff Kane would have been compensated for his loss. [Id. at ~~ 48-49, 52.] Defendants argue that the failure to exhaust his available administrative remedies precludes Plaintiff Kane from seeking injunctive relief. [Mem. in Opp. at 17.]
Defendants next argue that the Moving Plaintiffs are not likely to succeed on the merits because the Moving Plaintiffs' claims ask this Court to interfere with day-to-day prison management. Defendants argue that, although RLUIPA imposes a stricter standard than Turner, Congress did not intend
27

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 28 of 72 PageID #: 3615
RLUIPA to undermine prison operations. RLUIPA still requires courts to give due deference to prison administrators regarding regulations and procedures necessary to maintain order, security, and discipline, consistent with the prisons' limited resources. [Id. at 17-19.]
Defendants argue that Plaintiff Kane cannot prevail on his claims because the merely negligent damage to the Kane Prayer Object cannot support liability under RLUIPA or § 1983. Further, if Red Rock employees did destroy the Kane Prayer Object, it would be a violation of CCA policy and CCA would provide financial restitution. Thus, Plaintiff Kane cannot establish that the alleged violation of his rights was the result of government policy or custom. Defendants also emphasize that the employees who allegedly damaged the Kane Prayer Object are not parties to this action, and this Court lacks jurisdiction to issue a preliminary injunction against non-parties. Although the Moving Plaintiffs couch their request as seeking a preliminary injunction requiring Defendants to adopt a policy requiring respectful and careful handling of property during cell searches, such a policy already exists and there is no live controversy. [Id. at 20-22.]
As to Plaintiff Davis, Defendants argue that the dispossession of his kukui nut was not a substantial burden on the exercise of his religion. Defendants emphasize that the
28

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 29 of 72 PageID #: 3616
kukui nut is not on the list of approved items for Native Hawaiian religion practitioners. Defendants argue that Plaintiff Davis does not need his kukui nut to exercise his religious beliefs, and there are other Native Hawaiian artifacts, including kukui nut lei, available to him in the prison chapel. Defendants argue that the failure to include the kukui nut in the First Amended Complaint, and Plaintiff Davis's failure to disclose it on the Inventory Form demonstrate that the absence of the kukui nut is not a substantial burden because it does not force him to act contrary to his religious beliefs. [Id. at 22-25.]
Defendants emphasize that prison security is a compelling governmental interest for purposes of the RLUIPA and that, by failing to disclose the kukui nut on the Inventory Form, Plaintiff Davis agreed that it was contraband. Defendants argue that the kukui nut has not been determined to be a legitimate object needed for individual worship, as opposed to group ceremonial activities. [Id. at 25 (citing Griego Aff. at ~~ 22, 37-38, Exh. A).] Defendants argue that there is a compelling interest in maintaining security by precluding the possession of items not on the Retention List, and Defendants note that no other inmate who is a Native Hawaiian religion practitioner has ever demanded to possess a kukui nut. Further, Advisor Haili noted in his 2010 email that kukui nuts cannot be touched by other people. Defendants argue that this would pose a risk of
29

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 30 of 72 PageID #: 3617
violence if inmates were allowed to possess kukui nuts and cell mates or CCA employees handle them. [Id. at 26 (citing Griego Aff., Exh. A).]
Defendants also argue that the exclusion of kukui nuts from the Retention List is "the least restrictive means to achieve the compelling interest of balancing religious needs with the exclusion of contraband." [Id.] Defendants emphasize that a kukui nut is comparable to a candle because it has flammable oils and there is a potential for violence if other inmates handle an inmate's kukui nut. Defendants also point out that kukui nut lei are available in the prison chapel for use during worship in a supervised environment. Defendants assert that the Moving Plaintiffs have not established that individual practitioners of the Native Hawaiian religion need to retain kukui nuts in their cells. [Id. at 26-27.]
Defendants argue that neither Plaintiff Davis nor Plaintiff Kane is likely to prevail on his free exercise claims. Plaintiff Kane will not prevail because either this Court lacks jurisdiction or he has alleged a negligence-based tort that does not implicate religious liberties. Plaintiff Davis will not prevail because Saguaro officials have a legitimate, penalogical interest in controlling contraband, avoiding fire hazards, and limiting the amount of property inmates may possess in their cells. Defendants contend that the policy on kukui nuts is
30

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 31 of 72 PageID #: 3618
reasonably related to these interests. Defendants emphasize that Plaintiff Davis can worship through the items that he is allowed to keep in his cell and by participating in the regular programs offered at Saguaro. In light of Plaintiff Davis's failure to provide notice of his possession of the kukui nut and the fact that Advisor Haili never demanded that inmates be allowed to possess kukui nuts in their cells, Defendants' ban was reasonable and, if necessary, Defendants can address problems with kukui nuts one step at a time. Defendants also contend that Plaintiff Davis cannot prevail on his free exercise claims because Saguaro has been extremely accommodating to the practitioners of the Native Hawaiian religion, even providing more programs than are available to practitioners of other religions. [Id. at 27-30.]
Defendants next argue that neither Plaintiff Davis nor Plaintiff Kane is likely to prevail on his equal protection claims. First, the Moving Plaintiffs rely only on their understanding of what inmate practitioners of other religions are entitled to. Second, prisons need not provide the same liberties to all religions. Defendants also argue that they do treat religions equally, as evidenced by the fact that a Native Hawaiian religion inmate may keep an amulet, just as a Catholic inmate may keep a crucifix or a Jewish inmate may keep a Star of David. Defendants also argue that they treat all religious objects with respect during cell searches. Defendants have made
31

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 32 of 72 PageID #: 3619
numerous efforts to provide Native Hawaiian religion practitioners with religious opportunities, as evidenced by the number of items that they may keep in their cells, the number of items available in the chapel, and the amount of programs/services offered. Defendants therefore contend that there is no disparate treatment, and this Court should deny the preliminary injunction. [Id. at 30-32.]
Defendants further argue that neither Plaintiff Davis nor Plaintiff Kane is likely to suffer irreparable harm. The fact that the Kane Prayer Object was broken by an as yet unproven person does not prevent Plaintiff Kane from acquiring another one. He also had the opportunity to seek compensation from the offending party, if he could prove who was responsible. Thus, his injury is not irreparable. As to Plaintiff Davis, Defendants emphasize that he did not acquire the Davis Prayer Object until 2006, and that he failed to disclose it upon his transfer to Saguaro in 2007. His failure to disclose it, Plaintiffs' failure to include it in the First Amended Complaint, and the fact that Advisor Haili never insisted that inmates be allowed to retain kukui nuts in their cells all undermine Plaintiff Davis's claim of irreparable injury, particularly in light of the religious items and programs that he does have access to. [Id. at 33-34.]
Finally, Defendants argue that the public interest weighs against a preliminary injunction. The public's interest
32

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 33 of 72 PageID #: 3620
in the safe, secure, and orderly administration of prisons outweighs the Moving Plaintiffs' interest in a preliminary injunction. Insofar as only the inmates at Saguaro and Red Rock would be affected by a preliminary injunction, Defendants acknowledge that this factor is not determinative. Defendants, however, argue that the Court should deny relief to Plaintiff Davis based on unclean hands because he concealed the kukui nut for five years. [Id. 35-36.] III. Reply
In their reply, the Moving Plaintiffs argue that this Court should grant the Motion as to Plaintiff Kane because Defendants admit that he is allowed to possess the Kane Prayer Object and that it should be replaced. [Reply at 1.]
The Moving Plaintiffs reiterate that they are likely to succeed on the merits of their RLUIPA claim because they have demonstrated that Defendants substantially burdened their "religious practice of retaining personal sacred objects" and that this a part of the Native Hawaiian religion. [Id. at 4.] The Moving Plaintiffs emphasize that Assistant Warden Griego was aware of the religious significance of the kukui nut. [Id. at 67 (discussing Griego Aff., Exh. A).] They also argue that they have demonstrated Defendants' "pattern and practice of confiscating these items or defiling them when conducting cell searches." [Id. at 5.] The Moving Plaintiffs argue that,
33

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 34 of 72 PageID #: 3621
although Assistant Warden Griego states that he understands kukui nuts may be flammable, there is no evidence that Plaintiff Davis's possession of the item was an actual or threatened security risk when he possessed it at Diamondback or at Saguaro before it was confiscated. Further, Defendants could have employed other, less restrictive alternatives, such as placing the Davis Prayer Object in the chaplain's custody, but there is no evidence that Defendants considered such options. [Id. at 56.J At the hearing, the Moving Plaintiffs also argued that Defendants could allow Plaintiff Davis to keep the kukui nut in a clear ziploc bag, which would prevent him from concealing contraband and would allow Saguaro officials to inspect it without touching it.
The Moving Plaintiffs reiterate that they are likely to succeed on the merits of their free exercise claims. They argue that Defendants' position that Plaintiff Davis is free to use communal sacred objects in lieu of the Davis Prayer Object ignores the mana that Kumu Lake imparted to him through the item. [Id. at 7-8.J Dr. Tengan submitted additional testimony that personal sacred objects are not interchangeable with communal ones, but he acknowledges that communal sacred objects also have mana. Further, when a kahu or kupuna gives someone a sacred object and other people touch it, the mana transmitted with the object diminishes. If someone takes the object, the mana is
34

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 35 of 72 PageID #: 3622
stolen. According to Dr. Tengan, a Native Hawaiian religion practitioner could not properly exercise his religious beliefs by using a communal object instead of a personal one. Further, when a Native Hawaiian religion practitioner uses a sacred object, the practitioner's mana, and the mana of the 'aumakua and akua that the practitioner invokes when he uses the object, also accrues to the object. Thus, Dr. Tengan opines that the spiritual injury suffered from the loss of a personal sacred object cannot be remedied through the use of communal objects. [Reply, Decl. of Ty Preston Kawika Tengan ("Suppl. Tengan Decl.") at ~~ 4-5, 7-8.] In particular, Kumu Lake was the kahuna nui (high priest) of the largest heiau in Hawai'i, and Kumu Lake has passed away since he gave Plaintiff Davis the Davis Prayer Object. Thus, it is irreplaceable. [Id. at ~ 6.]
Plaintiff Davis also states that, on or about March 13, 2012, Case Manager Blank and Unit Manager Cook confiscated his malo (loincloth) and his kihei (cape) from him. He uses these articles of clothing during Native Hawaiian rituals and ceremonies. Pursuant to Saguaro's policy regarding confiscated items, Plaintiff Davis chose to donate the items to a charity of the facility's choice. [Reply, Suppl. Decl. of Richard Kapela Davis ("Suppl. Davis Decl.") at ~~ 20, 24.] The Moving Plaintiffs argue Defendants are aware of the items' religious significance, but they still confiscate such items and infringe
35

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 36 of 72 PageID #: 3623
upon the constitutional rights of inmates who are Native Hawaiian religion practitioners. The Moving Plaintiffs argue that confiscating the items and forcing the inmates to either mail them out of the facility or donate them to charity is not the least restrictive means of achieving security. [Reply at 8-9.]
The Moving Plaintiffs argue that Plaintiff Davis will prevail on his equal protection claim because Defendants' policy allowing possession of one religious medallion or amulet only accommodates religions where the personal sacred object is a medallion or amulet. The policy does not accommodate the Davis Prayer Object, and there is no principled means to distinguish between the Davis Prayer Object and religious medallions or amulets. [Id. at 9.]
The Moving Plaintiffs argue that the irreparable harm to their constitutional rights weighs sharply in favor of granting the Motion. [Id. at 10.] Neither of the Moving Plaintiffs can replace his prayer object. Plaintiff Kane's father made the Kane Prayer Object to impart mana to his son. Plaintiff Kane's father, however, is no longer able to make such items. Plaintiff Kane cannot order a replacement from a vendor, but he acknowledges that another kupuna or kumu could decide upon an amulet for him and make it. [Reply, Suppl. Decl. of James Kane, III (nSuppl. Kane Decl.") at ~~ 6-7.]
36

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 37 of 72 PageID #: 3624
The Moving Plaintiffs reiterate that granting a preliminary injunction would not prejudice Defendants. They acknowledge Defendants' interest in regulating such items through administrative processes, and they emphasize that both of them followed the administrative procedures and went through the grievance process to report their losses. Defendants only complain that Plaintiff Kane followed one of two processes. The Moving Plaintiffs, however, argue that it was reasonable for Plaintiff Kane to forego the property destruction process because the Kane Prayer Object is not just a piece of property. Thus, the Moving Plaintiffs contend that the failure to use that process is not fatal to the Motion. The Moving Plaintiffs argue that Defendants have not identified any interest serious enough to outweigh the strong public interest in ensuring that native peoples are able to practice their religion, even while incarcerated. [Reply at 11-13.]
The Moving Plaintiffs reiterate that Plaintiff Davis kept the Davis Prayer Object for years without incident, and they argue that he never tried to conceal it. [Id. at 12.] According to Plaintiff Davis, it was not on the Inventory Form because he did not put it in the box of his belongings that was sent to Saguaro ahead of him. Instead, he kept it in a bag with some other items that he could not part with for two weeks. The bag was taken from him before he boarded the flight to Arizona. A
37

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 38 of 72 PageID #: 3625
number of days after his arrival at Saguaro, a nurse in the medical unit returned the bag, with the Davis Prayer Object but without his medication, to Plaintiff Davis. Plaintiff Davis asked for a religious inventory sheet to report the Davis Prayer Object, but he was informed that there was no such form. The Saguaro chaplain told him that he did not need to declare the object on a form. Plaintiff Davis never tried to conceal the object and, although his cell had been searched prior to February 20, 2012, the object had never been confiscated. [Suppl. Davis Decl. at ~~ 9-15.] Thus, the Moving Plaintiffs argue that Plaintiff Davis does not have unclean hands. [Reply at 12.]
The Moving Plaintiffs argue that this Court does have jurisdiction to grant the Motion because there is a close nexus between the allegations regarding sacred objects in the First Amended Complaint and the conduct at issue in the Motion. They emphasize that the First Amended Complaint seeks permanent injunctive relief guaranteeing access to sacred objects. Thus, they argue that: the relief sought in the Motion is the same type of relief sought in the First Amended Complaint; the Motion involves the same parties; and the Motion relies on the same constitutional provisions and statutes. The Moving Plaintiffs also argue that, whether the Court characterizes the relief
38

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 39 of 72 PageID #: 3626
sought in the Motion as mandatory or prohibitory, they have met
their burden of proof. [Id. at 14-16.]
Finally, the Moving Plaintiffs argue that a preliminary
injunction against Defendants also binds their "'officers,
agents, servants, employees, and attorneys,' even if they are not
named parties[.]" [Id. at 16 (quoting Fed. R. Civ. P.
65 (d) (2) (B)) .] Thus, a preliminary injunction against CCA would
bind the individual CCA employees who conduct cell searches or
who otherwise come into contact with inmates' sacred objects.
[Id. ]
STANDARD
This Court has recognized that:
In general, the standard for a temporary restraining order or a preliminary injunction is as follows:
"[I]njunctive relief is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). The standard for granting a preliminary injunction and the standard for granting a temporary restraining order are identical. See Haw. Cnty. Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); Fed. R. Civ. P. 65.
Sakala v. BAC Home Loans Servicing, LP, CV. No. 10-00578 DAE-LEK, 2011 WL 719482, at *4 (D. Hawai'i Feb. 22, 2011) (alteration in original) .
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
39

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 40 of 72 PageID #: 3627
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc.,
U.S. ----, 129 S. ct. 365, 374, 172 L. Ed. 2d 249 (2008)) (explaining that, "[t]o the extent that [the Ninth Circuit's] cases have suggested a lesser standard, they are no longer controlling, or even viable" (footnote omitted)); see also Winter, 129 S. Ct. at 374-76 (holding that, even where a likelihood of success on the merits is established, a mere "possibility" of irreparable injury is insufficient to warrant preliminary injunctive relief, because "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court's] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief").
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123, 1128-29 (D. Hawai'i 2010) (footnote and some citations omitted) (alterations in original). The Ninth Circuit has held that its "serious questions" version of the sliding scale test for preliminary injunctions survives Winter to the extent that, a court may grant a preliminary injunction where the plaintiff (1) "demonstrates. . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor[,]" and (2) satisfies the other Winter factors, likelihood of irreparable injury and that the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (citation and block quote format omitted) (some alterations in original) .
40

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 41 of 72 PageID #: 3628
Aliah K. ex rel. Loretta M. v. Haw., Dep't of Educ., 788 F. Supp.
2d 1176, 1186-87 (D. Hawai'i 2011) (footnote omitted).5
Specifically regarding requests for preliminary
injunctions addressing prison conditions, 18 U.S.C. § 3626(a) (2)
provides:
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity
5 The Ninth Circuit has stated the sliding scale test as follows:
"A preliminary injunction is appropriate when a plaintiff demonstrates 'either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor.'" Lands Council v. Martin (Lands Council
n), 479 F.3d 636, 639 (9th Cir. 2007) (quoting
Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). These two options represent extremes on a single continuum: "the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor." Id.
Lands Council v. McNair, 537 F.3d 981, 987 (9th. Cir. 2008) (en banc) (some citations and internal quotation marks omitted) (alteration in Lands Council) .
41

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 42 of 72 PageID #: 3629
set out in paragraph (1) (B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a) (1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.
DISCUSSION I. Jurisdiction
At the outset, this Court must address Defendants' argument that this Court does not have jurisdiction to rule upon the Moving Plaintiffs' Motion because it addresses items and seeks relief that Plaintiffs did not plead in the First Amended Complaint. "A preliminary injunction may be granted only when the 'intermediate relief [is] of the same character as that which may be granted finally.'" Parmer v. Alvarez, Civil No. 09-0412 DMS (NLS), 2009 WL 4544132, at *2 (S.D. Cal. Dec. 1, 2009) (quoting De Beers Consolo Mines V. U.S., 325 U.S. 212, 220, 65 S. Ct. 1130, 89 L. Ed. 1566 (1945)) (citing Johnson V. Couturier, 572 F.3d 1067, 1084 (9th Cir. 2009) (noting that injunction was inappropriate in De Beers because the court lacked jurisdiction); Kaimowitz V. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (court should not issue an injunction if injunction deals with a matter lying wholly outside the issues in the underlying action); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (to obtain injunctive relief, the party "must necessarily establish a
42

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 43 of 72 PageID #: 3630
relationship between the injury claimed in the party's motion and
the conduct asserted in the complaint.")).
Although the First Amended Complaint does not
specifically mention the Davis Prayer Object or the Kane Prayer
Object, the First Amended Complaint requests, inter alia, the
following relief:
11. Order Defendants to allow Plaintiffs and all other class members to exercise their Native Hawaiian religion by using and maintaining traditional and customary objects and items that are essential to expressing their religious belief and faith as requested by Plaintiffs[; and]
13. Order Defendants to develop a comprehensive plan and promulgate official policy guidelines on how Native Hawaiians who have been convicted and sentenced under the laws of the State of Hawaii can practice their religion on a regular and equal basis with all other religions represented at correctional facilities.
[First Amended Complaint at pg. 125.] Thus, the relief that the
Moving Plaintiffs seek in the instant Motion is of the same
character as some of the relief that Plaintiffs ultimately seek
in this action. This Court therefore rejects Defendants'
argument that this Court lacks jurisdiction to rule on the Motion
because the Motion addresses items and seeks relief beyond the
scope of the First Amended Complaint.
II. Exhaustion
Before addressing the merits of the Moving Plaintiffs'
request for a preliminary injunction, this Court must address
43

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 44 of 72 PageID #: 3631
Defendants' argument that Plaintiff Kane's request for preliminary injunctive relief is barred because he failed to exhaust his administrative remedies. The Moving Plaintiffs argue that they both went through the prison grievance process to give their respective prisons the opportunity to address the confiscation/destruction of their respective prayer objects. [Reply at 11-12.] Although the Moving Plaintiffs have not presented any evidence supporting their argument that Plaintiff Davis exhausted his administrative remedies, "failure to exhaust is an affirmative defense" under the Prison Litigation Reform Act of 1996 ("PLRA"). See Jones v. Bock, 549 U.S. 199, 216 (2007). Insofar as Defendants have not argued that Plaintiff Davis's request for preliminary injunctive relief is barred because he failed to exhaust his administrative remedies, this Court need not address the exhaustion issue as to Plaintiff Davis.
The PLRA provides that: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The United States Supreme Court has held that exhaustion is mandatory, "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001) (footnote and citation omitted). The Supreme
44

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 45 of 72 PageID #: 3632

Court has also recognized that:

Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper eXhaustion of administrative remedies, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits) .

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (some emphases in

Woodford) (citation and quotation marks omitted).

Carl Richey, Red Rock's Grievance Coordinator and

Property Officer, states that Red Rock's Policy 14-6, titled

"Inmate/Resident Property" ("Policy 14-6"), "governs property,

both personal and facility-issued, that inmates may retain in

their possession.

. and sets forth the claim procedure

inmates must follow in the event that they believe personal

property has been lost or damaged." [Richey Aff. at ~~ 2, 8,

Exh. 3-A (Policy 14-6).J Section N.2 of Policy 14-6 governs

claims regarding allowable property that has been lost/damaged.

It states, in pertinent part:

Property that has been lost or damaged due to CCA employee negligence will be eligible for claim investigation.

a. If an inmate/resident wishes to request an investigation of property that has been lost or damaged due to CCA employee negligence, the inmate/resident must complete Page 1 of the 14-60 Lost/Damaged/Stolen Property Claim and forward to the Property Officer or

45

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 46 of 72 PageID #: 3633
designee. All claims must be submitted within seven (7) calendar days of the incident.
[Richey Aff., Exh. 3-A at 17.]
Pursuant to Policy 14-6, the Property Officer or
designee processes a claim and forwards it to the department head
who is assigned to investigate. That person must complete the
investigation within fifteen days after the submission of the
claim. [Id. at 18.] Further, Policy 14-6, Section N.4 states,
in pertinent part:
c. Once the investigation has been completed, Page 1 and Page 2 of the 14-6D and any corresponding paperwork will be returned to the Property Officer or designee for logging.
d. If the claim proves valid and reimbursement/replacement is recommended, it will be forwarded to the Warden/Administrator or Administrative Duty Officer who will be the final authority in the award of any compensation.
e. The Warden/Administrator or Administrative Duty Officer shall review and approve/ disapprove the recommendation within seven (7) calendar days of receipt.
f. In the event a claim does not prove valid and replacement/reimbursement is denied the inmate/resident may submit a 14-6 E Denied Property Claim Appeal to the Warden/ Administrator.
[Id.] The Warden/Administrator's decision on the Denied Property
Claim Appeal "is final and concludes the claim process, unless
otherwise specified in the facility management contract." [Id.
at 20, § N.7.d.] If the inmate is not satisfied with the outcome
46

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 47 of 72 PageID #: 3634
of the property claim process, he may file a grievance regarding the Warden/Administrator's decision. [Richey Aff. at ~ 17.]
Red Rock Policy 14-5, applicable to Hawai'i inmates only, governs the grievance process ("Policy 14-5"). [Id. at ~ 18, Exh. 3-C at 1.] Property issues are not directly grievable and "must be addressed in accordance with property procedures in place at the facility[.]" [Richey Aff., Exh. 3-C at 4.] Policy 14-5, section K states, inter alia: "With the exception of emergency grievances, inmates/residents are required to utilize the informal resolution process concerning questions, disputes, or complaints prior to the submission of a formal grievance." [Id. at5.] If the inmate is not satisfied with the response to the informal grievance, he may submit a formal grievance to the Grievance Officer within five days. [Id. at 6, § K.3.c.] Section P.1 states, in pertinent part:
If an inmate/resident is not satisfied with the decision of a formal or emergency grievance, the inmate/resident may complete the appeal section of the 14-5B and resubmit the grievance. Inmates/residents are entitled to appeal all adverse decisions, even those made on a purely procedural basis including but not limited to the expiration of a time limit. [Id. at 9.] "Barring extraordinary circumstances, a grievance will be considered settled if the decision at any step is not appealed by the inmate/resident within the given time limit." [Id., § P.3.]
47

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 48 of 72 PageID #: 3635
Plaintiff Kane submitted an Informal Resolution form along with page 1 of the 14-6D Form. The Informal Resolution form is dated February 17, 2012 and states that the staff received it on February 21, 2012. Page 1 of 14-6D Form cites to the Informal Grievance form for the explanation of the circumstances surrounding the lost/damaged/or stolen property. [Richey Aff., Exh. 3-D. 6] Plaintiff Kane did not obtain a final recommendation from the Warden or Administrative Duty Officer on his damaged property claim. [Richey Aff. at ~ 48.] The Red Rock staff responded to Plaintiff Kane's informal grievance on March 12, 2012. The response states that the commander who searched Plaintiff Kane's cell stated that neither he nor his team confiscated the items identified in the Information Resolution form. 7 [Id., Exh. 3-D, Informal Resolution form at 2.]
On March 28, 2012, Plaintiff Kane submitted a Formal Grievance. [Richey Aff. at ~ 49, Exh. 3-D.] On March 29, 2012, Richey informed Plaintiff Kane that his Formal Grievance was denied and that the staff denied removing the Kane Prayer Object during the cell search. Richey instructed Plaintiff Kane "he
6 Exhibit 3-D contains multiple documents, but the exhibit is not consecutively paginated.
7 Plaintiff Kane alleged that, in addition to the Kane Prayer Object, two other items were lost or damaged. [Richey Aff., Exh. 3-D, Form 14-6Dat 1.] Those items are not at issue in the instant Motion.
48

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 49 of 72 PageID #: 3636
needed to first submit a property claim and that his attempt to bypass the process was not acceptable." [Id. at ~ 50.]
Thus, Plaintiff Kane failed to complete the Policy 146 process before initiating the grievance process pursuant to Policy 14-5. The Moving Plaintiffs argue that Plaintiff Kane's failure to follow the Policy 14-6 process is excusable because the destruction of the Kane Prayer Object "was not like losing a piece of jewelry or an electronic device." [Reply at 12.] The Court rejects this argument because Policy 14-6 expressly governs Plaintiff Kane's possession of his religious amulet. [Richey Aff., Exh. 3-A at 7 § A.5.b ("Inmates/residents shall be allowed to possess religious medallions, rosaries, etc. upon approval of the Chief of Security, in coordination with the Chaplain.").] Thus, Plaintiff Kane was required to follow the Policy 14-6 process before initiating the grievance process, and Plaintiff Kane failed to do so.
Further, there is no evidence that Plaintiff appealed the denial of his Formal Grievance, as allowed pursuant to section P.1 of Policy 14-5. The Court therefore finds that Plaintiff failed to properly complete all steps of the administrative remedies which Red Rock provided. See Woodford, 548 U.S. at 90.
This Court acknowledges that some district courts within the Ninth Circuit have ruled that one inmate's exhaustion
49

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 50 of 72 PageID #: 3637
"with respect to claim [sic] at issue at a preliminary injunction hearing regarding an inmates' [sic] class action against prison officials regarding prison conditions was sufficient to satisfy exhaustion requirement of PLRA for other class members." Thomas v. Schwarzenegger, No. 2:07-CV-02310 ODW, 2011 WL 4501002, at *2 (E.D. Cal. Sept. 27, 2011). Even assuming, arguendo, that this rule could apply to this case, it would not excuse Plaintiff Kane's failure to exhaust his administrative remedies as to the destruction of his prayer object. The First Amended Complaint addresses prison conditions in general. Although this Court has jurisdiction because Plaintiff Kane seeks injunctive relief as to one type of the issues addressed in the First Amended Complaint, Plaintiff Kane seeks relief as to the destruction of one specific item. No other plaintiff could have exhausted the administrative remedies as to the specific claim at issue in the instant Motion.
This Court therefore CONCLUDES that Plaintiff's failure to exhaust his available administrative remedies as to the destruction of the Kane Prayer Object precludes him from seeking . a preliminary injunction addressing that issue. See § 1997e(a); Booth, 532 U.S. at 741. The Court therefore DENIES the Motion as to Plaintiff Kane.
50

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 51 of 72 PageID #: 3638
III. Preliminary Injunction Analysis A. Plaintiff Kane For the sake of completeness, the Court also notes
that, even if Plaintiff Kane had exhausted his administrative remedies, this Court would still deny the Motion as to Plaintiff Kane because he has not established that he is likely to suffer irreparable harm in the absence of a preliminary injunction. The Court recognizes that Plaintiff Kane alleges that Defendants violated his constitutional rights by destroying the Kane Prayer Object and, "[u]nlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm." Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008), reversed on other grounds, 131 S. Ct. 746 (2011). Based upon the evidence currently before it, this Court finds that Plaintiff Kane has only established a monetary injury that can be later remedied by a damage award.
Defendants do not dispute that Plaintiff Kane is authorized to retain his turtle amulet in his cell, and they do not dispute that he would be allowed to keep a replacement amulet as long as it passed a security inspection. Defendants presented testimony that, if Plaintiff Kane had established, through the applicable administrative procedures, that Red Rock personnel were responsible for the destruction of his turtle amulet,
51

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 52 of 72 PageID #: 3639
Plaintiff Kane would have been compensated for his loss. [Richey Aff. at ~ 52.] Further, although Plaintiff Kane's father cannot make him another amulet, Plaintiff Kane admitted that "another kupuna or kumu [could] decide upon an amulet for [him] and make it[,]" but "[i]t may cost him or her money to get the materials needed to make the amulet." [Kane Suppl. Decl. at ~ 7.] Plaintiff Kane also assigned an estimated value of fifty dollars to his "HAWAIIAN AMULET". [Richey Aff., Exh. 3-D (14-6D Form) at 1.] At the hearing, Advisor Haili testified that he has looked for an on-line vendor of Hawaiian amulets, but he has been unable to find one ~ho would be able to provide the amulets at a rate that the inmates could afford. His testimony, however, establishes that commercial purchase of Hawaiian amulets is available to remedy Plaintiff Kane's injury.
The Court acknowledges that Plaintiff Kane states that he "also want[s] to make sure that [his] Native Hawaiian sacred items are not desecrated again." [Kane Suppl. Decl. at ~ 7.] Plaintiff Kane, however, has not established that there is an imminent danger that his sacred items will be desecrated again in the absence of a preliminary injunction. He states only:
22. It is my understanding that Red Rock employees are instructed to respect and avoid mishandling sacred objects belonging to inmates of other religions. I feel that the Red Rock's damage to my turtle amulet is discriminatory and I feel immediately and irreparably harmed by this continuing discrimination.
52

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 53 of 72 PageID #: 3640

23. I also feel that Red Rock employee's [sic] damage to my turtle pendant was demeaning and insensitive to my religion. Because my turtle pendant is permanently damaged, I feel a strong spiritual injury.

[Kane Decl. at ~~ 22-23.] While the Court does not doubt the

sincerity of Plaintiff Kane's testimony regarding the importance

of his turtle amulet, the evidence currently before this Court

indicates that monetary damages can remedy his injury, and there

is nothing to support Plaintiff Kane's allegation that incidents

like the cell search which damaged his amulet are systemic and

likely to reoccur without a preliminary injunction.

Insofar as the likelihood of irreparable harm is a

required element of either the Winter test alone or the serious

questions analysis within the Winter test, Plaintiff Kane has not

established that he is entitled to a preliminary injunction. The

Court therefore DENIES the Motion as to Plaintiff Kane.

B. Plaintiff Davis

Whether Plaintiff Davis is entitled to a preliminary injunction is a closer question.

1. Likelihood of Success on the Merits

a. Count XXIV - RLUIPA

RLUIPA provides in relevant part, that "[n]o

government shall impose a substantial burden on

the religious exercise of a person residing in or

confined to an institution

. even if the

burden results from a rule of general

applicability," unless the government establishes

that the burden furthers "a compelling

53

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 54 of 72 PageID #: 3641

governmental interest," and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1 (a) (1) - (2). RLUIPA defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5 (7) (A); Warsoldier v. Woodford, 418 F. 3d 989, 994 (9th Cir. 2005).

The Supreme Court has recognized RLUIPA as

"the latest of long-running congressional efforts

to accord religious exercise heightened protection

from government-imposed burdens .

"Cutter

v. Wilkinson, 544 u.S. 709, 714, 125 S. Ct. 2113,

161 L. Ed. 2d 1020 (2005). The statute itself

reflects this intent stating, "This chapter shall

be construed in favor of a broad protection of

religious exercise, to the maximum extent

permitted by the terms of this chapter and the

Constitution." 42 U.S.C. § 2000cc-3(g). See also

Warsoldier, 418 F.3d at 995.

Congress effectuated this intent by distinguishing RLUIPA from traditional First Amendment jurisprudence in at least two ways. First, it expanded the reach of the protection to include any "religious exercise," including "any exercise of religion, whether or not compelled by or central to, a system of religious belief." Cutter, 544 u.S. at 715, 125 S. Ct. 2113 (quoting 42 U. S . C. § 2 000 c c - 5 (7) (A) ). In fa c t , RLUI PA "bars inquiry into whether a particular belief or practice is 'central' to a prisoner's religion." Cutter, 544 u.S. at 725 n.13, 125 S. Ct. 2113; 42 U.S.C. § 2000cc-5(7) (A). Second, as opposed to the deferential rational basis standard of Turner v. Safley, 482 u.S. 78, 89-90, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), RLUIPA requires the government to meet the much stricter burden of showing that the burden it imposes on religious exercise is "in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1 (a) (1) - (2). See also Cutter, 544 U.S. at 717, 125 S. Ct. 2113; Warsoldier, 418 F.3d at 994.

54

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 55 of 72 PageID #: 3642
Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir. 2008) (footnote omitted) .
1) Religious Exercise & Substantial Burden This Court must first determine what "religious exercise" is at issue in this case. Plaintiff Davis urges the Court to construe this term as referring to his practice of using the Davis Prayer Object in his daily prayers and chants and to "gain and sustain [his] mana." [Davis Decl. at ~ 27.] Davis testified that he also used the Davis Prayer Object in dances, other individual religious protocol, and communal religious activities. It provides him spiritual comfort in the midst of his separation from his homeland, particularly when he is unable to participate in group religious activities. [Id. at ~~ 28-29.] At the hearing, Advisor Haili testified that the kukui nut symbolizes enlightenment, growth, and accomplishment. Dr. Tengan provided testimony that a Native Hawaiian religion practitioner may possesses a small, personal object that represents the mana of his 'aumakua and akua, and the practitioner may use the object in rituals and protocol. He testified that a kukui nut could be an example of such an object. [Tengan Decl. at ~~ 21, 23-24.] Plaintiff Davis argues that, pursuant to Greene, this Court cannot construe "religious exercise" as the practice of his Native Hawaiian religion as a whole. This Court agrees. See
55

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 56 of 72 PageID #: 3643
Greene, 513 F.3d at 988 ("RLUIPA's plain language and our caselaw interpreting it compel the conclusion that the 'religious exercise' at issue in Greene's lawsuit is group worship, not Christianity."). This Court finds that Plaintiff Davis has established that the possession and use of his prayer object is a religious exercise for purposes of RLUIPA. See Cutter, 544 U.S. at 720 ("[T]he 'exercise of religion' often involves not only the belief and profession but the performance of. . physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine." (alterations in Cutter) (citation and quotation marks omitted)).
As to whether Saguaro's policy prohibiting Plaintiff Davis from possessing his prayer object constitutes a "substantial burden" on his religious exercise, this Court notes that the Ninth Circuit has stated, "[w]e have little difficulty in concluding that an outright ban on a particular religious exercise is a substantial burden on that religious exercise." Greene, 513 F.3d at 988 (citations omitted). This Court therefore finds that Saguaro's policy prohibiting Plaintiff Davis from possessing his prayer object and requiring him to donate it to charity, destroy it, or send it out of the facility substantially burdened his religious exercise.
56

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 57 of 72 PageID #: 3644
2) Compelling Governmental Interest & Least Restrictive Means
It is well established that the government has a compelling interest in maintaining prison security. Cutter, 544 U.S. at 725 n.13. In particular, this Court is concerned with the fact that, when Case Manager Blank confiscated the Davis Prayer Object on February 20, 2012, it was in a hand-made pouch along with contraband items. Thus, the government interest at issue in the Motion is not merely prison security in general, but a specific threat to prison security posed by Plaintiff Davis's storage of his prayer item. Saguaro clearly has a compelling interest in preventing an inmate from using a religious item to conceal contraband. The key issue is whether Saguaro used the least restrictive means to protect that compelling interest.
Even under RLUIPA, courts are to accord deference to prison administrators on issues of prison security. Cutter, 544 U.S. at 732, 725. The prison administrators, however, "still must show that [they] 'actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.'" Greene, 513 F.3d at 989 (quoting Warsoldier, 418 F.3d at 999 ("[E]ven outside the context of a minimum security facility, [the defendant] cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.")
57

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 58 of 72 PageID #: 3645
(citing United States v. Playboy Entm't Group, Inc., 529 U.s. 803, 824, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (finding, in the context of a First Amendment challenge to speech restrictions, that "[a] court should not assume a plausible, less restrictive alternative would be ineffective"))).
The policy at issue in the instant Motion is Saguaro's policy that the Native Hawaiian religion practitioners in the general population may only keep the religious items identified on the Retention List in their cells. [Griego Aff. at ~ 25.] Assistant Warden Griego compiled the Retention List after consultation with Advisor Haili in late June/early July 2011, and the Saguaro Warden approved the list. [Id. at ~~ 23, 25.] The compilation of the Retention List was an extended process, as evidenced by the fact that Advisor Haili discussed his suggestions for the list in an email dated May 27, 2010, which included a statement that "[a]fter three years we still have not come to a conclusion in the matter of personal items to be kept by individuals in their cells for daily prayer and communion." [Id., Exh. 1-A at 2.] Assistant Warden Griego included some of the items that Advisor Haili suggested, such as the amulet/pendant and sea salt, but he decided against the other items, including the malo and kihei. [Griego Aff. at ~ 25, Exh. 1-A.] Although Case Manager Blank testified at the hearing that she did not receive a copy of the Retention List until after the
58

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 59 of 72 PageID #: 3646
cell search during which she confiscated the Davis Prayer Object, she consulted with Assistant Warden Griego, and he determined that it was contraband because it was not on the Retention List. [Griego Aff. at ~ 33.]
In addition, upon Plaintiff Davis's transfer to Saguaro, he was required to complete and sign the Inventory Form. The Inventory Form clearly states that all property not listed on the form is considered contraband and would be disposed of as such. Plaintiff Davis did not list the Davis Prayer Object on the Inventory Form. [Id., Exh. l-E.] Although the Retention List was not in existence in August 2007 when Plaintiff Davis transferred to Saguaro, Assistant Warden Griego testified that, had a kukui nut been found in Plaintiff Davis's possession upon his transfer, it would have been confiscated as contraband. [Griego Aff. at ~ 37.] Plaintiff Davis did not submit any evidence to contradict this.
The Court is not persuaded by Plaintiff Davis's testimony that the Davis Prayer Object is not on the Inventory Form because he did not put it in the box of his belongings that was sent ahead of him to Saguaro. [Suppl. Davis Decl. at ~ 9.] The Inventory Form clearly asks the inmate to list ALL personal property, and Plaintiff Davis was apparently aware that he could add items to the pre-printed form, as evidenced by the numerous hand-written entries on the form. In addition, the Court is not
59

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 60 of 72 PageID #: 3647
persuaded by Plaintiff Davis's testimony that he believed there would be a separate religious inventory sheet upon which he could declare the Davis Prayer Object. [Id. at ~ 13.] Plaintiff Davis apparently knew that he could declare religious items on the Inventory Form, as evidenced by the fact that he declared his kihei and his lava lava. [Griego Aff., Exh. I-E.] Even accepting Plaintiff Davis's testimony that Chaplain Miller told him that he did not need to declare the Davis Prayer Object on a form, that advice was clearly mistaken. Even if Plaintiff Davis reasonably believed that he did not have to declare the Davis Prayer Object, after it was confiscated, he knew he was not authorized to have such an object and he still obtained an concealed a similar object. Based upon the evidence before this Court in the instant Motion, this Court rejects Plaintiff Davis's argument that the Retention List was a pretext. Further, the Court finds that Saguaro's policy of limiting an inmate's possession of personal items, including religious items, to a previously approved list of items was the least restrictive means of accomplishing the compelling governmental interest.
The Court emphasizes that the issue presented in Plaintiff Davis's request is a narrow one. The issue is not whether Saguaro should amend its Retention List, or its generally applicable policies regarding the possession of personal items, to allow an inmate to retain a sacred item of his choice, nor is
60

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 61 of 72 PageID #: 3648
the issue whether Plaintiff Davis should be allowed to retain his
specific prayer object. The issue currently before this Court
with respect to Plaintiff Davis's RLUIPA claim is whether, under
the particular circumstances of this case, Saguaro's enforcement
of its legitimately adopted Retention List and personal property
policies violated Plaintiff Davis's rights under the RLUIPA.
Based upon the foregoing analysis, although there is a
substantial burden on Plaintiff Davis's religious exercise,
Saguaro employs the least restrictive means to further a
compelling governmental interest. This Court therefore CONCLUDES
that Plaintiff Davis is not likely to succeed on the merits of
his RLUIPA claim.
b. Count III - Federal Free Exercise Claim
Plaintiff Davis also argues that the deprivation of his
prayer object violated his First Amendment right to the free
exercise of his religion. The Ninth Circuit has stated that:
"When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penalogical interests." Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); see also Ward v. Walsh, 1 F.3d 873, 876-77 (9th Cir. 1993) (holding that Turner still applies to free exercise claims of prisoners after Employment Division, Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990)). Turner sets forth four factors to be balanced in determining whether a prison regulation is reasonably related to legitimate penalogical interests:
61

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 62 of 72 PageID #: 3649
(1) Whether there is a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) Whether there are "alternative means of exercising the right that remain open to prison inmates"; (3) Whether "accommodation of the asserted constitutional right" will "impact . . guards and other inmates, and on the allocation of prison resources generally"; and (4) Whether there is an "absence of ready alternatives" versus the "existence of obvious, easy alternatives."
Turner, 482 U.S. at 89-90, 107 S. Ct. 2254 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984)).
Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (alteration
in Shakur) .
As to the first Turner factor, insofar as this Court
has concluded that the relevant Saguaro regulations satisfy the
higher compelling governmental interest/least restrictive means
analysis of the RLUIPA, this Court also concludes that the
regulations satisfy the less stringent valid, rational connection
to a legitimate governmental interest factor. Thus, this factor
weighs strongly in Defendants' favor.
As to the second Turner factor, Advisor Haili testified
that, while the use of the Davis Prayer Object would definitely
enhance the practice of Plaintiff Davis's belief system, the lack
of the Davis Prayer Object does not devalue Plaintiff Davis's
prayers and chants. Plaintiff Davis also has access to communal
62

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 63 of 72 PageID #: 3650
kukui nut lei that are retained in the Saguaro chapel, and he can participate in the weekly services and classes for Native Hawaiian religion practitioners. [Griego Aff. at ~ 27, 19.] Thus, Plaintiff Davis has alternate means of exercising his right to practice his religion. This factor weighs strongly in favor of Defendants.
In the Court's view, the third and fourth Turner factors are related. It is unclear what the alternative regulations would be which would allow Plaintiff Davis to retain his prayer object. The impact on the guards, other inmates, and prison resources would depend upon what the alternate system is. While it may seem simple to say that Plaintiff Davis should be allowed to retain his kukui nut, such a decision would arguably require a regulation stating that each practitioner of any religion is allowed to retain a religious item of his choice, as long as it satisfied certain security standards. Administering such a system would have a significant impact on the guards and prison resources in general. This Court therefore concludes that the third and fourth Turner factors are either neutral or weigh slightly in favor of Defendants.
Having considered all of the Turner factors, this Court CONCLUDES that Plaintiff Davis is unlikely to prevail on the merits of his federal free exercise claim because the regulations
63

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 64 of 72 PageID #: 3651
and policies at issue in the instant Motion are reasonably
related to legitimate penalogical interests.
c. Count XIII - state Free Exercise Claim
Plaintiff Davis also contends that the deprivation of
his prayer object violated his free exercise rights under the
state constitution. The Hawai'i Supreme Court has stated:
In order to find an unconstitutional infringement on Appellant's religious practices [in violation of the first amendment to the United States Constitution and article I, section 4 of the Hawai'i Constitution],
it [is] necessary to examine whether or not the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief, whether or not the parties' free exercise of religion had been burdened by the regulation, the extent or impact of the regulation on the parties' religious practices, and whether or not the state had a compelling interest in the regulation which justified such a burden.
State ex rel. Minami v. Andrews, 65 Haw. 289, 291, 651 P.2d 473, 474 (1982). Accord Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).
Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai'i
217, 247, 953 P.2d 1315, 1345 (1998) (alterations in Sullivan)
(quoting Dedman v. Board of Land & Natural Resources, 69 Haw.
255, 260-61, 740 P.2d 28, 32 (1987), cert. denied, 485 U.S. 1020,
108 S. Ct. 1573, 99 L. Ed. 2d 888 (1988)).
This Court has already discussed each of the factors in
the state free exercise analysis in the analysis of either
64

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 65 of 72 PageID #: 3652
Plaintiff Davis's RLUIPA claim or his federal free exercise
claim. Thus, for the reasons stated supra, this Court CONCLUDES
that Plaintiff Davis is unlikely to prevail on the merits of his
state free exercise claim.
d. Count VIII - Federal Equal Protection Claim
Plaintiff Davis also argues that the deprivation of his
prayer object violates his Fourteenth Amendment equal protection
rights because "De~endants allow inmates of other faiths to
retain personal religious items in their cells[.]" [Mem. in
Supp. of Motion at 27-28.] This district court has stated that:
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This is "essentially a direction that all similarly situated persons should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). An Equal Protection claim can be stated in one of two ways. First, a plaintiff can allege that "defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." See Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998) (citing Washington v. Davis, 426 U. S. 229, 239 - 40 (1976) ) . Alternatively, if the claims do not involve a suspect classification, a plaintiff can establish an equal protection "class of one" claim by alleging that she "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." ViII. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004).
Kaeo-Tomaselli v. Pi'ikoi Recovery House for Women, No. CIV.
11-00670 LEK, 2011 WL 5572603, at *2 (D. Hawai'i Nov. 16, 2011).
65

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 66 of 72 PageID #: 3653
"If the statute employs a suspect class (such as race, religion, or national origin) or burdens the exercise of a constitutional right, then courts must apply strict scrutiny, and ask whether the statute is narrowly tailored to serve a compelling governmental interest." Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200,219,115 S. Ct. 2097,132 L. Ed. 2d 158 (1995)).
Although a classification based on religion is a suspect classification, the only evidence that Plaintiff Davis offers that similarly situated inmates of other religions are treated more favorably is his unsubstantiated statement that "[i]t is my understanding that other religions are allowed to retain spiritually significant objects as part of their religious practices such as Christians." [Davis Decl. at ~ 32.] Plaintiff Davis provides no evidence that inmates of other religions are subject to more favorable policies and regulations regarding possession of religious items. Further, while not directly on point as to the issue of possession of religious items, the Court notes that Defendants presented testimony that Saguaro provides Native Hawaiian religion practitioners with "more weekly programing services than any other religion." [Griego Aff. at ~ 19.] Based on the evidence before this Court, Plaintiff Davis has not established that Saguaro treats inmates who practice the Native Hawaiian religion less favorably than it treats inmates of
66

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 67 of 72 PageID #: 3654
other religions. Thus, there is no suspect classification. Insofar as Plaintiff Davis bases his Motion on the existence of a suspect classification and the alleged failure to meet the test applicable to suspect classifications, this Court need not address whether the relevant policies and regulations meet the less stringent tests applicable to other classifications. This Court therefore CONCLUDES that Plaintiff Davis is unlikely to prevail on his federal equal protection claim.
e. Count XVIII - State Equal Protection Claim Finally, Plaintiff Davis argues that the deprivation of his prayer object violates his right to equal protection under the state constitution because "Defendants accommodate other faiths by allowing them to retain personal religious objects in their cell." [Mem. in Supp. of Motion at 30.] Article I, section 5 of the Hawaii Constitution provides, in relevant part, that "[n]o person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry." As with the federal equal protection analysis, Hawai'i courts apply the strict scrutiny test "where equal protection challenges involve 'suspect' classifications or
67

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 68 of 72 PageID #: 3655
fundamental rights." Nagle v. Bd. of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111-12 (1981) (footnotes omitted).
As stated supra, Plaintiff Davis has not established that Saguaro treats inmates who practice the Native Hawaiian religion less favorably than it treats inmates of other religions. This Court therefore CONCLUDES that Plaintiff Davis is unlikely to prevail on his state equal protection claim.
2. Likelihood of Irreparable Harm It is true that "an alleged constitutional infringement will often alone constitute irreparable harm." Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (citation and quotation marks omitted). This Court, however, has recognized that, where a plaintiff fails to establish a likelihood of success on the merits of its civil rights claim, without more, the Court should not presume irreparable harm. Am. Promotional Events, Inc.-Nw. v. City & Cnty. of Honolulu, 796 F. Supp. 2d 1261, 1283 (D. Hawai'i 2011). Insofar as this Court has concluded that Plaintiff Davis has not established a likelihood of success on the merits of any of the claims relevant to the instant Motion, Plaintiff Davis is not entitled to the presumption of irreparable harm. This Court must therefore examine the evidence presented to determine whether Plaintiff Davis has proven a likelihood of irreparable harm.
68

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 69 of 72 PageID #: 3656
Plaintiff Davis has argued that his prayer object is irreplaceable because Kumu Lake passed away and therefore cannot make Plaintiff Davis a replacement object. [Suppl. Tengan Decl. at ~ 6.] As Plaintiff Kane recognized, however, another respected kumu, kahu, or kupuna could decide upon and fashion a replacement object. In fact, at the hearing on the Motion, Case Manager Blank testified that she discovered a similar kukui nut in a pouch during a second cell search after the February 20, 2012 search. She confirmed that the kukui nut and pouch were not the same items that she discovered during the February 20, 2012 cell search; those items had already been sent out of the facility. She testified that Plaintiff Davis was questioned about the second kukui nut and pouch and was advised of the consequences that he could face if he did not turn the items in. Plaintiff Davis, however, never turned in the second kukui nut and pouch. Although Case Manager Blank and others conducted a third cell search to try to find the second kukui nut and pouch, they were unable to do so.
Although Plaintiff Davis cannot obtain a new prayer item from Kumu Lake, Plaintiff Davis was able to obtain a comparable prayer object to the one confiscated on February 20, 2012. This Court therefore CONCLUDES that the likelihood of irreparable harm in the absence of a preliminary injunction is minimal.
69

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 70 of 72 PageID #: 3657
3. Balance of the Equities "To determine which way the balance of the hardships tips, a court must identify the possible harm caused by the preliminary injunction against the possibility of the harm caused by not issuing it." Univ. of Hawai'i Prof'l Assembly v. Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999). As previously noted in the discussion of the Turner factors, the burden imposed by a preliminary injunction allowing Plaintiff Davis to retain his prayer object could be significant because it may require Saguaro to allow all inmates of all faiths to possess religious objects of their choice, subject to certain safety restrictions. Pla~ntiff Davis has presented testimony that he feels a strong spiritual injury every day without the Davis Prayer Object. [Davis Decl. at ~ 33.] While the Court does not question the sincerity of Plaintiff Davis's religious beliefs, the Court does question the sincerity of his claim of spiritual injury, in light of the testimony that he kept contraband in the pouch that held his Davis Prayer Object and the testimony that he obtained and refused to turn in a second kukui nut and pouch. Even giving Plaintiff Davis the benefit of the doubt, this Court FINDS that the balance of the equities is, at best, neutral. 4. Public Interest This Court has recognized the following principles relevant to the public interest inquiry:
70

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 71 of 72 PageID #: 3658
The plaintiffs bear the initial burden of showing that the injunction is in the public interest. See Winter [v. Natural Resources Defense Council, Inc. 1, [555 U. S. 7,] 129 S. Ct. [365,] 378 [(2008)]. However, the district court need not consider public consequences that are "highly speculative." In other words, the court should weigh the public interest in light of the likely consequences of the injunction. Such consequences must not be too remote, insubstantial, or speculative and must be supported by evidence.
Finally, the district court should give due weight to the serious consideration of the public interest in this case that has already been undertaken by the responsible state officials. . who unanimously passed the rules that are the subject of this appeal. See Golden Gate Rest. Ass'n [v. City and County of San Francisco], 512 F.3d [1112] at 1127 [(9th Cir. 2008)] ("The public interest may be declared in the form of a statute." (internal quotation marks omitted)); see also Burford v. Sun Oil Co., 319 U.S. 315, 318, 63 S. ct. 1098, 87 L. Ed. 1424 (1943) (" [I] t is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy." (internal quotation marks omitted)). Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139-40 (9th Cir. 2009) (some citations and quotation marks omitted). The public interest inquiry primarily addresses the impact on non-parties rather than parties.
Am. Promotional Events, 796 F. Supp. 2d at 1284-85 (alterations
in Am. Promotional Events) .
This Court also FINDS that the public interest factor
is neutral. While the public has a strong interest in ensuring
that native people are able to practice their religious beliefs,
71

Case 1:11-cv-00144-LEK-BMK Document 182 Filed 09/30/12 Page 72 of 72 PageID #: 3659
even while incarcerated, the public also has a strong interest in the safe and orderly administration of correctional facilities.
5. Summary of Factors Having considered all of the relevant factors, this Court CONCLUDES that, under either the Winter test alone or the serious questions analysis within the Winter test, Plaintiff Davis has not established that he is entitled to the preliminary injunction requested in the Motion. The Court emphasizes that the rulings in the instant Order are solely for the purposes of the limited issues that Plaintiff David and Plaintiff Kane placed before the Court. The Court expresses no opinion at this time on the merits of the claims brought by Plaintiffs on behalf of the purposed class.
CONCLUSION On the basis of the foregoing, Plaintiff Richard Kapela Davis's and Plaintiff James Kane Ill's Motion for Preliminary Injunction, filed April 26, 2012, is HEREBY DENIED. IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, SEPTEMBER 30, 2012.
lsi Leslie E. Kobayashi
Leslie E. Kobayashi United States District Judge
72

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAI POAHA, )

TYRONE KAWAELANILUA`OLE

)

NA`OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; TED SAKAI, in his

)

official capacity as the

)

Director of the Hawaii

)

Department of Public Safety; )

CORRECTIONS CORPORATIONS OF )

AMERICA,

)

)

Defendants.

)

_____________________________ )

CIVIL NO. 11-00144 LEK-BMK

ORDER GRANTING DEFENDANT NEIL ABERCROMBIE’S MOTION FOR JUDGMENT ON THE PLEADINGS
On June 7, 2013, Defendant Neil Abercrombie, in his official capacity as the Governor of the State of Hawai`i (“Defendant Abercrombie”),1 filed his Motion for Judgment on the Pleadings (“Motion”). [Dkt. no. 322.] Plaintiffs Richard Kapela Davis, Tyrone Galdones, Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane, III, Ellington Keawe, and Kalani Poaha

1 This Court will refer to Defendant Abercrombie, together with Defendant Ted Sakai, in his official capacity as Director of the Hawai`i Department of Public Safety (“Defendant Sakai” and “DPS”), and Defendant Corrections Corporation of America (“CCA”) collectively as “Defendants.”

(collectively “Plaintiffs”) filed their Memorandum in Opposition on June 24, 2013, and Defendant Abercrombie filed his Reply on July 1, 2013. [Dkt. nos. 338, 341.] Pursuant to leave of Court, Plaintiffs filed a supplemental opposition to the Motion (“Supplemental Opposition”) on July 15, 2013, and Defendant Abercrombie filed a response to the Supplemental Opposition (“Supplemental Response”) on July 26, 2013. [Dkt. nos. 350, 360.] This matter came on for hearing on August 5, 2013. Appearing on behalf of Defendant Abercrombie were David Lewis, Esq., and April Luria, Esq., and appearing on behalf of Plaintiffs were Sharla Manley, Esq., and Alan Murakami, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendant Abercrombie’s Motion is HEREBY GRANTED for the reasons set forth below.
BACKGROUND Plaintiffs Davis, Hughes, Kaahu, Holbron, Kane, Keawe, and Poaha filed the Second Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Second Amended Complaint”) on August 22, 2012. [Dkt. no. 145.] Plaintiff Galdones also filed his Supplemental Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Supplemental Complaint”) on August 22, 2012. [Dkt. no. 146.]
2

Plaintiffs are all Hawai`i residents who were convicted
and sentenced for violating Hawai`i law, and they are detained at
either Saguaro Correctional Center (“Saguaro”) or Red Rock
Correctional Center (“Red Rock”). Each Plaintiff is of native
Hawaiian ancestry and is a practitioner of the native Hawaiian
religion. Saguaro and Red Rock are private prisons in Arizona,
operated by CCA. The State of Hawai`i houses inmates at CCA’s
facilities pursuant to various contracts. [Second Amended
Complaint at ¶¶ 7-10, 12(c), 17-18; Supplemental Complaint at
¶¶ 7-10, 12(c), 17-18.] In the instant case, Plaintiffs allege
that, during each Plaintiff’s incarceration at either Saguaro or
Red Rock, Defendants have prohibited and/or are prohibiting him
from exercising his constitutional and statutory right to
practice his faith.
I. Second Amended Complaint
The Second Amended Complaint alleges the following
claims:
•Violation of Plaintiffs’ right to the free exercise of their religion pursuant to the First and Fourteenth Amendments of the United States Constitution as to daily worship practices (“Count I”), the observance of Makahiki2 (“Count II”), access to sacred items (“Count III”), access to sacred space
2 “The Makahiki season is signaled by the rising of the Makali`i (Pleiades) Constellation in October-November of each year. The Makahiki season ends by the setting of Makali`i (Pleiades) Constellation in February-March of each year.” [Second Amended Complaint at ¶ 47.] There are ceremonies, including customary and traditional activities, marking the beginning and the end of the Makahiki season. [Id. at ¶ 48.]
3

(“Count IV”), and access to a spiritual advisor (“Count V”); •Violation of Plaintiffs’ equal protection rights pursuant to the
Fourteenth Amendment of the United States Constitution as to daily worship practices (“Count VI”), the observance of Makahiki (“Count VII”), access to sacred items (“Count VIII”), access to sacred space (“Count IX”), and access to a spiritual advisor (“Count X”); •Violation of Plaintiffs’ right to free exercise of their religion pursuant to Article I, § 4 of the Hawai`i State Constitution as to daily worship practices (“Count XI”), the observance of Makahiki (“Count XII”), access to sacred items (“Count XIII”), access to sacred space (“Count XIV”), and access to a spiritual advisor (“Count XV”); •Violation of Plaintiffs’ equal protection rights pursuant to Article I, § 5 of the Hawai`i State Constitution as to daily worship practices (“Count XVI”), the observance of Makahiki (“Count XVII”), access to sacred items (“Count XVIII”), access to sacred space (“Count XIX”), and access to a spiritual advisor (“Count XX”); •Violation of Plaintiffs’ rights relating to native Hawaiian customary and traditional practices pursuant to Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1 as to the observance of Makahiki (“Count XXI”);
•Violations of the Religious Land Use and InstitutionaliPzeerdsons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), as to daily worship practices (“Count XXII”), the observance of Makahiki (“Count XXIII”), access to sacred items (“Count XXIV”), access to sacred space (“Count XXV”), and access to a spiritual advisor (“Count XXVI”).
The Second Amended Complaint prays for the following
relief:
•certification of the case as a class action, appointment of Plaintiffs as the class representatives, and appointment of class counsel;
•declaratory relief that Defendants violated Plaintiffs’ and the class members’ rights under: the Free Exercise Clauses of the First Amendment and the Hawai`i State Constitution; the Equal Protection Clauses of the Fourteenth Amendment and the Hawai`i State Constitution; Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1; and RLUIPA;
•injunctive relief allowing Plaintiffs and the class members to gather once daily in observance of their native Hawaiian religion, participate in certain specific ceremonies critical to the annual Makahiki Season, use and maintain
4

customary and traditional objects and items, construct and access an outdoor sacred space, and meet a spiritual leader on a daily basis; •injunctive relief requiring Defendants to develop a comprehensive plan and to promulgate policy guidelines allowing inmates to practice their native Hawaiian religion “on a regular and equal basis with all other religions represented at correctional facilities[;]” [id. at pgs. 12829, ¶ 13;] •the appointment of a special master to monitor Defendants’ compliance with the relief ordered in this case; •compensatory damages; •reasonable attorneys’ fees and costs, as authorized by statute; and •any other appropriate relief.
II. Supplemental Complaint
The Supplemental Complaint states that Plaintiff
Galdones “hereby joins in and asserts COUNTS I through XXVI of
the Amended Complaint on his own behalf and on behalf of all
those similarly situated.” [Supplemental Complaint at ¶ 124.]
The Supplemental Complaint also asserted an additional
retaliation claim. [Id. at ¶¶ 125-37.] The Supplemental
Complaint contains the same prayers for relief as the Second
Amended Complaint, but it also seeks declaratory relief,
injunctive relief, damages, and other relief related to the
retaliation claim. [Id. at pgs. 33-34, ¶¶ 17-23.]
This Court dismissed Galdones’s retaliation claim for
failure to exhaust his administrative remedies. [Order Granting
in Part and Denying in Part Defendants’ Motion to Dismiss for
Failure to Exhaust, filed 4/11/13 (dkt. no. 286), at 28-29.]
Thus, Plaintiff Galdones’s only remaining claims are the same
5

claims that are asserted in the Second Amended Complaint. Plaintiff Galdones, however, is not one of the named Plaintiffs in the Second Amended Complaint, although he is within the proposed Class and Segregation Subclass described in the Second Amended Complaint. [Second Amended Complaint at ¶¶ 23-24.] I. Motion
In the instant Motion, Defendant Abercrombie seeks judgment on the pleadings as to all counts against him in the Second Amended Complaint and the Supplemental Complaint. He also argues that this Court should dismiss Plaintiffs’ Article XII, § 7 claim as to all Defendants.
Defendant Abercrombie first points out that Plaintiffs have only sued him in his official capacity, and neither a state nor a state official sued in his official capacity is a “person” for purposes of a 42 U.S.C. § 1983 claim for monetary damages. [Mem. in Supp. of Motion at 4-5.] Defendant Abercrombie therefore argues that this Court must grant judgment on the pleadings as to all of Plaintiffs’ § 1983 claims for monetary damages against him.
Defendant Abercrombie acknowledges that state officials, in their official capacity, are persons for purposes of a § 1983 claim for prospective injunctive relief. Further, a claim against a state official in his official capacity is essentially a claim against the state itself. Respondeat
6

superior and vicarious liability do not apply to § 1983 claims. In order to establish § 1983 liability against a state official, a plaintiff must prove that the official is an agent of the state with regard to a state policy or custom that was the moving force behind the violation of the plaintiff’s rights. [Id. at 5-6.]
Defendant Abercrombie argues that Plaintiffs failed to sufficiently plead their claims against him because Plaintiffs failed to present any factual allegations that, if proven, would support the legal conclusions in Plaintiffs’ pleadings. [Id. at 6.] In particular, the Second Amended Complaint’s allegations relate to CCA’s policies, and Plaintiffs have not alleged that the Governor’s Office was involved in developing or maintaining those policies. [Id. at 7; Second Amended Complaint at ¶¶ 198207, 210-19.] Defendant Abercrombie asserts that the only alleged misconduct by the State is that it allegedly “engag[ed] in a ‘widespread practice of illegally delegating all of their Constitutional and statutory responsibilities owed to Plaintiffs that permits its contractor, Defendant CCA, to authorize [decisions or policies harmful to prisoners].’” [Mem. in Supp. of Motion at 7 (some alterations in Mem. in Supp.) (quoting Second Amended Complaint at ¶ 198); id. at 8 (citing paragraphs in the Second Amended Complaint pleading similar allegations).]
Defendant Abercrombie argues that the allegedly illegal delegation is insufficient to establish a nexus between the
7

Governor’s Office and CCA’s actions. Even assuming, arguendo, that DPS has oversight and monitoring responsibilities over CCA under Haw. Rev. Stat. § 353-16.2, Defendant Abercrombie asserts that his office is not involved in the oversight. [Mem. in Supp. of Motion at 8-9.] Defendant Abercrombie emphasizes that this district court has ruled that general oversight by the Governor’s Office over state laws was not enough to render the Governor a proper defendant in an action seeking an injunction against the enforcement of a gun regulation. [Id. at 9-10 (discussing Young v. Hawai`i, 548 F. Supp. 2d 1151 (D. Haw. 2008)).] Defendant Abercrombie emphasizes that the Governor’s Office has no role in the custody of Hawai`i prisoners. Pursuant to Haw. Rev. Stat. § 353C-2, the director of DPS has sole authority over the custody of Hawai`i prisoners. Plaintiffs themselves acknowledge that it was DPS that negotiated the incarceration agreement with CCA. According to Defendant Abercrombie, if this Court were to grant the injunctive relief that Plaintiffs seek, Defendant Abercrombie would not be the proper party to implement the relief. [Id. at 10-11.]
In a related argument, Defendant Abercrombie also asserts that Plaintiffs lack Article III standing to bring federal constitutional claims against him. Defendant Abercrombie contends that the recent decision in Hartmann v. California Department of Corrections & Rehabilitation, 707 F.3d 1114, 1117
8

(9th Cir. 2013), is fatal to Plaintiffs’ attempt to seek relief from him in this action. [Id. at 12-14.] He also argues that “[c]ases from across the country—particularly those applying Ninth Circuit law—recognize that RLUIPA cannot be invoked against a state governor who had no involvement in the challenged conduct.” [Id. at 15-16 (citing cases).] Thus, Defendant Abercrombie argues that, even assuming arguendo that RLUIPA allows suits for monetary damages against a state government, Plaintiffs’ RLUIPA claims for monetary, declaratory, and injunctive relief against him all fail. [Id. at 16.]
Similarly, Defendant Abercrombie also argues that he is not a proper defendant in Plaintiffs’ state constitutional and state statutory claims. Hawai`i courts consider federal case law addressing issues arising under the United States Constitution to be analogous and persuasive when applying similar provisions of the state constitution. Defendant Abercrombie argues that the principles articulated in Hartmann apply with equal force to the state constitutional and statutory claims in this case. [Id. at 17-19.]
Finally, Defendant Abercrombie argues that this Court should dismiss Plaintiffs’ claim under Article XII, § 7, which addresses traditional usage/gathering rights. [Id. at 19-21.] Defendant Abercrombie argues that, under Hawai`i case law, Article XII, § 7 rights only apply to undeveloped land. Allowing
9

the practice of customary and traditional native Hawaiian rights on fully developed land is inconsistent with “‘our understanding of the traditional Hawaiian way of life in which cooperation and non-interference with the wellbeing of other residents were integral parts of the culture.’” [Id. at 20 (emphasis and some citations omitted) (quoting Pub. Access Shoreline Hawai`i v. Hawai`i Cnty. Planning Comm’n, 79 Hawai`i 425, 450, 903 P.2d 1246, 1271 (1995)).] Defendant Abercrombie asserts that Saguaro and Red Rock are “fully developed, private property owned by CCA and [are] located entirely outside of Hawaii in the State of Arizona[,]” and therefore Article XII, § 7 rights do not apply. [Id. at 21 (footnote omitted).]
Defendant Abercrombie argues that he is entitled to judgment on the pleadings, and he urges this Court to dismiss all claims against him. Further, he argues that this Court should dismiss Plaintiffs’ Article XII, § 7 claim against all parties. II. Memorandum in Opposition
Plaintiffs first argue that this Court should not consider the instant Motion because Defendant Abercrombie failed to raise his arguments in a timely manner. Plaintiffs assert that Defendant Abercrombie could have presented these arguments in: Defendants’ March 23, 2011 motion to transfer venue; Defendants’ oppositions to Plaintiffs’ motions to amend the complaint, filed on September 14, 2011, June 15, 2012, July 5,
10

2012 (supplemental complaint), and July 31, 2012; and Defendants’
December 31, 2012 motion to dismiss for failure to exhaust
administrative remedies. [Mem. in Opp. at 3-5.] Plaintiffs
argue that Fed. R. Civ. P. 12(g)(2) precludes this type of
successive attack on a plaintiff’s pleadings. [Id. at 7-8.] If
this Court is inclined to consider the Motion, Plaintiffs ask
this Court to give Defendants notice that this Court will deny
any further Fed. R. Civ. P. 12 motions. [Id. at 10.]
As to Defendant Abercrombie’s argument that he is not a
person for purposes of § 1983 claims for damages, Plaintiffs
argue that Defendant Abercrombie waived his sovereign immunity by
removing this case to federal court. [Id. at 10-11.]
Plaintiffs also argue that they have sufficiently pled
a nexus between the deprivation of their rights and Defendant
Abercrombie’s actions. [Id. at 14-17.] For example, the Second
Amended Complaint alleges that:
•Defendant Abercrombie “is responsible for the supervision and management of all state instrumentalities and employees charged with (a) executing the State of Hawaii’s prison regulations and procedures; and (b) monitoring out-of-state public and private correctional facilities where Hawaii state inmates are serving their sentences[;]” [Second Amended Complaint at ¶ 13;]
•Defendant Abercrombie “must guarantee to those individuals the rights, privileges, or immunities secured by the Hawaii State Constitution, the United States Constitution and federal and state laws in a manner that is not inconsistent with their status as institutionalized persons, or with the legitimate penological objectives of the corrections system[;]” [id. at ¶ 16;]
11

•Defendant Abercrombie is responsible for the involuntary transfer of inmates to CCA facilities and, but for this “involuntary seizure” from Hawai`i, Plaintiffs would have continued to practice their native Hawaiian faith in Hawai`i; [id. at ¶¶ 18, 406;]
•Defendant Abercrombie is “enforcing an official policy, or in the alternative, engaging in a persistent widespread practice of illegally delegating all of [his] Constitutional and statutory responsibilities owed to Plaintiffs which permits [his] contractor, Defendant CCA to” violate Plaintiffs’ rights; see, e.g., id. at ¶ 198;
•CCA’s execution of discriminatory policies is a result of Defendant Abercrombie’s actions or omissions; see, e.g., id. at ¶ 201; and
•Article XII, § 7 requires the State to protect “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua`a tenants who are decedents of native Hawaiians who inhabited the Hawaiian Islands prior to 1778,[3] subject to the right of the State to regulate such rights” [id. at ¶ 402 (quoting Haw. Const. art. XII, § 7)].
3 The Intermediate Court of Appeals has stated:
As discussed in Kalipi [v. Hawaiian Trust Co.] and earlier cases, in ancient Hawai`i, the ahupua`a was a division of land that usually ran from the sea to the mountains, allowing a chief and his people access to the resources of both, as well as all lands in between. The ahupua`a tenants were allowed to cultivate land in exchange for services to their chief or the King, and all benefitted from the shared access to undeveloped lands so that the items naturally found there could be used for subsistence and cultural purposes.
State v. Pratt (“Pratt I”), 124 Hawai`i 329, 343, 243 P.3d 289, 303 (Ct. App. 2010) (some citations omitted) (citing Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 6–7, 656 P.2d 745, 748–49 (1982)), aff’d, State v. Pratt (“Pratt II”), 127 Hawai`i 206, 212, 277 P.3d 300, 306 (2012).
12

Plaintiffs therefore argue that they have suffered irreparable injury as a result of these violations by Defendant Abercrombie. [Mem. in Opp. at 19 (citing various paragraphs of the Second Amended Complaint)].
Plaintiffs contend that these allegations are not conclusory and that they sufficiently describe Defendant Abercrombie’s role in the policies at issue in this case. Further, Defendant Abercrombie is an indispensable party because Plaintiffs ask this Court for an order requiring Defendant Abercrombie’s office to abandon its unconstitutional and illegal policies regarding prisoners. Plaintiffs therefore assert that their allegations against Defendant Abercrombie would survive a Fed. R. Civ. P. 12(b)(6) motion. [Id. at 19-20.]
In addition, although the Motion claims that Defendant Abercrombie is not involved in the policies at issue in this case, Plaintiffs argue that Defendant Abercrombie’s claim is contrary to “recent testimony from . . . [Defendant] SAKAI, his Mainland Branch Administrator Kimoto, and the Wardens of [Saguaro] and [Red Rock], all of whom assert that it was the State of Hawaii’s continued policy and custom from 2008 to present dictating the scope of accommodations for Native Hawaiian practitioners at Hawaii’s mainland prisons.” [Id. at 21.] Plaintiffs acknowledge that a Fed. R. Civ. P. 12(c) motion only tests the pleadings, but they ask this Court to take judicial
13

notice of extrinsic evidence which Plaintiffs did not have when
they filed the Second Amended Complaint. [Id.]
Plaintiffs ask this Court to take judicial notice of
the following:
1) redacted excerpts of the transcript of the March 11, 2013 deposition of Shari Kimoto, who Plaintiffs state is Defendant Abercrombie’s Mainland Branch Administrator; [Mem. in Opp., Decl. of Andrew B. Sprenger (“Sprenger Decl.”), Exh. 1;]
2) a redacted memorandum dated July 17, 2008 to the warden of Saguaro from Kimoto, transmitting the “PSD Basic Makahiki Guidelines” - “the approved Department’s basic guidelines for the Makahiki season to be implemented in both in-state and out-of-state facilities[;]” [id., Exh. 2 at 1;]
3) a redacted e-mail dated August 4, 2009 from Kimoto to the wardens of Saguaro and Red Rock advising them that any native Hawaiian religious activities not addressed in the PSD Basic Makahiki Guidelines were not authorized; [id., Exh. 3; Mem. in Opp. at 23;]
4) redacted excerpts of the transcript of the May 7, 2013 deposition of Defendant Sakai (“Sakai Transcript”); [Sprenger Decl., Exh. 4;]
5) redacted excerpts of the transcript of the April 5, 2013 deposition of Todd Thomas, warden of Saguaro (“Thomas Transcript”); [id., Exh. 5;] and
6) redacted excerpts of the transcript of the April 3, 2013 deposition of Warden Stolc of Red Rock (“Stolc Transcript”) [id., Exh. 6].
In particular, Plaintiffs ask this Court to take judicial notice
of the following facts: the PSD Makahiki Guidelines are still in
effect at Red Rock and Saguaro; Warden Thomas must obtain
Kimoto’s approval before he makes any policy decisions regarding
the native Hawaiian religion; and Warden Stolc adopted the
14

positions of the PSD Makahiki Guidelines when deciding upon
Plaintiffs’ requests for religious accommodations. [Mem. in Opp.
at 23-24 (citing Sakai Trans. at 64-66; Thomas Trans. at 241-42;
Stolc Trans. at 43, 72-77).] Plaintiffs therefore argue that
there is a genuine issue of material fact regarding whether
Defendant Abercrombie’s office participated in the decisions at
issue in this case, as well as other genuine issues of material
fact that preclude judgment on the pleadings. [Id. at 24.]
Plaintiffs also argue that there is a genuine issue of
material fact regarding whether the situs of the Article XII, § 7
claim is CCA’s facilities in Arizona or Defendants’ offices in
Hawai`i. [Id.] According to Plaintiffs, the alleged
constitutional and statutory violations occurred in Hawai`i:
the State’s development and enforcement of its out-of-state transfer policy; the State’s failure to impose appropriate conditions to protect Native Hawaiian traditional and customary cultural and religious practices in its contract with Defendant CCA; the State’s failure to monitor CCA’s performance of that contract with regard to Native Hawaiian traditional and customary cultural and religious practices; and the State’s so-called “Makahiki guidelines” which have been used to ban any traditional and customary practices not identified in that document.
[Id. at 24-25.] In addition, the State negotiated its contract
with CCA in Hawai`i, and formulated and issued the Makahiki
guidelines in Hawai`i. [Id. at 25.]
Further, Plaintiffs contend that there is a genuine
issue of material fact as to whether Red Rock and Saguaro are
15

located on fully developed, private lands or public lands for purposes of the Article XII, § 7 analysis. Plaintiffs assert that those facilities are instrumentalities of the State because they are publicly funded and they perform tasks and functions that are traditional and fundamental functions of the State. Plaintiffs also emphasize that the facilities take direction from State officials, and the State government refers to Saguaro and Red Rock as its “Mainland Facilities.” [Id. at 25-26 (citing Sprenger Decl., Exh. 9 (audit report) at 2, Exh. 10 (Honolulu Advertiser article)).]
As to Defendant Abercrombie’s argument that Plaintiffs lack Article III standing to pursue claims against him, Plaintiffs concede that a governor’s general supervisory powers over a state’s department of corrections do not create a sufficient nexus to render the governor a proper defendant in a civil rights action challenging a corrections policy. Plaintiffs, however, argue that the cases following that general rule are distinguishable because Defendant Abercrombie: 1) “has purposefully availed himself and his office in acknowledging that his Department of Public Safety’s continued policy of transferring a disproportionate number of Native Hawaiians to private prisons is wrong, and therefore must be corrected[;]” 2) carries out the transfer policy without sufficient oversight and safeguards; and 3) “has an affirmative and non-delegable duty
16

under the Hawaii Constitution to ensure that to preserve and protect the customary and traditional practices of Native Hawaiians even if they are inmates of the State.” [Id. at 2728.] Plaintiffs also argue that “a governor is a necessary and indispensable party in matters which concern widespread prison reform and affects the entire state inmate population.” [Id. at 28.]
Plaintiffs point to the fact that, when Defendant Abercrombie took office, he recognized the special relationship between the State and the native Hawaiian people, and he acknowledged the negative effects of the practice of transferring inmates out-of-state. He has also stated publicly that the outof-state transfer policy was contrary to Hawaii’s basic values. [Id. at 29-30 (citing Sprenger Decl., Exh. 7 (excerpts of Defendant Abercrombie’s New Day in Hawai`i Plan), Exh. 8 (Star Advertiser article)).] In addition, the State Auditor’s December 2010 report to the Governor and the Legislature, titled “Management Audit of the Department of Public Safety’s Contracting for Prison Beds and Services” (“Audit”), states, inter alia, that: there were no written policies and procedures to regulate the care, custody, and confinement of Hawai`i inmates in out-of-state facilities; Kimoto failed to verify CCA’s statements about its compliance with contract requirements; and there was no formal process to evaluate CCA’s performance. [Id.
17

at 30-31 (citing Sprenger Decl., Exh. 9).] Plaintiffs argue that Defendant Abercrombie’s failure to act upon the Audit, Defendant Abercrombie’s tender of his defense in this case to CCA’s counsel, and Defendant Abercrombie’s allowing DPS to renew the State’s contract with CCA for another three years without any additional requirements constitute sufficient involvement in the contested policies to render Defendant Abercrombie a proper defendant in this action. [Id. at 31-32.]
In the alternative, Plaintiffs argue that Article XII, § 7 imposes an affirmative duty on Defendant Abercrombie, and on the director of DPS, to protect and preserve the customary and traditional rights of the native Hawaiians. [Id. at 33.] Plaintiffs emphasize that the Governor is responsible “‘for the faithful execution of the laws.’” [Id. (quoting Haw. Const. art. V, §§ 1, 5).] Plaintiffs emphasize that the customary and traditional rights referenced in Article XII, § 7 include religious and cultural practices, and they urge the Court to reject Defendant Abercrombie’s argument that the provision only protects gathering rights. [Id. at 34.]
Further, Plaintiffs contend that this constitutional duty is non-delegable, and the duty applies even though Saguaro and Red Rock are in Arizona. Plaintiffs reiterate that Defendant Abercrombie’s actions, as well as the actions of other State officials, occurred in Hawai`i and deprived them of their rights.
18

Plaintiffs contend that, at the very least, there is a genuine issue of fact as to Defendant Abercrombie’s obligations under Article XII, § 7, and therefore judgment on the pleadings is not appropriate in this case. [Id. at 35-36.]
Plaintiffs urge the Court to deny the Motion. However, if the Court does find that any of their claims against Defendant Abercrombie are defective, Plaintiffs argue that the Court should grant leave to amend because judgment on the pleadings is disfavored, and the amendment of their claims against Defendant Abercrombie would not be futile. [Id. at 37-39.] III. Reply
In his Reply, Defendant Abercrombie first argues that this Court should limit its consideration to the allegations of the pleadings, and this Court should not consider any of the exhibits submitted. If this Court is inclined to consider exhibits, Defendant Abercrombie objects that Plaintiffs’ Exhibits 7, 8, 9, and 10 lack foundation, are inadmissible hearsay, and violate Fed. R. Evid. 403. Defendant Abercrombie also emphasizes that Plaintiffs have had ample opportunity to amend their complaint, and the deadline to amend pleadings was June 15, 2012. [Reply at 1 n.2, 13.] Defendant Abercrombie also argues that this Court should reject Plaintiffs’ argument that the previous motions should have incorporated his current arguments because all of those motions were post-pleading motions which did not
19

implicate Fed. R. Civ. P. 12(g) or (h). Further, Rule 12 clearly states that a motion for judgment on the pleadings may be brought at any time. [Id. at 4-5.]
As to Plaintiffs’ arguments about the waiver of sovereign immunity, Defendant Abercrombie notes that the Motion itself did not raise any immunity issues because immunity issues are irrelevant to the question of whether Defendant Abercrombie, in his official capacity, is a “person” for purposes of § 1983. [Id. at 7-8.] Defendant Abercrombie argues that this Court must dismiss the § 1983 claims for damages against him, and he requests an award of fees incurred in responding to this argument. [Id. at 11-12.]
Defendant Abercrombie argues that Plaintiffs have only identified conclusory statements and legal theories about his alleged role in CCA’s religious programming decisions. If this Court accepts Plaintiffs’ position, the governor could be a defendant in any civil rights action based upon the acts or policies of his subordinates or state contractors. Defendant Abercrombie emphasizes that the Second Amended Complaint does not set forth any specific allegations of what he personally did with respect to the programming and policy decisions at issue in this case. [Id. at 13-14.] Defendant Abercrombie also asserts that Plaintiffs have not identified any state law or regulation allocating him “any specific role in combating religious
20

discrimination involving inmates.” [Id. at 15.] Defendant Abercrombie argues that this Court must dismiss the § 1983 claims, RLUIPA claims, and “corresponding state law claims” against him because Plaintiffs’ allegations regarding his involvement in the decisions at issue in this case are merely unsupported legal conclusions about his general oversight authority. [Id. at 15-16.]
If the Court is inclined to consider Plaintiffs’ exhibits, Defendant Abercrombie argues that the exhibits do not show that his office was involved in the decisions giving rise to Plaintiffs’ claims. [Id. at 16-20.]
Defendant Abercrombie also contends that Plaintiffs’ “purposeful availment” argument is misplaced because that is part of the due process minimum contacts analysis. Defendant Abercrombie further argues that he has not availed himself of anything that would render him culpable for the decisions at issue in this case. At most, Plaintiffs have established that Defendant Abercrombie has expressed frustration with the mainland transfer of inmates and that the State Auditor has criticized the management of the contract facilities. Neither of these points addresses the alleged infringement of Plaintiffs’ free exercise of their religion. [Id. at 20.]
Defendant Abercrombie argues that, to allege plausible constitutional claims against him, Plaintiffs must allege facts
21

that link him “to the adoption, regulation, and revision” of the allegedly discriminatory policies. Defendant Abercrombie argues that Plaintiffs have not done so. [Id. at 23 (citation and quotation marks omitted).] Defendant Abercrombie also points out that Plaintiffs did not respond to his argument that they failed to establish a nexus to or his participation in the conduct giving rise to their RLUIPA claims. [Id. at 24 n.12.]
In addition, Defendant Abercrombie argues that Plaintiffs lack Article III standing to pursue claims against him because his presence in this action is not necessary to their pursuit of injunctive relief. This jurisdictional defect provides another basis for the dismissal of all claims against him. [Id. at 24-25.]
Finally, Defendant Abercrombie asserts that Plaintiffs’ claim that there are issues of fact as to whether Saguaro and Red Rock are public lands is frivolous. The challenged practices occur in Arizona, where there is no history of the exercise of customary and traditional native Hawaiian rights on those lands, which are privately owned and fully developed. Defendant Abercrombie contends that Plaintiffs are bound by their previous admissions in their Preliminary Statement of CCA’s private ownership of the lands. [Id. at 25-27.] Defendant Abercrombie argues that accepting Plaintiffs’ argument would illogically require Arizona courts and government offices “to recognize a
22

unique Hawaii Constitutional right and somehow harmonize native Hawaiian rights with Arizona statutes governing adverse possession, criminal trespass, prison escape, criminal damage and other laws.” [Id. at 28 n.15.] Defendant Abercrombie therefore urges this Court to dismiss Plaintiffs’ Article XII, § 7 claim, in its entirety, with prejudice. [Id. at 28.] IV. Supplemental Filings
In their Supplemental Opposition, Plaintiffs deny they admitted that Saguaro and Red Rock are privately owned, and they argue that the Second Amended Complaint contains numerous allegations that the “actions and omissions of the Governor, and other state officials . . . caused . . . the formulation of the policy and practice of transferring prisoners out-of-state, and [the] negotiati[on of] a contract for their care and custody to a private contractor without imposing adequate safeguards to protect Native Hawaiian religious and cultural resources.” [Suppl. Opp. at 3.] Plaintiffs also argue that, even assuming that they did admit Saguaro and Red Rock are private, fully developed properties, this Court cannot consider Defendant Abercrombie’s argument that the admission requires dismissal of the Article XII, § 7 claim because Defendant Abercrombie did not raise that argument in the Motion. Further, Plaintiff argues that this Court must reject Defendant Abercrombie’s argument because of admissions in Defendants’ Answer to the Second Amended
23

Complaint that CCA is a governmental or a state actor as to the facts of this case.
In his Supplemental Response, Defendant Abercrombie argues that it is ultimately irrelevant whether CCA is a state actor based upon its contract to house Hawai`i inmates at Saguaro and Red Rock because Article XII, § 7 rights are exercised on native Hawaiians’ ancestral lands and are not applicable to private, fully developed land used for prisons in Arizona.
STANDARD Federal Rule of Civil Procedure 12(c) permits parties to move for judgment on the pleadings. “After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard governing a Rule 12(c) motion for judgment on the pleadings is “functionally identical” to that governing a Rule 12(b)(6) motion. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). A court evaluating a Rule 12(c) motion must construe the factual allegations in the complaint in the light most favorable to the nonmoving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Judgment on the pleadings under Rule 12(c) is proper when the moving party establishes on the face of the pleadings that there is no material issue of fact and that the moving party is entitled to judgment as a matter of law.” Jensen Family
24

Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 937 n.1 (9th Cir. 2011).
Courts have applied the Ashcroft v. Iqbal, 556 U.S. 662 (2009), standard for Fed. R. Civ. P. 12(b)(6) motions to Rule 12(c) motions. See, e.g., Peelua v. Impac Funding Corp., Civil No. 10-00090 JMS/KSC, 2011 WL 1042559, at *2 (D. Hawai`i Mar. 18, 2011) (“Following Iqbal, courts have applied Iqbal to Rule 12(c) motions.” (citations omitted)); Point Ruston, L.L.C. v. Pac. Nw. Reg’l Council of the United Bhd. of Carpenters & Joiners of Am., 658 F. Supp. 2d 1266, 1273 (W.D. Wash. 2009) (“The standard applied on a Rule 12(c) motion is essentially the same as that applied on a Rule 12(b)(6) motion[.]” (citation omitted)). To survive a motion to dismiss under Iqbal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S. Ct. 1955). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference
25

that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by Fed. R. Civ. P. 8(a)(2). Id. at 679.
“Dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (citation and quotation marks omitted). “But courts have discretion to deny leave to amend a complaint for futility[.]” Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987) (citation and quotation marks omitted).
DISCUSSION I. Preliminary Rulings
At the outset, this Court rejects Plaintiffs’ argument that the instant Motion is an improper successive motion, prohibited by Fed. R. Civ. P. 12(g)(2). A motion for judgment on the pleadings does not need to be filed before filing a responsive complaint. See Fed. R. Civ. P. 12(c). Further, a motion for judgment on the pleadings is “[o]ne of the exceptions to which Rule 12(g)(2) does not apply[.]” Shein v. Canon U.S.A., Inc., No. CV 08-07323 CAS (Ex), 2009 WL 3109721, at *6 n.9 (C.D. Cal. Sept. 22, 2009) (citing Fed. R. Civ. Proc. 12(h)(2)(B)).
26

This Court also denies Plaintiffs’ request for this Court to issue a cautionary instruction to Defendants that this Court will deny any further Fed. R. Civ. P. 12 motions. Should Defendants bring any further Rule 12 motions, the Court will rule upon the motions on a case-by-case basis.
As to the exhibits submitted with Plaintiffs’ Memorandum in Opposition and with Defendant Abercrombie’s Reply, this Court declines to consider them because this Court finds that converting the instant Motion into a motion for summary judgment is not warranted in this case. See Graham v. Orozco, No. CV 10–4618–RGK (E), 2012 WL 1813390, at *2 (C.D. Cal. May 17, 2012) (“As a general rule, the Court may not consider material beyond the pleadings without converting the motion to a motion for summary judgment.” (citing Fed. R. Civ. P. 12(c); Heliotrope General, Inc. v. Ford Motor Co., 189 F.3d 971, 979–80 (9th Cir. 1999); Qwest Communications Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal. 2002))). In addition, the materials in the exhibits are not properly subject to judicial notice. Id. (stating that, in ruling on a motion for judgment on the pleadings, a court “may consider matters properly the subject of judicial notice” (citing United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008))).
27

This Court now turns to the merits of Defendant
Abercrombie’s Motion.
II. Claims Against Defendant Abercrombie
Plaintiffs allege: twenty claims under 42 U.S.C. § 1983
for violation of their civil rights under the United States
Constitution and under the Hawai`i State Constitution; a claim
alleging violations of Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1;4 and five claims for
RLUIPA violations.
A. Section 1983 Claims
It is well settled that a state official sued in his
official capacity is not a “person” for purposes of a § 1983
action seeking monetary damages. See, e.g., Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989).
1. Sovereign Immunity and the Definition of “Person”
This district court has recognized:
As stated by the United States Supreme Court in Will v. Michigan Dep’t of State Police, Congress did not abrogate the States’ Eleventh Amendment immunity when enacting 42 U.S.C. § 1983:
Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil
4 This Court will address Defendant Abercrombie’s argument that this Court should dismiss Count XXI, Plaintiffs’ claim regarding Article XII, § 7 and Haw. Rev. Stat. § 1-1, in its entirety, supra Discussion section III.
28

liberties . . . . Will v. Michigan Dep’t of State Police, 491 U.S. 58, at 65–66 (1989).
Agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court. In re Pegasus Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005). A state agency or an official acting in her official capacity, except where sued for prospective injunctive relief, is not a “person” for purposes of liability under § 1983. Id. Oyama v. Univ. of Hawai`i, Civ. No. 12–00137 HG–BMK, 2013 WL 1767710, at *6 (D. Hawai`i Apr. 23, 2013) (alteration in Oyama) (some citations omitted). Plaintiffs acknowledge that this is the general rule, but they argue that the general rule does not apply because Defendants waived their sovereign immunity by removing this action from state court. Although Plaintiffs are correct that removal waives a state defendant’s sovereign immunity, this district court has recognized that “‘such waiver does not make a state or its agencies “persons” under § 1983.’” Honokaia `Ohana v. Park, Civ. No. 09–00395 ACK–LEK, 2010 WL 4273083, at *10 (D. Hawai`i Oct. 25, 2010) (quoting Lutz v. Delano Union Sch. Dist., No. 1:08 CV 01787 OWW DLB, 2009 WL 2525760, at *7 n.3 (E.D. Cal. Aug. 7, 2009)) (citing Itagaki v. Frank, Civil No. 09–00110 SOM/LEK, 2010 WL 2640110, at *3–5 (D. Hawai`i June 29, 2010)); see also Itagaki, 2010 WL 2640110, at *4 (“The scope of liability under § 1983 and the scope of the Eleventh Amendment are
29

‘separate issues,’ even if closely related.” (quoting Will, 491 U.S. at 64)).
Thus, Defendants’ waiver of their sovereign immunity through the removal of this action from state court does not preclude Defendant Abercrombie from arguing that he is not a “person” for purposes of § 1983. This Court concludes that Defendant Abercrombie, as a state official sued in his official capacity, is not a “person” for purposes of § 1983, and therefore Plaintiffs cannot obtain damages or retrospective injunctive relief against him. This Court GRANTS Defendant Abercrombie’s Motion as to Plaintiffs’ § 1983 claims for damages and retrospective injunctive relief against Defendant Abercrombie. Insofar as it would be futile to amend those claims, they are DISMISSED WITH PREJUDICE.
2. Prospective Relief As noted, supra, a state official, sued in his official capacity for prospective declaratory or injunctive relief is a “person” for purposes of § 1983 because “official-capacity actions for prospective relief are not treated as actions against the State.” Will, 492 U.S. at 71 n.10. Defendant Abercrombie acknowledges that he may be sued under § 1983 for prospective injunctive relief, but he argues that he is not the proper defendant in light of the type of injunctive relief that Plaintiffs seek.
30

The Ninth Circuit has recognized that the proper state

defendant in a § 1983 action seeking prospective injunctive

relief is the one who “would be responsible for ensuring that

injunctive relief was carried out, even if he was not personally

involved in the decision giving rise to [the plaintiff’s]

claims.” Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012)

(citing Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011)

(the prison warden was the proper defendant for a claim of

injunctive relief, notwithstanding his lack of personal

involvement in the challenged conduct, because he would be

responsible for ensuring that the injunctive relief was carried

out)), petition for cert. filed, 81 U.S.L.W. 3643 (Apr. 25,

2013); see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707

F.3d 1114, 1127 (9th Cir. 2013) (holding that official who the

defendants admitted was “the ‘most appropriate’ defendant to

execute court-ordered injunctive relief” and the official who

“would have the authority to ensure execution of any order

issued” were “proper official-capacity defendants for Plaintiffs’

Establishment Clause claim”).

Haw. Rev. Stat. § 353C-2 sets forth the powers and

duties of the director of DPS and states, in pertinent part:

[(a)]

The director of public safety shall

administer the public safety programs of the

department of public safety and shall be

responsible for the formulation and implementation

of state goals and objectives for correctional and

law enforcement programs, including ensuring that

31

correctional facilities and correctional services meet the present and future needs of persons committed to the correctional facilities. In the administration of these programs, the director may:
. . . .
(2) Train, equip, maintain, and supervise the force of public safety officers, including law enforcement and correctional personnel, and other employees of the department;
. . . .
(4) Perform other duties as may be required by law;
(5) Adopt, pursuant to chapter 91, rules that are necessary or desirable for the administration of public safety programs; and
(6) Enter into contracts in behalf of the department and take all actions deemed necessary and appropriate for the proper and efficient administration of the department.
(Emphasis added.) In addition, it is the director of DPS who has
the authority to “effect the transfer of a committed felon to any
correctional institution located in another state . . . .” Haw.
Rev. Stat. § 353-16.2(a); Haw. Rev. Stat. § 353-1. Thus, if
Plaintiffs prevail in this case, it is Defendant Sakai (as DPS
director) who has the statutory authority to execute the
requested injunctive relief and to remedy any violations
identified in any declaratory relief.
Plaintiffs essentially rely on Defendant Abercrombie’s
general oversight duties over state matters. This is
32

insufficient to render him subject to suit for the prospective
declaratory and injunctive relief Plaintiffs seek here. In Young
v. Hawaii, where the plaintiff sought to enjoin the enforcement
of Haw. Rev. Stat. Chapter 134, this district court ruled that it
lacked jurisdiction over the claims against the Governor and the
State Attorney General of Hawai`i because:
Allegations of general oversight of State laws are insufficient to establish the required nexus between the State officials, the Governor and the Attorney General, and the alleged violation of Plaintiff’s civil rights through the enforcement of HRS Chapter 134. A state official’s connection to the enforcement of the statutes “must be fairly direct, a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.” Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992).
548 F. Supp. 2d 1151, 1164 (D. Hawai`i 2008), overruled on other
grounds by Dist. of Columbia v. Heller, 554 U.S. 570 (2008).
Plaintiffs have not alleged any direct involvement by Defendant
Abercrombie in the decisions at issue in this case or direct
responsibility to implement any injunctive relief or to act upon
any declaratory relief awarded in this case.
Based on the foregoing, this Court concludes that
Defendant Abercrombie is not the proper defendant for Plaintiffs’
claims seeking prospective declaratory and injunctive relief.
Further, in light of the fact that Defendant Sakai is the proper
defendant for those claims, and Plaintiffs have already had
33

multiple opportunities to amend their complaint, this Court concludes that allowing Plaintiffs to amend their claims for prospective declaratory and injunctive relief against Defendant Abercrombie would be futile. This Court therefore GRANTS Defendant Abercrombie’s Motion as to Plaintiffs’ § 1983 claims for prospective declaratory and injunctive relief against him. Those claims are DISMISSED WITH PREJUDICE.5
B. RLUIPA Claims Under RLUIPA, “[a] person may assert a violation of
this chapter as a claim . . . in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000cc(a). The general rules of Article III standing apply to RLUIPA claims. Id. Defendant Abercrombie argues that he is entitled to judgment on the pleadings as to Plaintiffs’ RLUIPA claims because Plaintiffs lack Article III standing to pursue those claims and/or because the claims are meritless.
The Ninth Circuit’s analysis in Hartmann of the plaintiffs’ standing to bring a § 1983 claim for First Amendment - Establishment Clause violations applies to the analysis of Plaintiffs’ standing to bring the RLUIPA claims in the instant case. In Hartmann, the district court dismissed the claims
5 Insofar as this Court has dismissed all of Plaintiffs’ § 1983 claims, this Court need not address Defendant Abercrombie’s separate, but related, argument that Plaintiffs lack Article III standing to pursue their § 1983 claims.
34

against the five California State Personnel Board members, in
their official capacities (“SPB Members”) because the plaintiffs
“did not allege a causal connection between the SPB Members and a
constitutional or statutory violation.” 707 F.3d at 1127. In
affirming the district court’s ruling, the Ninth Circuit stated:
Article III requires a plaintiff asserting claims in federal court to have suffered an “injury in fact” that is fairly traceable to the conduct of a named defendant and that will be “likely” “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
. . . .
. . . EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005), [is] a narrow exception to the causation and traceability requirements of Article III standing. See Lujan, 504 U.S. at 560–61, 112 S. Ct. 2130. In Peabody, this court considered whether the Navajo Nation was a necessary party to an EEOC action brought against Peabody under Title VII, 42 U.S.C. § 2000e–2(a)(1) (2012), challenging discriminatory hiring provisions in coal-mining leases executed between Peabody and the Navajo Nation. Id. at 776. The Peabody court held that, although the EEOC had no cause of action against the Navajo Nation, it was a necessary party under [Federal] Rule [of Civil Procedure] 19(a) because to hold otherwise would permit the Navajo Nation to collaterally attack any injunctive relief ordered by the court. Id. at 780. This court clarified its holding in Peabody during a subsequent appeal from the district court’s grant of summary judgment. EEOC v. Peabody W. Coal Co., 610 F.3d 1070 (9th Cir. 2010). There, we stated that “[a]n absentee can be joined under Rule 19 in order to subject it, under principles of res judicata, to the ‘minor and ancillary’ effects of a judgment.” Id. at 1079 (citing Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 399, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982)).
35

The case at bar is distinguishable. Unlike in Peabody, there is no concern that the SPB Members will collaterally attack court-ordered relief. Further, Plaintiffs argue myopically that if the court orders the [California Department of Corrections and Rehabilitation (“CDCR”)] to create a paid full-time Wiccan chaplain position, the SPB Members would first be required to approve the proposed civil service position. This argument elides the court’s ability to impose alternative remedies, such as requiring Cate or Lattimore[6] to procure a personal services contract with a Wiccan chaplain. Adoption of Plaintiffs’ argument would also establish the broad precedent that any entity or individual participating in a court-ordered remedy constitutes a necessary party. This court is satisfied that Cate and Lattimore could and would sufficiently execute any court-ordered relief.
Because Plaintiffs lack Article III standing with respect to the SPB Members, we affirm their dismissal from this action.
Id. at 1128 (some alterations in Hartmann).
Similarly, in the instant case, Plaintiffs have not
alleged a causal connection between Defendant Abercrombie’s
actions or omissions and the alleged RLUIPA violations. Further,
Plaintiffs have not alleged any facts which would suggest that
Defendant Abercrombie might collaterally attack any relief
ordered in this case, and Plaintiffs have also named Defendant
Sakai, the state official who would have the authority to execute
any court-ordered relief in this case. This Court therefore
concludes that Plaintiffs lack the Article III standing necessary
6 Matthew Cate was the CDCR Secretary, and Mary Lattimore was the warden of the facility where one of the plaintiffs was incarcerated. Hartmann, 707 F.3d at 1119.
36

to bring their RLUIPA claims against Defendant Abercrombie.
Under the circumstances of this case, including the multiple
opportunities to amend their complaint, allowing Plaintiffs to
amend their RLUIPA claims against Defendant Abercrombie would be
futile. This Court therefore GRANTS Defendant Abercrombie’s
Motion as to Plaintiffs’ RLUIPA claims against him. Those claims
are DISMISSED WITH PREJUDICE.
III. Customary and Traditional Native Hawaiian Practices
Count XXI of the Second Amended Complaint alleges that
Defendants’ restrictions of Plaintiffs’ observance of the
Makahiki season constitute violations of Article XII, § 7 of the
Hawai`i Constitution and Haw. Rev. Stat. § 1-1.
Article XII, § 7 states: “The State reaffirms and shall
protect all rights, customarily and traditionally exercised for
subsistence, cultural and religious purposes and possessed by
ahupua`a tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to the
right of the State to regulate such rights.”
Haw. Rev. Stat. § 1-1 states:
The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State.
37

The Hawai`i Supreme Court has recognized that
“[c]ustomary and traditional rights in these islands flow from
native Hawaiians’ pre-existing sovereignty. . . . and were not
abolished by their inclusion within the territorial bounds of the
United States.” Pub. Access Shoreline Hawai`i v. Hawai`i Cnty.
Planning Comm’n (“PASH”), 79 Hawai`i 425, 449, 903 P.2d 1246,
1270 (1995) (citations omitted).
The Hawai`i Supreme Court has also stated that Article
XII, § 7
places an affirmative duty on the State and its agencies to preserve and protect traditional and customary native Hawaiian rights, and confers upon the State and its agencies “the power to protect these rights and to prevent any interference with the exercise of these rights.” Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of 1978, at 639 (1980). See also PASH, 79 Hawai`i at 437, 903 P.2d at 1258; HRS §§ 1–1 and 7–1 (providing two additional sources from which gathering rights are derived).7 Article
7 Although Plaintiffs do not allege a violation of any rights pursuant to Haw. Rev. Stat. § 7-1, the terms of § 7-1 are important to the understanding of Hawai`i case law applying Article XII, § 7 and Haw. Rev. Stat. § 1-1. Section 7-1 states:
Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to
(continued...)
38

XII, section 7’s mandate grew out of a desire to “preserve the small remaining vestiges of a quickly disappearing culture [by providing] a legal means by constitutional amendment to recognize and reaffirm native Hawaiian rights.” Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of 1978, at 640. The Committee on Hawaiian Affairs, in adding what is now article XII, section 7, also recognized that “[s]ustenance, religious and cultural practices of native Hawaiians are an integral part of their culture, tradition and heritage, with such practices forming the basis of Hawaiian identity and value systems.” Comm. Whole Rep. No. 12, in 1 Proceedings of the Constitutional Convention of 1978, at 1016.
In the judicial decisions following its enactment, this court reemphasized that “the reasonable exercise of ancient Hawaiian usage is entitled to protection under article XII, section 7.” See PASH, 79 Hawai`i at 442, 903 P.2d at 1263. See also Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d 745 (1982) (recognizing Hawai`i’s constitutional mandate to protect traditional and customary native Hawaiian rights); Pele Defense Fund [v. Paty], 73 Haw. [578,] 620, 837 P.2d [1247,] 1272 [(1992)] (reaffirming the “rudiments of native Hawaiian rights protected by article XII, § 7” of the Hawai`i Constitution).
Ka Pa`akai O Ka`Aina v. Land Use Comm’n, State of Hawai`i, 94
Hawai`i 31, 45-46, 7 P.3d 1068, 1082-83 (2000) (some alterations
in Ka Pa`akai) (footnotes omitted).
Whether a person’s exercise of native Hawaiian rights
is constitutionally protected is an issue of law. See Pratt II,
7(...continued) all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.
39

127 Hawai`i 206, 212, 277 P.3d 300, 306 (2012). In Pratt II, the
Hawai`i Supreme Court stated:
In . . . State v. Hanapi, 89 Hawai`i 177, 970 P.2d 485 (1998), we held that a criminal defendant asserting [the legal privilege for native Hawaiians to engage in customary or traditional native Hawaiian practices when such practices conflict with State statutes or regulations] as a defense to criminal charges must satisfy, “at minimum”, the following three-prong test: (1) the defendant must be “native Hawaiian” according to the criteria established in PASH, (2) the claimed right must be “constitutionally protected as a customary or traditional native Hawaiian practice,” and (3) the conduct must occur on undeveloped property. Id. at 185–86, 970 P.2d at 493–94. In that case, we held that Hanapi had not satisfied this test, so the court’s analysis stopped there. Id. at 187, 970 P.2d at 495.
Id. at 207, 277 P.3d at 301 (footnote omitted).8 Pratt II took
the Hanapi analysis one step further, articulating “the analysis
the courts must undertake when a defendant has made the ‘minimum’
showing from Hanapi.” Id. If a defendant satisfies the three-
part Hanapi test, the court must balance the defendant’s and the
state’s competing interests under the totality of the
circumstances. Id. at 213-18, 277 P.3d at 307-12. The Hawai`i
Supreme Court also emphasized that
the constitutional protection is not absolute; it only protects the “reasonable” exercise of native
8 Although Pratt and Hanapi involved Article XII, § 7 as a defense to criminal prosecution, the analysis also applies in civil cases, as evidenced by the fact that Hanapi articulated the three-factor test based on the Hawai`i Supreme Court’s analysis in PASH, which was not a criminal case. See Hanapi, 89 Hawai`i at 186-87, 970 P.2d at 494-95.
40

Hawaiian rights. [PASH, 79 Hawai`i] at 442, 903 P.2d at 1263. Then, the court pointed out that the constitution gives the State the “power to regulate the exercise of customarily and traditionally exercised Hawaiian rights,” and that the same provision obligates the State to protect the exercise of those rights “to the extent feasible.” Id. at 450 n.43, 903 P.2d at 1271 n.43. Id. at 215, 277 P.3d at 309. In the instant case, Plaintiffs are native Hawaiians who declare the native Hawaiian religion as their faith.9 [Second Amended Complaint at ¶¶ 8, 12(c).] Plaintiffs allege that Defendants have prevented, and are preventing, them from engaging in certain practices that are critical to the tenets of the native Hawaiian religion. Count XXI alleges that religious practices at issue are also protected by Article XII, § 7 and § 1-1. In order for Count XXI to survive Defendant Abercrombie’s Motion, the Second Amended Complaint must have alleged sufficient facts to allow this Court to draw the reasonable inference that: Plaintiffs’ activities are customary and traditional native Hawaiian practices protected by Article XII, § 7 and § 1-1; and Plaintiffs have a protected right to engage in those activities at Saguaro and Red Rock.
9 “PASH defines ‘native Hawaiians’ as ‘descendants of native Hawaiians who inhabited the islands prior to 1778[.]’” Pratt II, 127 Hawai`i at 207, 277 P.3d at 301 (alteration in Pratt II) (quoting PASH, 79 Hawai`i 425, 449, 903 P.2d 1246, 1270 (1995)).
41

In the instant case, Plaintiffs argue that there is a
genuine dispute of material fact as to whether Saguaro and Red
Rock are developed private lands or should be deemed undeveloped,
or less than fully developed, public lands. Defendant
Abercrombie argues that the prisons are private, developed
property, and, moreover, the right to continue customary and
traditional native Hawaiian practices is associated with a native
Hawaiian’s ahupua`a of familial residence. Thus, Defendant
Abercrombie argues that Article XII, § 7 and § 1-1 do not provide
Plaintiffs with the right to continue customary and traditional
native Hawaiian practices at Saguaro and Red Rock.
With regard to what is considered undeveloped or less
than fully developed public land, the Hawai`i Supreme Court has
stated:
we hold that if property is deemed “fully developed,” i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure, it is always “inconsistent” to permit the practice of traditional and customary native Hawaiian rights on such property. In accordance with PASH, however, we reserve the question as to the status of native Hawaiian rights on property that is “less than fully developed.” [79 Hawai`i] at 450, 903 P.2d at 1271.
Hanapi, 89 Hawai`i at 186-87, 970 P.2d at 494-95 (1998) (footnote
omitted) (emphasis in Hanapi). The Hawai`i Supreme Court noted
that, although it referred to residential property “as an example
of ‘fully developed’ property[,] [t]here may be other examples of
42

‘fully developed’ property as well where the existing uses of the property may be inconsistent with the exercise of protected native Hawaiian rights.” Id. at 187 n.10, 970 P.2d at 495 n.10. However, since Hanapi, the Hawai`i Supreme Court has not revised the issues of what constitutes “less than fully developed” property and what customary and traditional rights native Hawaiians may exercise on “less than fully developed” property. See, e.g., Pratt II, 127 Hawai`i at 208, 277 P.3d at 302 (the defendant was cited for violating a Hawai`i Administrative Rules provision regarding closed areas of state parks “when he was found in a closed area of the Kalalau Valley in the Nâ Pali Coast State Wilderness Park on Kaua`i”).
Although there is no state court precedent directly on point as to the issue of whether privately owned correctional institutions, which house state inmates pursuant to contract, constitute less than fully developed property, based on the state courts’ analyses in cases addressing other types of property, Saguaro and Red Rock arguably fall within the class of nonresidential, fully developed property. This Court, however, need not rule upon this issue because Count XXI fails on another ground.
The protection of customary and traditional rights requires either: 1) that the native Hawaiian asserting the protected right practices that right within the ahupua`a in which
43

he resides and which his family historically resided; or 2) if
the native Hawaiian seeks protection of a right extending beyond
that ahupua`a, the right must “have been customarily and
traditionally exercised in this manner.” See Pele Defense Fund,
73 Haw. at 620, 837 P.2d at 1272.
With regard to the relationship between customary and
traditional rights and a native Hawaiian’s ahupua`a, the Hawai`i
Supreme Court has stated:
We held that HRS § 7–1 contains two types of rights: “gathering rights which are specifically limited and enumerated, and rights to access and water which are framed in general terms.” [Kalipi, 66 Haw.] at 5, 656 P.2d at 748. With respect to these rights, we stated that “lawful occupants of an ahupuaa may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupuaa to gather those items enumerated in the statute.” Id. at 7–8, 656 P.2d at 749. The “undeveloped lands” limitation was imposed by the court to balance the concept of land ownership with that of native rights. Id. Because Kalipi asserted his rights based on ownership of land and not residence in the ahupua`a, we held that he was not entitled to exercise native gathering rights in Ohia. Id. at 9, 656 P.2d at 750.
We further held that HRS § 1–1’s “Hawaiian usage” clause may establish certain customary Hawaiian rights beyond those found in HRS § 7–1. Id. at 9–10, 656 P.2d at 750. Thus, we “believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area.” Id. at 10, 656 P.2d at 751. Noting testimony that “there have continued in certain ahupuaa a range of practices associated with the ancient way of life which required the utilization of the undeveloped
44

property of others and which were not found in § 7–1,” we held that HRS § 1–1 insures the continuance of these enduring practices “for so long as no actual harm is done thereby.” Id.
. . . .
Like Kalipi, [Pele Defense Fund (“PDF”)] members assert native Hawaiian rights based on article XII, § 7 and HRS § 1–1 in an ahupua`a other than the ones in which they reside. Unlike Kalipi, PDF members claim these rights based on the traditional access and gathering patterns of native Hawaiians in the Puna region. Because Kalipi based his claims entirely on land ownership, rather than on the practiced customs of Hawaiians on Molokai, the issue facing us is somewhat different from the issue in Kalipi. In Kalipi, we foresaw that “[t]he precise nature and scope of rights retained by § 1–1 would, of course, depend upon the particular circumstances of each case.” 66 Haw. at 12, 656 P.2d at 752.
Thus, we upheld the rights of native Hawaiians to enter undeveloped lands owned by others to practice continuously exercised access and gathering rights necessary for subsistence, cultural or religious purposes so long as no actual harm was done by the practice. As found by the Kalipi court, and reported by the Constitutional Convention committee that drafted article XII, § 7, these rights are associated with residency within a particular ahupua`a. See Stand. Comm. Rep. No. 57, reprinted in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, 637.
The Committee on Hawaiian Affairs added what is now article XII, § 7 to reaffirm customarily and traditionally exercised rights of native Hawaiians, while giving the State the power to regulate these rights. Id. at 639. Although these rights were primarily associated with tenancy within a particular ahupua`a, the committee report explicitly states that the new section “reaffirms all rights customarily and traditionally held by ancient Hawaiians.” Id. at 640 (emphasis added). The committee contemplated
45

that some traditional rights might extend beyond the ahupua`a; “[f]or instance, it was customary for a Hawaiian to use trails outside the ahupua`a in which he lived to get to another part of the Island.” Id. The committee intended this provision to protect the broadest possible spectrum of native rights[.]
. . . .
If, as argued by PDF, the customary and traditional rights associated with tenancy in an ahupua`a extended beyond the boundaries of the ahupua`a, then article XII, § 7 protects those rights as well. The drafters of the constitutional amendment emphasized that all such rights were reaffirmed and that they did not intend for the provision to be narrowly construed. We therefore hold that native Hawaiian rights protected by article XII, § 7 may extend beyond the ahupua`a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner.
Id. at 617-19, 837 P.2d at 1270-72 (some alterations in Pele
Defense Fund) (footnotes omitted).
In the instant case, none of the Plaintiffs alleges
that his respective correctional facility is within the ahupua`a
where his ancestral land was located.10 Nor does the Second
10 For example, in Pratt II, where the defendant was cited after being found in a closed area of a state wilderness park, the defendant presented the following evidence:
Pratt testified that he was born in Waimea to parents from O`ahu and the island of Hawai`i. He presented a family tree and testified that he is 75% native Hawaiian. Pratt named Kupihea as a family line, though that name does not appear on his family tree. The defense then presented its Exhibit 4, a book published by the State of Hawai`i called “An Archaeological Reconnaissance
(continued...)
46

Amended Complaint allege that, in the native Hawaiian culture, the religious practices that Plaintiffs seek to engage in at Saguaro and Red Rock have been customarily and traditionally exercised outside of the ahupua`a under circumstances analogous to the instant case. This Court therefore concludes that, to the extent that Plaintiffs allege they are entitled to engage in customary and traditional practices, pursuant to Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1, at either Saguaro or Red Rock, Plaintiffs’ claim fails because they have not pled the requisite connection between the customary and traditional practices and the land where they seek to engage in those practices.
There is also another theory set forth in Count XXI. Although Plaintiffs have represented that they are not challenging the practice of transferring native Hawaiian inmates to out-of-state facilities, Count XXI does present such a challenge. The Second Amended Complaint alleges that, “[b]ut for Plaintiffs’ involuntary seizure from the State of Hawaii to the State of Arizona, Plaintiffs would have continued to practice
10(...continued) Survey: Na Pali Coast State Park, Island of Kaua`i.” The book lists a land grant sold to the Kupihea family for part of the ahupua`a for the Kalalau Valley. Pratt testified that this is his family’s land, and that this is where he spends time in the Park.
127 Hawai`i at 208, 277 P.3d at 302. 47

critical tenets of their Native Hawaiian faith in their respective ahupua`a as their ancestors had done before them.” [Second Amended Complaint at ¶ 406.] Implicit in Count XXI is the claim that, if Plaintiffs cannot engage in practices protected by Article XII, § 7 and § 1-1 at Saguaro and Red Rock, Plaintiffs’ transfers to those facilities violated their rights under Article XII, § 7 and § 1-1. This argument, however, also fails.
As previously noted, the rights protected by Article XII, § 7 and § 1-1 are not absolute. Pratt II, 127 Hawai`i at 213, 277 P.3d at 307 (“For example, the constitutional language protecting the right to traditional and customary practices is qualified by the phrase ‘subject to the right of the State to regulate such rights.’”). Hawai`i law recognizes that the State may have important interests that require transferring State inmates to out-of-state correctional institutions. Pursuant to Haw. Rev. Stat. § 353-16.2(a), the director of DPS may only transfer a committed felon to an out-of-state institution if
the transfer is either: (1) In the interest of the security, management of the correctional institution where the inmate is presently placed, or the reduction of prison overcrowding; or (2) In the interest of the inmate.
Plaintiffs essentially ask this Court to rule that the State’s affirmative duty under Article XII, § 7 “to preserve and
48

protect traditional and customary native Hawaiian rights,” Ka Pa`akai, 94 Hawai`i at 45, 7 P.3d at 1082, supercedes any of the State’s interests which may favor the transfer of committed felons who are native Hawaiians to out-of-state correctional institutions. Further, taking Plaintiffs’ argument to its logical conclusion, because Article XII, § 7 protects a native Hawaiian’s practice of customary and traditional rights in his ahupua`a, the State would have to maintain a correctional facility in every ahupua`a to allow native Hawaiian inmates to practice their customary and traditional rights. Neither Article XII, § 7, § 1-1, nor Hawai`i case law interpreting those provisions requires such a rule. See, e.g., Pratt I, 124 Hawai`i 329, 356, 243 P.3d 289, 316 (Ct. App. 2010) (“Without question, under Hawai`i law, the State must protect the reasonable exercise of customary or traditional native Hawaiian rights, to the extent feasible, but the State is authorized to impose appropriate regulations to govern the exercise of these rights.” (citing article XII, § 7; PASH, 79 Hawai`i at 450–51, 903 P.2d at 1271)). Thus, to the extent that Count XXI challenges the State’s authority to transfer Plaintiffs to out-of-state correctional institutions, Count XXI fails as a matter of law.
This Court concludes that Count XXI does not state a plausible claim. Further, under the circumstances of this case and in light of the nature of the claim in Count XXI, allowing
49

Plaintiffs the opportunity to amend Count XXI would be futile. This Court therefore GRANTS Defendant Abercrombie’s Motion as to Count XXI, which is DISMISSED WITH PREJUDICE as to all Defendants. IV. Defendant Abercrombie’s Request for Sanctions
In his Reply, Defendant Abercrombie argued that Plaintiffs raised a groundless argument that he waived the right to argue that he is not a “person” for purposes of 48 U.S.C. § 1983 when Defendants removed this action. He contends that this Court should sanction Plaintiffs, and he asks this Court to award him the fees he incurred responding to Plaintiffs’ waiver argument. [Reply at 12.]
Defendant Abercrombie does not identify the legal authority he relies upon for the requested sanctions. To the extent that he seeks sanctions pursuant to Fed. R. Civ. P. 11, Defendant Abercrombie must file a separate motion for sanctions because this Court cannot award Rule 11 sanctions requested in a reply memorandum. See Fed. R. Civ. P. 11(c)(2). Defendant Abercrombie’s request for sanctions is therefore DENIED WITHOUT PREJUDICE to the filing of a motion for sanctions that complies with the requirements of Rule 11. This Court emphasizes that it expresses no opinion at this time as to the merits of such a motion.
50

CONCLUSION On the basis of the foregoing, Defendant Abercrombie’s Motion for Judgment on the Pleadings, filed June 7, 2013, is HEREBY GRANTED. All of Plaintiffs’ claims against Defendant Abercrombie in the Second Amended Complaint and the Supplemental Complaint are HEREBY DISMISSED WITH PREJUDICE. Further, Count XXI (Plaintiffs’ claim alleging violations of Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1) in the Second Amended Complaint and incorporated into the Supplemental Complaint is HEREBY DISMISSED WITH PREJUDICE as to all Defendants. In addition, Defendant Abercrombie’s request for sanctions is HEREBY DENIED WITHOUT PREJUDICE. This Court directs the Clerk’s Office to terminate Defendant Abercrombie as a party. IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, September 13, 2013.
/S/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge
RICHARD KAPELA DAVIS, ET AL. V. NEIL ABERCROMBIE, ETC., ET AL; CIVIL NO. 11-00144 LEK-BMK; ORDER GRANTING DEFENDANT NEIL ABERCROMBIE’S MOTION FOR JUDGMENT ON THE PLEADINGS
51

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAI POAHA, )

TYRONE KAWAELANILUA`OLE

)

NA`OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; TED SAKAI, in his

)

official capacity as the

)

Director of the Hawaii

)

Department of Public Safety; )

CORRECTIONS CORPORATIONS OF )

AMERICA,

)

)

Defendants.

)

_____________________________ )

CIVIL NO. 11-00144 LEK-BMK

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND
DENYING IN PART PLAINTIFF ROBERT HOLBRON’S COUNTER-MOTION FOR SUMMARY JUDGMENT ON HIS CLAIMS; AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT AGAINST DEFENDANTS AS TO THEIR CLAIMS UNDER THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT

On July 31, 2013, Defendants Ted Sakai, in his official capacity as the Interim Director of the Department of Public Safety (“Defendant Sakai” and “DPS”), and Corrections Corporation of America (“CCA”, collectively “Defendants”) filed their Motion

or Summary Judgment (“Defendants’ Motion”).1 [Dkt. no. 361.] Plaintiffs Richard Kapela Davis, Tyrone Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, and Kalai Poaha (collectively “the Joint Plaintiffs”) filed their memorandum in opposition on January 7, 2014.2 [Dkt. no. 465.] Plaintiff Robert A. Holbron (“Plaintiff Holbron”) filed a joint memorandum in opposition to Defendants’ Motion and a Counter-Motion for Summary Judgment on His Claims (“Holbron’s Counter-Motion”) on December 23, 2013. [Dkt. no. 452.] Defendants filed their reply in support of Defendants’ Motion (“Defendants’ Reply”), and their memorandum in opposition to Holbron’s Counter-Motion (“Counter-
1 Defendant Neil Abercrombie, in his official capacity as the Governor of the State of Hawai`i (“Defendant Abercrombie”), was also one of the moving defendants, but after the filing of Defendants’ Motion, this Court granted his motion for judgment on the pleadings, and dismissed all claims against him with prejudice. [Motion for Judgment on the Pleadings, filed 6/7/13 (dkt. no. 322); Order Granting Defendant Neil Abercrombie’s Motion for Judgment on the Pleadings, filed 9/13/13 (dkt. no. 390) (“9/13/13 Order”).] The 9/13/13 Order is also available as Davis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2013 WL 5204982 (D. Hawai`i Sept. 13, 2013). Thus, “Defendants” in this order refers to only Defendant Sakai and CCA.
2 On January 6, 2014, Huy filed an amicus curiae brief in support of the Joint Plaintiffs’ opposition to Defendants’ Motion (“Amicus Brief”). [Dkt. no. 463.] “Huy is a nationally recognized, 501(c)(3) non-profit organization . . . which seeks to enhance religious, cultural, and other rehabilitative opportunities for imprisoned Indigenous People, including American Indians and Native Hawaiians.” [Motion for Leave to File Amicus Curiae Brief in Supp. of Pltfs.’ Opp. to Summary Judgment, filed 12/20/13 (dkt. no. 439), at 1.] Defendants filed their memorandum in opposition to the Amicus Brief on January 13, 2014. [Dkt. no. 475.]
2

Motion Opposition”) on January 13, 2014. [Dkt. nos. 483, 482.] Plaintiff Holbron filed his reply in support of his CounterMotion (“Holbron’s Reply”) on January 17, 2014. [Dkt. no. 489.]
On October 31, 2013, the Joint Plaintiffs and Plaintiff Holbron (all collectively, “Plaintiffs”) filed their Motion for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act (“Plaintiffs’ Motion”). [Dkt. no. 417.] Defendants filed their memorandum in opposition on December 23, 2013, and Plaintiffs filed their reply (“Plaintiffs’ Reply”) on January 13, 2014. [Dkt. nos. 441, 476.]
These matters came on for hearing on January 27, 2014. Appearing on behalf of Defendants were David Lewis, Esq., and Jodie Roeca, Esq., and appearing on behalf of Plaintiffs were Sharla Manley, Esq., and Leina`ala Ley, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART, Plaintiffs’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART, and Holbron’s Counter-Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.3
3 This Court issued the original order on March 31, 2014, [dkt. no. 497,] and now amends the original order pursuant to the June 2, 2014 order granting in part and denying in part Defendants’ motion for reconsideration of the March 31, 2014
(continued...) 3

BACKGROUND Plaintiffs Davis, Hughes, Kaahu, Holbron, Kane, Keawe, and Poaha filed the Second Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Second Amended Complaint”) on August 22, 2012. [Dkt. no. 145.] Plaintiff Galdones also filed his Supplemental Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Supplemental Complaint”) on August 22, 2012. [Dkt. no. 146.] Plaintiffs are all Hawai`i residents who were convicted and sentenced for committing criminal violations of Hawai`i law. The Second Amended Complaint alleges that, during all periods relevant to the instant case, they were incarcerated at either Saguaro Correctional Center (“Saguaro”) or Red Rock Correctional Center (“Red Rock”).4 Each Plaintiff is of Native Hawaiian ancestry and is a practitioner of the Native Hawaiian religion. Saguaro and Red Rock are private prisons in Arizona, operated by CCA. The State of Hawai`i houses inmates at CCA’s facilities pursuant to various contracts. [Second Amended Complaint at ¶¶ 7-10, 12(c), 17-18; Supplemental Complaint at ¶¶ 7-10, 12(c),
3(...continued) order (“Motion for Reconsideration”). [Dkt. nos. 500 (Motion for Reconsideration), 529 (order).]
4 As of May 30, 2013, the Hawai`i inmates who were assigned to Red Rock were permanently transferred to Saguaro. [Defs.’ Motion, Concise Statement of Facts in Supp. of Defs.’ Motion (“Defs.’ CSOF”), Decl. of Warden Thomas (“Thomas Decl.”) at ¶ 5; id., Decl. of Warden Stolc (“Stolc Decl.”) at ¶ 5.]
4

17-18.] In the instant case, Plaintiffs allege that Defendants have prohibited them from exercising their constitutional and statutory right to practice their faith.
The Second Amended Complaint alleges the following claims: •Violation of Plaintiffs’ right to the free exercise of their
religion pursuant to the First and Fourteenth Amendments of the United States Constitution as to daily worship practices (“Count I”), the observance of Makahiki5 (“Count II”), access to sacred items (“Count III”), access to sacred space (“Count IV”), and access to a spiritual advisor (“Count V”); •Violation of Plaintiffs’ equal protection rights pursuant to the Fourteenth Amendment of the United States Constitution as to daily worship practices (“Count VI”), the observance of Makahiki (“Count VII”), access to sacred items (“Count VIII”), access to sacred space (“Count IX”), and access to a spiritual advisor (“Count X”); •Violation of Plaintiffs’ right to free exercise of their religion pursuant to Article I, § 4 of the Hawai`i State Constitution as to daily worship practices (“Count XI”), the observance of Makahiki (“Count XII”), access to sacred items (“Count XIII”), access to sacred space (“Count XIV”), and access to a spiritual advisor (“Count XV”); •Violation of Plaintiffs’ equal protection rights pursuant to Article I, § 5 of the Hawai`i State Constitution as to daily worship practices (“Count XVI”), the observance of Makahiki (“Count XVII”), access to sacred items (“Count XVIII”), access to sacred space (“Count XIX”), and access to a spiritual advisor (“Count XX”);
5 Plaintiffs allege that “[t]he Makahiki season is signaled by the rising of the Makali`i (Pleiades) Constellation in October-November of each year. The Makahiki season ends by the setting of Makali`i (Pleiades) Constellation in February-March of each year.” [Second Amended Complaint at ¶ 47.] There are ceremonies, including customary and traditional activities, marking the beginning and the end of the Makahiki season. [Id. at ¶ 48.]
5

•Violation of Plaintiffs’ rights relating to native Hawaiian customary and traditional practices pursuant to Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1 as to the observance of Makahiki (“Count XXI”);
•Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), as to daily worship practices (“Count XXII”), the observance of Makahiki (“Count XXIII”), access to sacred items (“Count XXIV”), access to sacred space (“Count XXV”), and access to a spiritual advisor (“Count XXVI”). The Supplemental Complaint states that Plaintiff
Galdones “hereby joins in and asserts COUNTS I through XXVI of the Amended Complaint[6] on his own behalf and on behalf of all those similarly situated.” [Supplemental Complaint at ¶ 124.] The Supplemental Complaint also asserted an additional claim alleging that Defendants retaliated against him, in violation of both federal law and state law. [Id. at ¶¶ 125-37.] This Court dismissed Galdones’s retaliation claim under federal law for failure to exhaust his administrative remedies. [Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss for Failure to Exhaust, filed 4/11/13 (dkt. no. 286) (“4/11/13 Order”), at 28-29.7] Thus, Plaintiff Galdones’s only remaining claims are his state law retaliation claim and the claims that are asserted in the Second Amended Complaint. Plaintiff
6 Plaintiffs’ Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief, [filed 11/14/11 (dkt. no. 42),] alleged the same twenty-six claims that Plaintiffs allege in the Second Amended Complaint.
7 The 4/11/13 Order is available at 2013 WL 1568425. 6

Galdones, however, is not one of the named Plaintiffs in the Second Amended Complaint, although he is within the proposed Class and Segregation Subclass described in the Second Amended Complaint. [Second Amended Complaint at ¶¶ 23-24.]
On September 13, 2013, this Court dismissed Count XXI with prejudice as to all Defendants. 9/13/13 Order, 2013 WL 5204982, at *22.
Plaintiffs’ Motion seeks partial summary judgment on the limited issue of whether they have established, for purposes of their RLUIPA claims, that the following activities at issue in this case are “religious exercises” for purposes of RLUIPA: “(1) daily outdoor congregational meetings; (2) the establishment of a modest outdoor sacred altar; (3) access to sacred garments and sacred items; (4) participation in religious services observing the Opening and Closing of the Makahiki Season; and (5) regular and frequent meetings with a spiritual advisor.” [Mem. in Supp. of Pltfs.’ Motion at 1.]
Defendants’ Motion seeks summary judgment in their favor as to all of Plaintiffs’ claims, and Holbron’s CounterMotion seeks summary judgment in his favor as to all of his claims.
7

DISCUSSION I. Scope of this Order and Order to File
Motion Regarding Claims Seeking Damages The scope of this order is limited to Plaintiffs’
claims seeking prospective declaratory and injunctive relief. In light of the analysis in Discussion section II of the 9/13/13 Order, this Court DIRECTS Defendants to file a motion for summary judgment addressing: 1) whether sovereign immunity and the 42 U.S.C. § 1983 definition of a “person” precludes Plaintiffs’ claims seeking either damages or retrospective equitable relief against Defendant Sakai; and 2) whether CCA stands in the shoes of DPS for purposes of the sovereign immunity analysis and the § 1983 “person” analysis. Defendants shall file their motion by May 13, 2014. This Court cautions Defendants that, insofar as sovereign immunity may be considered an affirmative defense, see In re Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002), if they fail to file the motion by May 13, 2014, this Court will deem the sovereign immunity defense waived.8 To the extent that any of the pending motions seek summary judgment as to any claims seeking damages or any claims seeking retrospective equitable relief, the motions are DENIED WITHOUT PREJUDICE.
8 This Court notes that Defendants filed their Motion for Summary Judgment Re: Sovereign Immunity/Damages on May 13, 2014. [Dkt. no. 519.] The motion is set for hearing on July 7, 2014.
8

A. Alleged Violations of the Hawai`i State Constitution As previously stated, Counts XI through XX allege
violations of the Hawai`i State Constitution. Defendants’ Motion contends that “such legal claims are not cognizable by private parties directly under the state constitution.” [Mem. in Supp. of Defs.’ Motion at 44-45 (some citations omitted) (citing Gonzalez v. Okagawa, 2013 WL 2423219, at *10 (D. Haw. June 4, 2013) (“to the extent Plaintiff is bringing this claim directly under the Hawaii Constitution, Hawaii courts have declined to recognize a direct private cause of action for violation of rights guaranteed under the provisions of the Hawaii Constitution listed by Plaintiffs”) (citing Makanui v. Dep’t of Educ., 6 Haw. App. 397, 721 P.2d 165, 170 n.2 (Haw. App. 1986) (“We do not decide whether Hawaii recognizes a cause of action for damages for deprivation of rights under the state’s constitution or laws.”))).] Insofar as this argument focuses on Plaintiffs’ claims for damages for violations of the state constitution, it is irrelevant to the instant order, which is limited to Plaintiffs’ claims for prospective equitable relief. Defendants have not identified any case law, nor is this Court aware of any, that precludes Plaintiffs from bringing claims for prospective equitable relief for violations of the state constitution. Thus, this Court DENIES Defendants’ Motion as to that issue.
9

B. Whether Defendant Sakai is Entitled to Summary Judgment
Defendants’ Motion argues that Defendant Sakai is entitled to summary judgment because he did not participate in the decision-making process regarding the religious programming at issue in this case. Insofar as this order is limited to Plaintiffs’ claims seeking prospective equitable relief, Defendant Sakai’s involvement, or lack thereof, in those decisions is irrelevant. In the 9/13/13 Order, this Court stated:
The Ninth Circuit has recognized that the proper state defendant in a § 1983 action seeking prospective injunctive relief is the one who “would be responsible for ensuring that injunctive relief was carried out, even if he was not personally involved in the decision giving rise to [the plaintiff’s] claims.” Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (citing Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (the prison warden was the proper defendant for a claim of injunctive relief, notwithstanding his lack of personal involvement in the challenged conduct, because he would be responsible for ensuring that the injunctive relief was carried out)), petition for cert. filed, 81 U.S.L.W. 3643 (Apr. 25, 2013); see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (holding that official who the defendants admitted was “the ‘most appropriate’ defendant to execute court-ordered injunctive relief” and the official who “would have the authority to ensure execution of any order issued” were “proper official-capacity defendants for Plaintiffs’ Establishment Clause claim”). 2013 WL 5204982, at *14 (alteration in 9/13/13 Order) (emphasis added). This Court also found that “if Plaintiffs prevail in this case, it is Defendant Sakai (as DPS director) who has the
10

statutory authority to execute the requested injunctive relief and to remedy any violations identified in any declaratory relief.” Id. Defendants did not seek reconsideration of the 9/13/13 Order.
Insofar as the instant order is limited to Plaintiffs’ claims seeking prospective declaratory and injunctive relief, and this Court found in the 9/13/13 Order that Defendant Sakai is the proper defendant for those claims, Defendant Sakai is not entitled to summary judgment, even if he did not participate in the decision-making regarding the religious programming at issue in this case. This Court therefore DENIES Defendants’ Motion as to Plaintiffs’ claims for prospective equitable relief against Defendant Sakai.
C. Out-of-Facility Transfers Defendants submitted evidence that “the Hawai`i inmates
who were incarcerated at Red Rock have been ‘permanently’ transferred to Saguaro.”9 [Defs.’ Reply, Decl. of Warden Thomas (“Thomas Reply Decl.”) at ¶ 5.] If there is no reasonable expectation of Plaintiffs’ transfer to Red Rock, their respective claims seeking prospective declaratory and injunctive relief regarding Red Rock will be moot. See Johnson v. Moore, 948 F.2d
9 In this order, this Court will only address religious policies/customs at Red Rock either in the context of what alternatives may be available at Saguaro or as examples of the types of burdens that Plaintiffs allege they experience as a result of Defendants’ restrictions on their religious activities.
11

517, 519 (9th Cir. 1991). Plaintiffs have not identified any evidence which indicates that there is a genuine issue of material fact as to the existence of a reasonable expectation that any of them may be transferred to Red Rock. Even viewing the current record in the light most favorable to Plaintiffs, see Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013), this Court finds that there are no genuine issues of material fact as to Plaintiffs’ claims for prospective equitable relief regarding Red Rock. This Court therefore concludes that Defendants are entitled to judgment as a matter of law because those claims are moot. See Fed. R. Civ. P. 56(a). Defendants’ Motion is GRANTED, and Plaintiffs’ Motion is DENIED, as to all of Plaintiffs’ claims seeking prospective equitable relief regarding Red Rock.
Defendants also presented evidence that Plaintiff Poaha is no longer incarcerated at either Saguaro or Red Rock. [Thomas Reply Decl. at ¶ 9 (“All Plaintiffs are currently incarcerated at [Saguaro], with the exception of inmate Poaha who transferred out of [Saguaro] to Halawa Correctional Facility [(“Halawa”)] on January 15, 2013.”).] Plaintiffs could have presented evidence regarding the circumstances of Plaintiff Poaha’s transfer from Saguaro to Halawa, if the circumstances of the transfer raise a triable issue of fact as to the existence of a reasonable expectation that he may be transferred back to Saguaro. Plaintiffs have not done so. In fact, in arguing that he should
12

remain a party in this case because he has a personal stake in class certification, Plaintiffs argue that Plaintiff Poaha “was very concerned about the daily group worship practice.” [Mem. in Opp. to Motion for Reconsideration, filed on 4/28/14 (dkt. no. 511), at 25 n.18.] Even construing the record in the light most favorable to Plaintiffs, this Court must find that they have not identified any evidence which raises a triable issue of fact as to whether there is a reasonable expectation that Plaintiff Poaha may be transferred back to Saguaro. Defendants’ Motion is GRANTED, and Plaintiffs’ Motion is DENIED, as to all of Plaintiff Poaha’s claims seeking prospective equitable relief.10
D. Plaintiff Holbron Holbron’s Counter-Motion addresses his claims that are
unique from the other Plaintiffs’ claims because of Holbron’s security status. To the extent that Plaintiff Holbron’s claims are the same as the other Plaintiffs’ claims, he joined in the Joint Plaintiffs’ memorandum in opposition to Defendants’ Motion. [Holbron’s Counter-Motion at 2 n.2.]
At Saguaro, Plaintiff Holbron was in administrative segregation until he moved to the Special Housing Incentive Program (“SHIP”), which has three levels, known as SHIP I, SHIP II, and SHIP III. SHIP I is the most restrictive, and
10 Plaintiff Poaha’s claims for damages and other retrospective relief remain.
13

SHIP III is the least restrictive. He was in SHIP from approximately April 2009 until February 2012. [Holbron Decl. at ¶¶ 8-17; Joint Pltfs.’ Responsive CSOF, Decl. of Sharla Manley (“Manley Responsive Decl.”),11 Exh. 6, filed 12/23/13 (dkt. no. 485) (sealed exhibit - SHIP policies).] Plaintiff Holbron voluntarily chose to remain in SHIP from some time in Fall 2010 until February 1, 2012. [Thomas Reply Decl. at ¶ 27; CounterMotion Opp., Decl. of David C. Lewis, Exh. 3 (agreement regarding Plaintiff Holbron’s status as a SHIP III Permanent Porter).] Thus, Plaintiff Holbron is apparently no longer in any form of restricted housing at Saguaro. Viewing the current record in the light most favorable to Plaintiff Holbron, this Court finds that there are genuine issues of material fact as to the existence of a reasonable expectation that he may be placed in a form of restricted custody at Saguaro in the future. If this Court ultimately finds that there is no reasonable expectation of such placement, Plaintiff Holbron’s claims seeking prospective declaratory and injunctive relief regarding restricted custody at Saguaro will be moot. This Court therefore DENIES the pending motions WITHOUT PREJUDICE to the extent that they seek summary judgment as to Plaintiff Holbron’s claims seeking prospective declaratory and injunctive relief regarding restricted custody at
11 The exhibits to the Manley Responsive Declaration are included in docket numbers 466 through 470.
14

Saguaro. Plaintiff Holbron’s remaining claims seeking prospective declaratory and injunctive relief are the same as the other Plaintiffs’ claims.
E. Plaintiff Galdones’s State Law Retaliation Claim In addition to his claims alleged in the Second Amended
Complaint, Plaintiff Galdones has a pending state law retaliation claim, as alleged in the Supplemental Complaint. Plaintiff Galdones alleges that Defendants retaliated against him for “exercis[ing his] First Amendment rights to file prison grievances, otherwise seek access to the courts, and practice [his] religion.” [Suppl. Complaint at ¶ 131.] Plaintiff Galdones alleges that he was charged with violations of Saguaro inmate policies based on an incident in the Native Hawaiian culture class on or about April 25, 2012. As a result of the charges, Plaintiff Galdones was placed in disciplinary segregation from about April 2012 to June 2012. [Id. at ¶¶ 40, 90-91, 93.] He alleges that the charges were a form of retaliation for his “attempt[] to ensure that appropriate protocols were followed during the Hawaiian class” and his “attempt to practice Native Hawaiian religious activities” in connection with the class. [Id. at ¶¶ 90-91.]
15

The Galdones Declaration, which Plaintiff Galdones signed on October 28, 2013, states that he is in the general inmate population at Saguaro. [Joint Pltfs.’ Amended Separate Concise Statement of Facts in Opp. to Defs.’ Motion, filed 1/6/14 (dkt. no. 466) (“Joint Pltfs.’ Responsive CSOF”), Decl. of Tyrone Galdones (“Galdones Decl.”) at ¶ 64.] Thus, he is no longer in disciplinary segregation as a result of the alleged retaliation. The Supplemental Complaint also alleges that:
117. The charges against GALDONES will harm him even after he returns to general population. As a result of those charges, GALDONES will be barred from working for six months. Prior to the wrongful charges, GALDONES worked as a porter and earned wages that he used for hygiene items.
118. As a result of Defendants’ wrongful charges against him, GALDONES will be barred from participating in hobby shop where he crafts objects that have cultural significance to him as a Native Hawaiian and that he sends to his family in Hawaii.
119. As a result of Defendants’ wrongful charges against him, Plaintiff GALDONES will be restricted in the amount of participation he can engage in as a member of the Hawaiian classes offered by Defendants at Saguaro. [Suppl. Complaint at ¶¶ 117-19 (bold emphasis added).] Plaintiffs filed the Supplemental Complaint on August 22, 2012, when Plaintiff Galdones was apparently still experiencing the effects of the alleged retaliation. Based on the allegations in paragraph 117, the ban from working as a result of the charges is clearly over. The Supplemental Complaint does not specify a
16

duration of the hobby shop ban or the restriction on Plaintiff Galdones’s participation in the Native Hawaiian classes. The Galdones Declaration, however, does not state that Plaintiff Galdones was subject to these restrictions when he signed the declaration. The declaration discusses the classes, but states only that Saguaro forces him to choose between either a hula class or a chants/rituals class and that there is often not enough room in the classes to accommodate all inmates who want to participate. [Galdones Decl. at ¶¶ 30-31.] Thus, there is no evidence that Plaintiff Galdones is currently experiencing the effects of the alleged retaliation. Viewing the current record in the light most favorable to Plaintiff Galdones, this Court finds that there are genuine issues of material fact as to the existence of a reasonable expectation of either being retaliated against in the future or suffering further effects of the alleged retaliation for the April 2012 incident. If this Court ultimately finds that there is no reasonable expectation either of such retaliation or further effects of the previous retaliation, Plaintiff Galdones’s request for prospective declaratory and injunctive relief as to his state law retaliation claim will be moot. This Court therefore DENIES Defendants’ Motion and Plaintiffs’ Motion WITHOUT PREJUDICE to the extent that they seek summary judgment as to Plaintiff Galdones’s request for prospective declaratory and injunctive relief as to
17

his state law retaliation claim.12 Plaintiff Galdones’s remaining claims seeking prospective declaratory and injunctive relief are the same as the other Plaintiffs’ claims.
This Court now turns to the merits of the two motions that are within the scope of this order. II. Plaintiffs’ Motion
RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA provides that:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--
(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a).
12 This Court emphasizes that, in light of the scope of the instant order and this Court’s rulings as to Plaintiff Galdones’s request for prospective equitable relief regarding his state law retaliation claim, this Court does not reach the merits of that claim.
18

If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion. 42 U.S.C. § 2000cc-2(b). Plaintiffs argue that there is no genuine issue of material fact as to the issue of whether the practices identified in the Second Amended Complaint are religious exercises for purposes of RLUIPA. RLUIPA defines “religious exercise” as follows: (A) In general The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. (B) Rule The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose. 42 U.S.C. § 2000cc–5(7). In other words, RLUIPA “bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (emphasis added). The United States Supreme Court in Cutter also noted that “[t]he ‘exercise of religion’ often involves not only belief and profession but the performance
19

of . . . physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine . . . .” Id. at 720 (some alterations in original) (citation and quotation marks omitted).
Similar to the analysis of First Amendment claims, in evaluating RLUIPA claims, courts “may not inquire into the ‘truth, validity, or reasonableness’ of [the p]laintiff’s religious need to” engage in the practice at issue in the case, but the court may inquire into whether the plaintiff “is insincere about the religious nature of his desire to” engage in the practice. Chernetsky v. Nevada, No. 3:06-CV-00252-RCJ, 2014 WL 910355, at *1 (D. Nev. Mar. 7, 2014) (citing Callahan v. Woods, 658 F.2d 679, 685 (9th Cir. 1981)); see also Johnson v. Nev. ex rel. Bd. of Prison Comm’rs, No. 3:11–cv–00487–HDM–VPC, 2013 WL 5428423, at *4 (D. Nev. Sept. 26, 2013) (“Similar to First Amendment jurisprudence, RLUIPA ‘. . . does not preclude inquiry into the sincerity of a prisoner’s professed religiosity.’” (quoting Cutter, 544 U.S. at 725 n. 13)). In Callahan, the Ninth Circuit noted that, “‘[a] religious belief can appear to every other member of the human race preposterous, yet merit the protections of the Bill of Rights,’” 658 F.3d at 685 (quoting Stevens v. Berger, 428 F. Supp. 896, 899 (E.D.N.Y. 1977)), and “if the free exercise right were dependent on one’s ability to establish the truth of one’s beliefs, then the First
20

Amendment guarantees might be rendered illusory,” id. (citing United States v. Ballard, 322 U.S. 78, 87, 64 S. Ct. 882, 886, 88 L. Ed. 1148 (1944)).
A. Daily, Outdoor, Group Worship Gatherings “Religious exercise” “encompasses not only ‘belief and
profession,’ but also involves physical acts, such as communal worship and participation in sacred rituals.” Brown v. Alden, No. CV–09–05089–CI, 2011 WL 5520429, at *7 (E.D. Wash. Oct. 13, 2011) (citing Cutter v. Wilkenson, 544 U.S. 709, 720, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005)). It is well established that, for purposes of RLUIPA, “group worship within the prison context is protected religious exercise.” Id. (footnote omitted) (citing Cutter, 544 U.S. at 720; Greene v. Solano Cnty. Jail, 513 F.3d 982, 987-88 (9th Cir. 2008); McCabe v. Arave, 827 F.2d 634, 637 (9th Cir. 1987)).
Plaintiffs rely heavily upon the July 16, 2012 report of Plaintiffs’ expert, Ty Preston Kāwika Tengan, Ph.D. (“the Tengan Report”),13 as support for Plaintiffs’ Motion. The Tengan
13 The Tengan Report is attached to Plaintiffs’ Concise Statement of Facts in Support of Their Motion (“Plaintiffs’ CSOF”) as Exhibit 1 to the Declaration of Ty Preston Kāwika Tengan. [Filed 10/31/13 (dkt. no. 418-2).]
Dr. Tengan is “a practitioner and a scholar of Native Hawaiian culture and religious practices” and he is fluent in the Hawaiian language. [Id. at ¶ 3.] He received his doctorate from the Department of Anthropology at the University of Hawai`i at Mānoa in 2003, and he is an Associate Professor of ethnic studies
(continued...) 21

Report states, inter alia: 8. In general, Native Hawaiian spiritual
tenets and beliefs are manifested in the observance of certain rituals and other activities to acknowledge aumākua and akua (deities), ancestors, and are also expressed and perpetuated in the very essence of a people and their relationship to each other and to their kulāiwi (native land).
9. Native Hawaiians continue to recognize that they are related to elements of nature - to the land, to the ocean, to the wind, to the rain. Nature is the domain of both ancestral spirits and Hawaiian deities . . . .
10. One of the primary concepts in Native Hawaiian religion holds that all persons, places, plants, and animals are imbued with mana, which loosely translated means spiritual power.
. . . . 18. Because traditional Native Hawaiian prayer, chant, dance and protocol are passed down from generation to generation by aural, visual, and kinesthetic means, it is vitally important that participants in Hawaiian religious activities meet regularly to practice appropriate prayer, chant, dance, and religious protocol. . . . 19. . . . [S]uch prayers, chants, hula, and protocol cannot be learned from a book, but must be learned from a kupuna, kahu, kumu (respected elder or teacher) or others to whom the prayers, chants, hula, and protocol have been personally transmitted. 20. Thus, Native Hawaiian religious practice includes not only individual prayer and chant, but
13(...continued) and anthropology. [Id. at ¶¶ 4-5.] He has “dedicated [his] academic career to the study of Native Hawaiian culture and religion.” [Id. at ¶ 6.]
22

also group prayer, chant, hula, and other activities that are essential to expressing religious belief and faith that increase the spiritual power - mana - of the individual and group.
21. In general, the more participants in a specific spiritual activity who are performing pono (righteous) activities, the more positive mana [sic] is created.
22. Ideally, religious activities should be guided by a qualified kahu, kumu, or kupuna. However, at the very least, Native Hawaiian religious activities should be practiced and performed by participants in a communal setting . . . .
23. Based upon the above discussions, it is not uncommon for Native Hawaiian religious practitioners to meet as a group outdoors at dawn to pray, chant and dance, meditate, and give offerings and commune with the land and the spirits as an essential expression of their religious belief and faith. [Tengan Report at ¶¶ 8-23.] In support of their position that “[g]reeting the sun daily is an important aspect of Native Hawaiian religion,” [Pltfs.’ CSOF at ¶ 17,] Plaintiffs rely on the Tengan Report and Ka`iana Haili’s14 deposition testimony that, for many practitioners of the Native Hawaiian religion,
14 Haili, who acts as the spiritual advisor to the practitioners of the Native Hawaiian religion at Saguaro, testified that, from 2010 to the present, he had visited Saguaro an average of four times a year to provide religious programming services. Two of the visits are usually associated with the opening and closing of the Makahiki season, and the other two visits are usually close to other ceremonial dates. [Defs.’ Responsive CSOF, Decl. of David C. Lewis (“Lewis Decl.”), Exh. 2 (Excerpts of Trans. of 5/31/13 Depo. of Ka`iana Haili (“Defs.’ Responsive Excerpts of Haili 5/31/13 Depo.”) at 288.]
23

“when a Hawaiian woke up, the head male of the household would go to a small building called the hale mua, or the men’s house. There he would feed his gods.” [Pltfs.’ CSOF, Decl. of Sharla Manley (“Manley Decl.”), Exh. I (Excerpts of Trans. of 5/31/13 Depo. of Ka`iana Haili (“Pltfs.’ Excerpts of Haili 5/31/13 Depo.”)) at 247.] This occurred on a daily basis. [Id. at 342.]
Defendants argue that Plaintiffs have not established that the practices at issue are their religious exercises, as opposed to the religious exercises of third-parties. Thus, Defendants argue that the Tengan Report and Haili’s testimony are not enough to meet Plaintiffs’ burden on summary judgment because they merely establish that certain religious protocols could be religious exercises for a practitioner of the Native Hawaiian religion. Further, Defendants argue that there is a dispute of material fact as to whether the practices at issue in this case are religious, as opposed to cultural, or lifestyle, practices. [Defs.’ Amended Concise Statement of Facts in Supp. of Their Response to Pltfs.’ Motion, filed 1/6/14 (dkt. no. 464) (“Defs.’ Responsive CSOF”), at ¶¶ 1-4.] Defendants rely on Haili’s testimony that, the practices of the Native Hawaiian religion vary among islands, among districts within an island, and even among families. [Id. (citing Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 244.] Defendants also rely on Haili’s testimony
24

that, “I don’t consider it a culture and I don’t consider it a religion. My easiest western word is lifestyle.” [Id. (quoting Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 304).]
First, Defendants are correct that Plaintiffs did not submit any declarations with Plaintiffs’ CSOF describing their individual religious exercises. In ruling upon Plaintiffs’ Motion, this Court is not limited to considering the evidence that Plaintiffs submitted with Plaintiffs’ CSOF. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” (emphasis added) (citation and quotation marks omitted)). This Court will therefore consider Plaintiffs’ declarations submitted with the Joint Plaintiffs’ Amended Separate Concise Statement of Facts in Opposition to Defendants’ Motion (“Joint Plaintiffs’ Responsive CSOF”), [filed 1/6/14 (dkt. no. 466),] in ruling on Plaintiffs’ Motion.
Plaintiff Davis’s declaration states, in pertinent part:
8. I sincerely believe that I must pray, chant and dance hula to express my sincerely held Native Hawaiian religious beliefs.
. . . . 10. I sincerely believe these prayers, chants, and hula must be done with other Native Hawaiian practitioners, as a group, to foster mana.
25

. . . . 12. I sincerely believe that nature is the home of both ancestral spirits and Hawaiian deities. I also believe that ho`ailona, or signs from the gods, are communicated through nature. 13. Because our akua (gods) are naturebased, I must worship outdoors. 14. I sincerely believe that Hawaiian spiritual practices are not limited to a certain day of the week. Instead Hawaiian religion must be practiced on a daily basis. [Joint Pltfs.’ Responsive CSOF, Decl. of Richard Davis (“Davis Decl.”) at ¶¶ 8-14.] The other Plaintiffs who have a pending RLUIPA claim based on the denial of daily, outdoor, group worship (collectively, “the Daily Outdoor Worship Plaintiffs”) submitted substantively identical declarations on this issue.15 [Galdones Decl. at ¶¶ 10-17; Joint Pltfs.’ Responsive CSOF, Decl. of Michael Hughes (“Hughes Decl.”) at ¶¶ 8-14; id., Decl. of
15 For purposes of this order, the Daily Outdoor Worship Plaintiffs are: Plaintiffs Davis, Galdones, Hughes, Kaahu, and Kane. This Court previously dismissed Plaintiff Keawe’s federal claims based on daily religious congregation for failure to exhaust his administrative remedies. 4/11/13 Order, 2013 WL 1568425, at *13. In light of Plaintiff Holbron’s security status, which is different than that of the other Plaintiffs, Plaintiff Holbron does not challenge Defendants’ failure to give him daily access to a sacred outdoor space. [Mem. in Supp. of Holbron’s Counter-Motion at 1 & n.1.] Plaintiff Poaha also has a pending RLUIPA claim regarding the ability to engage in daily, outdoor, group worship. As stated, supra Discussion section I, Plaintiff Poaha does not have pending claims seeking prospective declaratory and injunctive relief in light of his transfer to Halawa.
26

Damien Kaahu (“Kaahu Decl.”) at ¶¶ 8-15; id., Decl. of James Kane III (“Kane Decl.”) at ¶¶ 12-18.]
Second, this Court cannot find that Haili’s deposition testimony creates a genuine issue of fact as to the question of whether daily, outdoor, group worship is a “religious exercise” for purposes of the Daily Outdoor Worship Plaintiffs’ RLUIPA claim. Defendants take Haili’s testimony about lifestyle as opposed to religion out of context. Haili gave that testimony during the following exchange:
Q. And would the hula and the chant class, would that be considered purely a religious programming [sic] or is there a cultural aspect to it, can you even parse that out?
A. No, you can’t really separate our culture from our, what the western deems religious. It is all the same. Our lifestyles are interspersed with our deities, our ancestral elevated family deities, aumakua or family protectors, all those things are interspersed into our daily lives as a lifestyle. I don’t consider it a culture and I don’t consider it a religion. My easiest western word is lifestyle. [Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 303-04.] Haili’s testimony does not support Defendants’ position that the practices at issue in this case may not be religious exercises because they are cultural or lifestyle practices. Haili testified that practitioners of the Native Hawaiian religion interweave their religion and culture in their daily lives, and therefore he would not characterize something as being only a religious practice. This testimony, taken in the context of
27

Haili’s testimony as a whole, supports the Daily Outdoor Worship Plaintiffs’ position.
Nor does Haili’s testimony that there are variances in the individual practices of practitioners of the Native Hawaiian religion support Defendants’ position. Haili acknowledged differences in practice, [id. at 244,] but he stated that many of these differences are due to the fact that the deity who the practitioner honored varied depending on who the practitioner’s ancestors were.
If you were a farmer, your highest deity that you would look to would be Lono, the god of agriculture.
If you were a fisherman, the deity you would look to would be Kanaloa, the ocean.
If you were a navigator, the stars, and . . . there are so many variances on that. And that’s just the highest deity. [Id. at 246-47.] Although the deities may have differed, practitioners of the Native Hawaiian religion shared some common practices. For example, the male head of a household would go to the hale mua when he woke up to feed his gods. [Id. at 247.] Even viewing the record in the light most favorable to Defendants, this Court finds that there is no genuine dispute of material fact as to the issue of whether daily, outdoor, group worship is a religious exercise for purposes of Count XXII. See Fed. R. Civ. P. 56(a). This Court therefore GRANTS Plaintiffs’ Motion insofar as this Court FINDS that, as to the Daily Outdoor
28

Worship Plaintiffs, group worship outdoors, on a daily basis, is a religious exercise for purposes of RLUIPA.
B. Observance of Makahiki Count XXIII alleges that Defendants violated RLUIPA
when they banned Plaintiffs16 from observing “the opening and closing days of the Makahiki Season in 2009-2011 with specific religious protocol.” [Second Amended Complaint at ¶¶ 439, 442, 445.] The Second Amended Complaint also alleges:
The ceremonies marking the beginning and end of Makahiki Season includes the following customary and traditional activities critical to the Native Hawaiian faith: a) a sunrise service; b) a twohour session dressing the image of Lono, and preparing offerings and giving offerings, including chanting and dancing; c) a one-hour procession; d) a 30-minute opening prayer; e) a 1.5-hour session of traditional games; f) a twohour session of chanting, prayer, and an awa ceremony; g) a three-hour ceremonial feast, food to be prepared by inmates serving the following ceremonial foods, ia ulaula (red fish), taro, sweet potato, pork, breadfruit, coconut, banana and the awa drink. These activities should be performed outdoors by all practitioners, as well as attendance and presence of a kahu or other religious leaders. [Id. at ¶ 49.] Plaintiffs’ Motion states that Plaintiffs requested authorization to observe the opening and closing of the Makahiki Season with most of these religious protocols, and they sought to have access to “their sacred garments, purification items, communal sacred items and an akua loa to assist them in
16 All Plaintiffs’ RLUIPA claims regarding the observance of Makahiki are properly before this Court.
29

their worship activities.” [Mem. in Supp. of Pltfs.’ Motion at 31.] Plaintiffs’ Motion ultimately requests a finding that “the observance of the opening and closing days of the Makahiki Season with certain religious protocol and sacred items as requested by Plaintiffs” is a religious exercise for purposes of RLUIPA. [Id. at 31-32.]
In support of this request, Plaintiffs rely on the following portions of the Tengan Report:
34. Makahiki is a fundamental annual religious event for Native Hawaiians, allowing them to honor Lono, the deity of peace, agriculture, fertility, and medicine.
35. The Makahiki season is a three to four month period signaled by the rising of the Makali`i (Pleiades) in October and/or November each year and begins a season of peace following the harvest. The season typically ends following the setting of Makali`i in February and/or March.
. . . . 37. Observance of the opening day and closing day of the Makahiki season are integrally important to Native Hawaiian religious and spiritual beliefs. 38. Traditionally, the akua loa, a 16-foot pole with a carved representation of Lono at the top and a crosspiece hung with sheets of tapa, fern and feather leis, was carried around each island from district to district, with the people paying tribute to the ruling chief and offering gifts in the form of food, crafts, featherwork, stone implements, lauhala mats and other products. Games and competitions between villages displayed the physical and mental prowess of the people. 39. Native Hawaiian religious practitioners may require ceremonial foods for offerings to
30

Lono. The use of such foods is based upon religious beliefs and practices first established by Native Hawaiians prior to 1778.
40. While the protocol in observing the opening and closing days of Makahiki is based upon religious beliefs and practices first established by Native Hawaiians prior to 1778, the specific practices and protocol depend on the practitioner’s island and/or ahupua`a (traditional land division).
41. Common practices accepted by most Native Hawaiian religious practitioners in observing the opening and closing days of Makahiki include but are not limited to prayers, chanting, dancing, offerings, cleansing ceremonies, `awa ceremonies, games and competitions and ceremonial feasts. [Tengan Report at ¶¶ 34-41.] Defendants admit that “Makahiki observance can be a practice of Native Hawaiians but specific practices vary widely.” [Defs.’ Responsive CSOF at ¶ 24-28 (emphasis in original).17] Defendants also made qualified admissions that the religious observance of the opening and closing days of the Makahiki season originated prior to 1778 and that there are common practices associated with the opening and closing observances. [Pltfs.’ CSOF at ¶¶ 32-33;18 Defs.’ Responsive CSOF at ¶¶ 32-33.] Defendants admit that giving special foods as a sacrament and partaking in representative
17 Defendants’ Responsive CSOF contains several instances where a single paragraphs responds to multiple paragraphs in Plaintiffs’ CSOF.
18 Plaintiffs’ CSOF paragraph 33 lists the examples of common Makahiki practices identified in paragraph 41 of the Tengan Report.
31

pieces are part of the observance of Makahiki, but they argue that “a communal feast was not traditionally observed” and “[t]he sacrament consisted of whatever was available to the practitioners.” [Defs.’ Responsive CSOF at ¶ 29-31 (citing Lewis Decl., Exh. 1 (Excerpts of Trans. of 5/8/13 Depo. of Ka`iana Haili (“Defs.’ Responsive Excerpts of Haili 5/8/13 Depo.”)) at 27-30, 186-88; Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 316).] Defendants also argue that, where a feast is observed for the Makahiki season, there is no required menu. [Pltfs.’ CSOF at ¶ 37; Defs.’ Responsive CSOF at ¶ 37.]
Plaintiffs’ declarations describe their beliefs regarding the observance of the Makahiki season. [Davis Decl. at ¶¶ 57-65; Galdones Decl. at ¶¶ 50-58; Hughes Decl. at ¶¶ 48-56; Kaahu Decl. at ¶¶ 53-61; Decl. of Robert A. Holbron, filed 12/20/13 (dkt. no. 436-4) (“Holbron Decl.”) at ¶¶ 25-32; Kane Decl. at ¶¶ 66-76; Keawe Decl. at ¶¶ 46-56.] Plaintiff Davis states, inter alia, that he “sincerely believe[s] that [he] must observe the opening and closing days of Makahiki with an outdoor sunrise ceremony, prayers, chanting, dancing, offerings, cleansing ceremonies, drinking `awa ceremonies, games and competitions and ceremonial feasts including the partaking of special foods to honor the God, Lono.” [Id. at ¶ 61.] The other Plaintiffs’ declarations contain substantively identical statements. [Galdones Decl. at ¶ 54; Hughes Decl. at ¶ 52; Kaahu
32

Decl. at ¶ 57; Holbron Decl. at ¶¶ 27-29; Kane Decl. at ¶ 70; Keawe Decl. at ¶ 50.]
Haili testified that there are nine sacramental offerings for Lono: “[f]resh water, awa, pig, red fish, sweet potato, banana, taro, ulu” and lama wood. [Defs.’ Responsive Excerpts of Haili 5/8/13 Depo. at 27-28.] He described the giving of the sacrament during Makahiki, as: “after we fed the gods and have given the offerings on the lele, the altar, we’ve also taken a certain amount of those, not all of those foods, but the ones that we can afford.” [Id. at 28.] They pray and then consume the sacrament to “ingest[] the God.” [Id. at 29.] Haili testified that this is distinct from the lu`au (feast). A lu`au has the spiritual function of blessing something. Haili testified that a lu`au associated with a ceremony can be very small or very large, “depending on what you have to share,” and it is not meant to be “a hardship on a community or anything.” [Id. at 30-31.] In Hawai`i, if practitioners were not able to have a full feast “that was okay” because the purpose is to “fe[e]d the God.” [Id. at 187.]
Haili testified that Makahiki was not traditionally observed with a feast. [Id. at 30.] In contrast, he also testified that, at Makahiki celebrations throughout Hawai`i, “probably the majority of the foods would be the same,” including traditional lu`au foods of “lau lau, kalua pig, poke, fresh
33

fish”, and there would also be the foods “that have to do with the deity.” [Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 316.] The foods at a celebration, however, are subject to availability. See, e.g., id. (“We’re not going to overfish if it’s not available.”). When asked to describe the importance of having a communal or celebratory meal after the Makahiki observance, Haili responded, “[i]t’s on the lower profile of the scale.” [Defs.’ Responsive Excerpts of Haili 5/8/13 Depo. at 185-86.]
Even viewing all of the evidence in the light most favorable to Defendants, this Court finds that there is no genuine issue of material fact that the observance of the opening and closing days of the Makahiki season, as described in the Tengan Report,19 is a religious exercise for purposes of
19 Defendants contest Plaintiffs’ CSOF regarding the timing of the observance of the Makahiki season. [Pltfs.’ CSOF at ¶ 26; Defs.’ Responsive CSOF at ¶ 24-28.] In support of their argument that the timing varies, Defendants submit various schedules for Makahiki celebrations that defense counsel identified on the internet. [Lewis Decl., Exh. 5 (Decl. of Jamie D. Guzman (“Guzman Responsive Decl.”)), Exh. 1.] This Court notes that eight of the ten Makahiki events listed in the Guzman Responsive Declaration occurred in November, which is consistent with Dr. Tengan’s description of the opening of the Makahiki season as occurring in October or November. The other two events occurred in January, which is not consistent with Dr. Tengan’s description. This Court, however, finds that the Guzman Responsive Declaration and its exhibit do not raise a genuine issue of material fact as to when practitioners of the Native Hawaiian religion observe the Makahiki season. The schedules of the events do not indicate that the events are religious celebrations of the Makahiki season. Further, some of the
(continued...) 34

Count XXIII (Plaintiffs’ RLUIPA claim regarding the observance of Makahiki). This Court also finds that there is no genuine issue of material fact as to the following components of the observance of the opening and closing of the Makahiki season: an outdoor sunrise ceremony, prayers, chanting, dancing, offerings, cleansing ceremonies, `awa drinking ceremonies, games and competitions, ceremonial feasts, and sacramental offerings of special foods to honor Lono. This Court finds that, for purposes of Plaintiffs’ RLUIPA claim regarding the observance of Makahiki, these components, in general, constitute religious exercises. This Court GRANTS Plaintiffs’ Motion as to these matters.
As to any other elements of the observance of Makahiki and as to the specific content and duration of the outdoor sunrise ceremony, prayers, chanting, dancing, offerings, cleansing ceremonies, `awa drinking ceremonies, games and competitions, ceremonial feasts, and sacramental offerings, this Court finds that there are genuine issues of material fact which preclude summary judgment on the issue of what is necessary to
19(...continued) descriptions expressly acknowledge the traditional Makahiki season that began with the rising of the Pleiades and lasting approximately four months. See id., Aloha International Makahiki Festival 2002; id., Star Advertiser article “Makahiki festivities a tribute to Hawaiian culture.” Thus, Defendants’ submission does not raise a triable issue of fact as to the question of when the Makahiki season is celebrated by practitioners of the Native Hawaiian religion.
35

constitute religious exercises. This Court DENIES Plaintiffs’ Motion as to these matters.
C. Access to Sacred Items Count XXIV alleges that Defendants violated RLUIPA when
they banned Plaintiffs20 from accessing the following sacred items: malo, kihei and pau (native garments), block of lama wood, kapa, pa`a kai (sea salt), apu (coconut shell bowl), ti shoots and leafs, kala (seaweed), `olena (yellow ginger), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), `ohe hano ihu (bamboo nose flute), pu ohe (bamboo shell horn), and moena (floor mats made of woven lauhala, grasses, natural fibers).
[Second Amended Complaint at ¶¶ 453, 459.] The Second Amended Complaint also alleges that access to these sacred items is “[a] critical tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith.” [Id. at ¶ 50.]
According to Plaintiffs’ Motion, they requested access to malo, kihei, pā`ū, kūpe`e, and lei for use in all religious activities and ceremonies, including personal prayer. Plaintiffs
20 All Plaintiffs’ RLUIPA claims regarding access to sacred items are properly before this Court. This Court notes that, because Plaintiff Holbron was in administrative segregation during the relevant time period, Count XXIV alleges that Defendants violated RLUIPA by banning Plaintiff Holbron from meeting with a kahu who would facilitate his access to the sacred items at issue in Count XXIV. [Second Amended Complaint at ¶¶ 456, 462.]
36

also argue that both Dr. Tengan and Haili recognize that practitioners of the Native Hawaiian religion sometimes use a small, sacred object or amulet, which represents and/or manifests the mana of their ancestors and deities, in their religious rituals and protocol.21 [Mem. in Supp. of Motion at 27-28.] Plaintiffs also requested access to the following items for purification in protection rituals: ti leaf, sea salt, `ōlena, and moena. [Id. at 28.] The remaining items identified in Count XXIV are communal items for group worship activities. [Id. at 28-29.]
1. Ceremonial Garments & Amulets Defendants admit that practitioners of the Native Hawaiian religion may wear certain clothing, including malo, kihei, pā`ū, kūpe`e, and lei to express their faith and religious beliefs. [Pltfs.’ CSOF at ¶ 44; Defs.’ Responsive CSOF at ¶ 4448 (citing Defs.’ Responsive CSOF at ¶ 35 (citing Tengan Report at ¶ 10)).] Plaintiff Davis states that he sincerely believes he needs daily access to, inter alia, a malo, kihei, pā`ū, kūpe`e,
21 Count XXIV does not expressly mention kūpe`e, lei or amulets/personal sacred objects. As this Court noted in connection with Plaintiffs’ motion for a preliminary injunction, the relief that Plaintiffs seek as to kūpe`e, lei, and amulets/personal sacred objects “is of the same character as some of the relief that Plaintiffs ultimately seek in this action.” See Davis v. Abercrombie, 903 F. Supp. 2d 975, 995 (D. Hawai`i 2012). Thus, Plaintiffs’ arguments regarding kūpe`e, lei, and amulets/personal sacred objects is within the scope of their RLUIPA claim in Count XXIV. See id.
37

and lei “for Native Hawaiian worship activities,” and he believes that he must wear these items during religious rituals and protocol. [Davis Decl. at ¶¶ 30, 43.] Further, being forced to share his malo, kihei, and pā`ū with other practitioners violates his religious beliefs because the malo and the kihei contain his mana and should be kept in his cell at all times. [Id. at ¶¶ 35, 45.] The other Plaintiffs’ declarations contain substantively identical statements. [Galdones Decl. at ¶¶ 32, 39, 42-44; Hughes Decl. at ¶¶ 30, 35, 37-39; Kaahu Decl. at ¶¶ 32, 38, 4043; Holbron Decl. at ¶¶ 63-64; Kane Decl. at ¶¶ 44, 54, 59-61; Keawe Decl. at ¶¶ 27, 38-41.]
Defendants acknowledge that amulets may be used by practitioners of the Native Hawaiian religion. [Pltfs.’ CSOF at ¶ 53; Defs.’ Responsive CSOF at ¶ 53.] Haili testified that a Native Hawaiian practitioner’s personal amulet connects him to his ancestors and his “innate religious, . . . spiritual beliefs.” [Pltfs.’ Excerpts of Haili 5/8/13 Depo. at 265.]
The Davis Declaration states that an amulet is a “personal sacred object,” and he sincerely believes that it “should be made by [him] or passed down to [him] by a kahu, kumu, or kupuna, rather than purchased through a vendor.” [Davis Decl. at ¶¶ 35-36.] He sincerely believes that an amulet is necessary for his daily worship activities. [Id. at ¶ 30.] Davis previously possessed such an amulet, which a kumu gave him, but
38

Saguaro staff confiscated it. Davis used the amulet “for prayers and guidance and to sustain mana.” [Id. at ¶ 39.] The other Plaintiffs expressed similar beliefs regarding the role of amulets in their religious activities. [Galdones Decl. at ¶¶ 32, 39-40; Hughes Decl. at ¶¶ 30, 35-36; Kaahu Decl. at ¶¶ 32, 38-39; Holbron Decl. at ¶ 65 (stating only that “[t]he amulet is something that I sincerely believe should be made by me or passed down to me by a kahu, kumu, or kupuna”); Kane Decl. at ¶¶ 44, 5455, 56-58 (describing his beliefs and discussing his amulet that was damaged during a cell search); Keawe Decl. at ¶¶ 27, 28.]
Even viewing the record in the light most favorable to Defendants, this Court finds that there is no genuine issue of material fact as to whether Plaintiffs’ use of malo, kihei, pā`ū, kūpe`e, lei, and amulets/personal sacred objects is a religious exercise for purposes of RLUIPA.
2. Items for Protection and Cleansing Plaintiffs’ CSOF states:
50. Further, Native Hawaiian religious practitioners typically perform a cleansing ceremony prior to the commencement of their communal rituals and protocol as an essential expression of their religious belief and faith. Such ceremonies are based upon religious beliefs and practices first established by Native Hawaiians prior to 1778.
51. The following sacred items may be used for ritual purification: ti leaf, paakai (sea salt), olena (turmeric) and coconut oil. [Pltfs.’ CSOF at ¶¶ 50-51 (citing Tengan Report at ¶ 31; Pltfs.’
39

Excerpts of Haili 5/31/13 Depo. at 258, 273-74).] Defendants acknowledge that these can be practices of the Native Hawaiian religion. [Defs.’ Responsive CSOF at ¶ 50-52.]
Plaintiff Davis’s declaration states: 50. I sincerely believe that items used for
protection and cleansing must be on-hand every day.
51. Pa`akai (sea salt) is used for purification. Kala (seaweed) and `ōlena (yellow ginger) are used for cleansing and religious purification.
52. Ti leaf is used for protection. . . . . 56. I sincerely believe that I need a moena (floor mats made of woven lauhala, grasses, natural fibers) to connect to the earth during daily prayers. It transforms the space and it is sacred because it is made of lauhala which is a symbol of po or the afterlife. [Davis Decl. at ¶¶ 50-52, 56.] The other Plaintiffs’ declarations attest to substantively identical beliefs regarding items necessary for protection and cleansing. [Galdones Decl. at ¶¶ 45-47, 49; Hughes Decl. at ¶¶ 42-44, 47; Kaahu Decl. at ¶¶ 4648, 52; Holbron Decl. at ¶¶ 64-65; Kane Decl. at ¶¶ 62-65; Keawe Decl. at ¶¶ 42-45.] Even viewing the record in the light most favorable to Defendants, this Court finds that there is no genuine issue of material fact as to whether Plaintiffs’ use of pa`akai, kala,
40

`ōlena, ti leaf, and moena is a religious exercise for purposes of RLUIPA.
3. Items for Group Worship Activities Plaintiffs argue that the remainder of the sacred items identified in Count XXIV, [Second Amended Complaint at ¶¶ 453, 459, quoted supra,] are “communal items required for group worship activities.” [Mem. in Supp. of Pltfs.’ Motion at 28.] Plaintiffs assert that practitioners of the Native Hawaiian religion “must be able to access certain religious materials for daily use as an essential expression of their religious belief and faith.” [Pltfs.’ CSOF at ¶ 49 (citing Tengan Report at ¶ 30; Pltf.’s Excerpts of Haili 5/31/13 Depo. at 285-86).] Defendants respond that the items identified in Count XXIV are merely “‘examples’ of items that may be used by practitioners. Certain items are not required/may be substituted depending on availability.” [Defs.’ Responsive CSOF at ¶ 49 (some citations omitted) (citing Bush, et al. v. State of Haw., CV 04-00096 DAEKSC, Decl. of Ka`iana Haili in Supp. of Response to Motion to Enforce Settlement Agreement Entered on May 13, 2005, filed 11/10/09 (dkt. no. 87-7) (“Haili Bush Decl.”), at ¶ 14.b).] Haili’s declaration in Bush states, in pertinent part: [A]ll of the sacred items required of Makahiki observers will be available to the prisoners. The only exceptions are a kahili (pole with feathers, cloth, flora), `ohe ha eke `eke (percussion instrument), pu niu (small knee drum), and awa. Likewise, the kahili may be substituted with the
41

image of Lono (two large wooden poles and kapa cloth), which will be provided. The percussion instrument and small knee drum are traditionally used for a specific hula and not in observance of Makahiki as I was taught; therefore, these items are not needed for the November 28 ceremonies. . . . [Haili Bush Decl. at ¶ 14.b.] The Haili Bush Declaration only addresses the use of these items in Makahiki celebrations; the declaration does not address whether there are other uses for these items in the practice of the Native Hawaiian religion. Further, even if this Court accepts the Haili Bush Declaration as evidence that other items can be used as substitutes for some of the items at issue in Count XXIV, the availability of a substitute does not prove that the use of the original item is not a religious exercise. If the availability of substitutes is relevant, it is relevant to the issue of substantial burden. Thus, the Haili Bush Declaration does not raise a genuine issue of fact as to whether the communal worship items addressed in Count XXIV are part of the exercise of the Native Hawaiian religion in general. The Davis Declaration states, in pertinent part: I sincerely believe that I need to have daily access to the following sacred items for Native Hawaiian worship activities: . . . block of lama wood, kapa (cloth), . . . `apu (coconut shell bowl), ti shoots and leafs,[22] . . . , a kāhili
22 Plaintiffs addressed the use of ti leaves in their discussion of items necessary for purification and cleansing.
(continued...) 42

(pole with cylindrical top covered with feathers, cloth, flora and/or painted), pū kani (conch shell), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe kā`eke`eke (percussion instrument), pūniu (small knee drum), `ohe hano ihu (bamboo nose flute), [and] pū`ohe (bamboo shell horn) . . . . [Davis Decl. at ¶ 30.] The other Plaintiffs’ declarations attest to substantively identical beliefs regarding these items. [Galdones Decl. at ¶ 32; Hughes Decl. at ¶ 30; Kaahu Decl. at ¶ 32; Holbron Decl. at ¶ 63; Kane Decl. at ¶ 44; Keawe Decl. at ¶ 27.] Even viewing the record in the light most favorable to Defendants, this Court finds that there is no genuine issue of material fact as to whether Plaintiffs’ use of these items for communal group worship is a religious exercise for purposes of RLUIPA. 4. Summary of Ruling This Court GRANTS Plaintiffs’ Motion and FINDS that Plaintiffs’ use of each of the sacred items addressed in Count XXIV is a religious exercise for purposes of RLUIPA.
22(...continued) Although not expressly stated in Plaintiffs’ submissions, this Court assumes that Plaintiffs have specifically mentioned ti shoots in addition to ti leaves because ti shoots have a separate purpose from ti leaves.
43

D. Access to a Sacred Outdoor Space (Altar) Count XXV alleges that Defendants violated RLUIPA when
they banned Plaintiffs23 from “establishing an outdoor sacred space for worship.” [Second Amended Complaint at ¶¶ 467, 470.] The Tengan Report explains the significance of a stone altar for practitioners of the Native Hawaiian religion:
43. In ancient times, pu`uhonua [(place of refuge)] lands provided relief to lawbreakers and those who unintentionally violated religious rules known as kapu. Because pu`uhonua lands were sacrosanct and inviolable, a wrongdoer was protected from harm or death after entering a pu`uhonua.
44. On a smaller scale, many families maintained intergenerational pu`uhonua, known as Pohaku o Kane, where the family went to seek relief from death, illness, or other misfortunes through prayer and offerings to the family `aumakua.
45. In contrast to large pu`uhonua, the Pohaku o Kane consisted of a single stone altar, surrounded by cultivated greenery such as ti leafs. The proper stone for use as a Pohaku o Kane was revealed to each family through a dream or other omen.
23 The Plaintiffs who have a pending RLUIPA claim regarding access to a sacred outdoor space, including an altar, are Plaintiffs Davis, Galdones, Hughes, Kaahu, and Kane (collectively, “the Outdoor Altar Plaintiffs”). This Court dismissed Plaintiff Keawe’s federal claims based on access to an outdoor altar on exhaustion grounds. 4/11/13 Order, 2013 WL 1568425, at *13. In light of his administrative segregation status, Plaintiff Holbron does not contest Defendants’ failure to give him access to a sacred outdoor space. [Mem. in Supp. of Holbron’s Counter-Motion at 1 & n.1.] Plaintiff Poaha does not have any pending claims seeking prospective declaratory and injunctive relief.
44

46. Today, pu`uhonua and Pohaku o Kane continue to have cultural and religious significance as both symbols of redemption, and as important physical sites for religious ceremony and healing.
47. Accordingly, it is not uncommon for Native Hawaiian religious practitioners to seek out traditional pu`uhonua lands when performing important ceremonies, or to set up a Pohaku o Kane as a focal point for religious activities and healing. [Tengan Report at ¶¶ 42-47.] In addition, the Outdoor Altar Plaintiffs assert that:
65. Native Hawaiian religious practitioners also acknowledge the sunrise with ceremonies and prayers near large boulders or pohaku which commemorate the farthest point to the north and the farthest point to the south as the sun rises.
66. Consistent with the Pohaku o Kane concept, Kaina [sic] Haili has built a stone “kuahu” (altar for prayers and offerings) in his backyard.
67. Such an altar should be made from natural materials, such as rock.
68. Such an altar should be of interlinking rocks, approximately 4 feet by 4 feet in dimension.
69. Advisor Haili recommended that Saguaro accommodate the request for a stone altar. [Pltfs.’ CSOF at ¶¶ 65-69 (citing Pltfs.’ Excerpts of Haili 5/8/13 Depo. at 118-19, 161-62; Pltfs.’ Excerpts of Haili 5/31/13 Depo. at 253-54, 294-95, 297-98).] Defendants counter that these are merely Haili’s personal opinions. [Defs.’ CSOF at ¶ 67-69.] Defendants
45

acknowledge that “[a]n altar may be used for weekly sacraments or ceremonies, but daily access is ‘an exception.’” [Id. at ¶ 66 (citing Defs.’ Responsive Excerpts of Haili 5/8/13 Depo. at 135; Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 299).] In his deposition, Haili testified that the practice of having a stone altar in one’s yard or near one’s home was a prevalent practice “for practitioners that managed to have a continuity in their family, which is an exception, to have three or four generations living in the same roof like my family in Waimea was for many generations.” [Defs.’ Responsive Excerpts of Haili 5/8/13 Depo. at 135.] Thus, even the evidence that Defendants rely upon establishes that the use of an outdoor, stone altar was a common practice for at least some practitioners of the Native Hawaiian religion.
Plaintiff Davis’s declaration states: 17. I sincerely believe that I must have
access to at least two spiritually significant pohaku (rocks) to serve as a stone altar outside.
18. I sincerely belief that this sacred space should have plants that are significant spiritually and would not object to sharing this space with other faiths.
19. The stone altar is important because it is a symbolic place like a heiau (temple). This altar is also the physical space for making religious offerings.
20. In the same way that other religions are practiced in a church with religious symbols like a cross, the physical space of a stone altar or garden serves as a sacred space for prayer.
46

[Davis Decl. at ¶¶ 17-20.] All of the other Outdoor Altar Plaintiffs’ declarations contains substantively identical statements. [Galdones Decl. at ¶¶ 19-20, 22-24; Hughes Decl. at ¶¶ 17-20; Kaahu Decl. at ¶¶ 17-21; Kane Decl. at ¶¶ 22-26.]
Even viewing the record in the light most favorable to Defendants, this Court finds that there is no genuine issue of material fact as to whether the Outdoor Altar Plaintiffs’ use of a sacred outdoor space, with a stone altar, in general, is a religious exercise for purposes of RLUIPA. This Court, however, finds that there are genuine issues of material fact which preclude summary judgment as to the size and composition of the sacred space and the altar. This Court GRANTS Plaintiffs’ Motion insofar as this Court FINDS that the Outdoor Altar Plaintiffs’ use of a sacred outdoor space, with a stone altar, is a religious exercise for purposes of RLUIPA, but this Court DENIES Plaintiffs’ Motion as to the size and composition of the outdoor space and the altar.
E. Regular Access to a Spiritual Advisor Count XXVI alleges that Defendants violated RLUIPA when
they banned Plaintiffs24 from “meeting with a spiritual advisor
24 The relevant Plaintiffs for the RLUIPA claim regarding access to a spiritual advisor are Plaintiffs Holbron, Kane, and Keawe (collectively, “the Spiritual Advisor Plaintiffs”). This Court dismissed Plaintiffs Davis, Galdones, Hughes, Kaahu, and Poaha’s federal claims regarding access to a spiritual advisor on exhaustion grounds. 4/11/13 Order, 2013 WL 1568425, at *13.
47

on a regular basis.” [Second Amended Complaint at ¶¶ 475, 478.] The Spiritual Advisor Plaintiffs assert:
73. From an early age, young Native Hawaiians learn through listening, watching, and participating in community life. Similarly, spiritual values and teachings are passed from generation to generation through the extended family and community, primarily through direct contact with those who are older and wiser and trained in spiritual matters. Thus, the presence and guidance of kūpuna [sic], kahu, kumu (respected elders or teachers) is vital to the transmission of spiritual knowledge to the Native Hawaiian community.
74. Native Hawaiian religion was mostly handed down through chanting, oral storytelling.
75. There is a traditional Hawaiian saying, “He alo a he alo,” meaning “face-to-face,” which demonstrates the importance of direct transmission of prayer, chant, dance, and other religious practices. Thus, such prayers, chants, dance, and religious protocol cannot be learned from a book, but must be learned from a kupuna, kahu, kumu (respected elder or teacher) or others to whom the prayers, chants, hula, and protocol have been personally transmitted.
76. Religious activities should be guided by a qualified kahu, kumu, or kupuna. However, at the very least, Native Hawaiian religious activities should be practiced and performed by participants in a communal setting to ensure that all participants are performing prayer, chant, dance and religious protocols properly and gain knowledge of their deeper meaning. [Pltfs.’ CSOF at ¶¶ 73-76 (citing Tengan Report at ¶¶ 17, 19, 22; Pltfs.’ Excerpts of Haili 5/31/13 Depo. at 248).] Defendants respond that these statements merely represent Dr. Tengan’s and
48

Haili’s personal opinions.25 [Defs.’ Responsive CSOF at ¶¶ 7376.] Defendants, however, have not identified any specific facts showing there is a genuine issue for trial as to whether regular access to a spiritual advisor is a religious exercise for purposes of the Spiritual Advisor Plaintiffs’ RLUIPA claim. See Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189 (9th Cir. 2013) (“to avoid summary judgment, the non-movant [must] ‘designate specific facts showing that there is a genuine issue for trial’” (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986))).
Plaintiff Holbron stated in his declaration that he sincerely believes that he must meet with a spiritual leader of the Native Hawaiian religion as part of his religious worship. [Holbron Decl. at ¶ 51.] He also emphasized that he believes mana is created in group prayer and chanting. [Id. at ¶ 59.] Plaintiff Keawe described the same beliefs. [Keawe Decl. at ¶¶ 14, 77.]
25 Defendants also object on the ground that “[a] spiritual advisor is not required to observe Makahiki.” [Defs.’ Responsive CSOF at ¶ 76 (citation omitted).] Count XXVI, however, addresses regular access to a spiritual advisor in general, not only during specific celebrations, such as the Makahiki. Defendants also raise arguments about what Saguaro provides to the practitioners of the Native Hawaiian religion who are in the general population, [id.,] but these arguments relate to the remainder of the RLUIPA analysis and are inapplicable to the religious exercise analysis.
49

Plaintiff Kane stated in his declaration that he sincerely believes that religious “prayers, chants, hula, and protocol must be learned from a kupuna, kahu, kumu (respected elders, teachers) or one to whom the prayers, chants, hula and protocol have been transmitted.” [Kane Decl. at ¶ 13.] Plaintiff Kane also emphasized his belief that mana is created in group prayer, chanting, and hula. [Id. at ¶¶ 14-15.] For example, Kane stated that, because Red Rock did not allow the practitioners of the Native Hawaiian religion to gather and to meet with a spiritual advisor, they “were not able to learn all the chants and protocols [they] needed to know for Makahiki.” [Id. at ¶ 39.] He also states, “[b]ecause I am not in Hawaii, I cannot request regular visits from a kumu because there is no one I know in Arizona who is trained in Native Hawaiian religion. I do not have the financial means to bring someone from Hawaii to Arizona.” [Id. at ¶ 92.]
Based on the evidence that Plaintiffs presented about the Native Hawaiian religion in general, as well as the evidence presented specifically addressing the claims regarding access to a spiritual advisor, the Spiritual Advisor Plaintiffs have clearly established the significance of a spiritual advisor to a practitioner of the Native Hawaiian religion. Defendants have not identified any specific evidence that raises a genuine issue for trial as to the question of whether regular access to a
50

spiritual advisor is a religious exercise for purposes of the Spiritual Advisor Plaintiffs’ RLUIPA claim. This Court therefore GRANTS Plaintiffs’ Motion IN PART as to Count XXVI and FINDS that the Spiritual Advisor Plaintiffs’ regular access to a spiritual advisor is a religious exercise for purposes of their RLUIPA claim. This Court, however, finds that there are genuine issues for trial as to the question of what constitutes “regular” access and the question of what type of access is necessary for the Spiritual Advisor Plaintiffs’ religious exercise. This Court DENIES Plaintiffs’ Motion as to those aspects of Count XXVI.
F. Summary of Ruling on Plaintiffs’ Motion Plaintiffs’ Motion is GRANTED IN PART AND DENIED IN
PART. This Court GRANTS Plaintiffs’ Motion insofar as this Court FINDS as follows: •Daily, outdoor, group worship is a religious exercise for
purposes of the Outdoor Worship Plaintiffs’ RLUIPA claim (Count XXII). •The observance of the opening and closing days of the Makahiki season, during the time frame described in the Tengan Report, is a religious exercise for purposes of Plaintiffs’ RLUIPA claim regarding the observance of Makahiki (Count XXIII). Further, the following components of the observance of the opening and closing days of the Makahiki season are religious exercises: an outdoor sunrise ceremony, prayers, chanting, dancing, offerings, cleansing ceremonies, `awa drinking ceremonies, games and competitions, ceremonial feasts, and sacramental offerings of special foods to honor Lono. •The use of each of the sacred items addressed in Plaintiffs’ RLUIPA claim regarding access to sacred items (Count XXIV) is a religious exercise for purposes of RLUIPA.
51

•The Outdoor Altar Plaintiffs’ use of a sacred outdoor space, with a stone altar, is a religious exercise for purposes of their RLUIPA claim (Count XXV).
•The Spiritual Advisor Plaintiffs’ regular access to a spiritual advisor is a religious exercise for purposes of their RLUIPA claim (Count XXVI). This Court DENIES Plaintiffs’ Motion insofar as this
Court FINDS that there are genuine issues for trial as to the following issues: •whether any other elements of the observance of Makahiki are
religious exercises for purposes of Count XXIV, and what is the specific content and duration required for the outdoor sunrise ceremony, prayers, chanting, dancing, offerings, cleansing ceremonies, drinking `awa ceremonies, games and competitions, ceremonial feasts, and sacramental offerings; •what size and composition is required for the Outdoor Altar Plaintiffs’ religious exercise; and •what constitutes “regular” access to a spiritual advisor, and what type of access is necessary for the Spiritual Advisor Plaintiffs’ religious exercise.
This Court now turns to the merits of Defendants’ Motion. III. Defendants’ Motion as to Plaintiffs
in the General Inmate Population Defendants’ Motion seeks summary judgment in
Defendants’ favor as to all of Plaintiffs’ claims. As noted supra, although Plaintiff Holbron alleges claims regarding religious access during restricted custody, those claims are outside of the scope of this order because Plaintiff Holbron is no longer in restricted custody and is currently in the general inmate population, as are the other Plaintiffs.
52

A. Claims Regarding Daily, Outdoor, Group Worship
1. RLUIPA In order to prevail on their RLUIPA claim, the Daily Outdoor Worship Plaintiffs must establish a prima facie case that Defendants’ policy/practice of denying them the ability to participate in daily, outdoor, group worship, preferably at dawn, constitutes a substantial burden on their religious exercise. See Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005) (citing 42 U.S.C. § 2000cc-2(b)). “If [the Daily Outdoor Worship Plaintiffs] establish[] the prima facie existence of such a substantial burden, on which [they] bear[] the burden of persuasion, [Defendants] shall bear the burden of persuasion to prove that any substantial burden on [the Daily Outdoor Worship Plaintiffs’] exercise of [their] religious beliefs is both ‘in furtherance of a compelling governmental interest’ and the ‘least restrictive means of furthering that compelling governmental interest.’” See id. at 995 (quoting 42 U.S.C. § 2000cc–1(a)) (citing 42 U.S.C. § 2000cc–2(b)). Having found that daily, outdoor, group worship is a religious exercise for purposes of this RLUIPA claim, this Court turns to the “substantial burden” analysis. The Ninth Circuit has stated:
Although RLUIPA does not define what constitutes a “substantial burden” on religious exercise, see 42 U.S.C. § 2000cc–5, in the context of a land use suit brought under RLUIPA, we have
53

explained that “for a land use regulation to impose a ‘substantial burden,’ it must be ‘oppressive’ to a ‘significantly great’ extent. That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise,” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). In addition, the Supreme Court has found a substantial burden as “where the state . . . denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717–18, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981) (ruling in First Amendment context). Although such “compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Id. at 718, 101 S. Ct. 1425. Id. (alterations in Warsoldier). Defendants acknowledge that inmate practitioners of the Native Hawaiian religion are not permitted to engage in daily, outdoor, group worship. Defendants argue that this is not a substantial burden on the Daily Outdoor Worship Plaintiffs’ religious exercise because Defendants provide them with sufficient opportunities to engage in group religious activities. According to Defendants’ evidence, Saguaro allows general population inmates, who do not pose a safety and security risk, to participate in weekly religious programming. [Thomas Decl. at ¶ 13.] At Saguaro, there are weekly hula classes, weekly ritual/religion classes, and weekly language classes available to inmates who practice the Native Hawaiian religion. Each class is 1.5 hours. [Id. at ¶ 46.] Defendants emphasize the
54

practitioners’ ability to pray on their own during their outdoor recreation time. [Id. at ¶ 34.]
First, Plaintiffs dispute the availability of the regular classes that Defendants rely upon. For example, Warden Thomas testified in deposition that, when Plaintiff Davis submitted a grievance about being removed from the Hawaiian language class, the Saguaro staff denied the grievance because, inter alia, Plaintiff Davis was on a waiting list for a language class and the language class “has nothing to do with [his] religion.” [Manley Responsive Decl., Exh. 18 (Excerpts of Warden Todd Thomas’s 4/5/13 Depo. (“Pltfs.’ Excerpts of Thomas Depo.”)) at 244-46; id., Exh. 21 (Pltf. Davis’s Inmate/Resident Grievance dated 9/27/11).]
Further, Plaintiff Davis states: 24. Although Saguaro offers some Native
Hawaiian classes, I have suffered spiritual injury because these classes have not allowed me to engage in my sincerely-held religious beliefs about group worship.
25. This weekly session is held indoors, not outside which is where I sincerely believe I must worship.
26. I am permitted to attend one (1) weekly Native Hawaiian class, either a hula class or a chants/rituals class. Although I must practice both hula and chant to exercise my Native Hawaiian religious beliefs, I am forced to do one or the other by the prison.
27. There is often not enough room in the Native Hawaiian classes for all of us who want to participate.
55

28. Furthermore, I suffered spiritual injury when the prison had a special list that it used to determine who could come to Native Hawaiian class and who could not. [Davis. Decl. at ¶¶ 24-28 (emphases in original).] He states that the inability to engage in daily, outdoor, group worship, “preferably during sunrise,” has caused him “spiritual injury.” [Id. at ¶¶ 22-23.] The other Daily Outdoor Worship Plaintiffs describe substantively identical beliefs and experiences about daily, outdoor, group worship in general. [Galdones Decl. at ¶¶ 26-31; Hughes Decl. at ¶¶ 22-28;26 Kaahu Decl. at ¶¶ 25-30;27 Kane Decl. at ¶¶ 32-35, 37-38, 41-43.28] Warden Thomas acknowledges that the Native Hawaiian hula class and the Native Hawaiian ritual class are held in the Saguaro chapel, which only holds up to sixty people. The chapel is the largest room available for Saguaro programs. [Thomas Reply Decl. at ¶¶ 47-48.] There are 179 inmates at Saguaro that have registered as practitioners of the Native Hawaiian religion. [Id. at ¶ 11.]
26 Plaintiff Hughes states that he has “never been allowed to attend [the Hawaiian language class] regularly. [He] was told by prison officials that [he] was on a waiting list for it over a year ago.” [Hughes Decl. at ¶ 29.]
27 Plaintiff Kaahu states that he “suffered spiritual injury” when he was in a mandatory program that was “held at the same time as Native Hawaiian class.” [Kaahu Decl. at ¶ 31.]
28 Plaintiff Kane states that neither Red Rock nor Saguaro allowed him to participate in daily, outdoor, group worship. [Kane Decl. at ¶¶ 32-33, 43.]
56

Insofar as Defendants rely on the weekly classes as support for their argument that the policy/custom of prohibiting daily, outdoor, group worship for practitioners of the Native Hawaiian religion is not a substantial burden, there is a genuine issue of fact as to whether the Daily Outdoor Worship Plaintiffs actually have access to those classes. Further, to the extent that their religious exercise requires daily, group worship outdoors, Defendants’ policy/custom of providing weekly classes indoors constitutes a complete prohibition of this religious exercise. The Ninth Circuit has stated:
We have little difficulty in concluding that an outright ban on a particular religious exercise is a substantial burden on that religious exercise. See Murphy v. Mo. Dep’t of Corrs., 372 F.3d 979, 988 (8th Cir. 2004) (concluding that a ban on “communal worship” substantially burdened inmate’s religious exercise, thereby precluding summary judgment); Meyer v. Teslik, 411 F. Supp. 2d 983, 989 (W.D. Wis. 2006) (holding that ban on group worship substantially burdened inmate’s religious exercise and noting that, “It is difficult to imagine a burden more substantial than banning an individual from engaging in a specific religious practice”). Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008). In light of this legal precedent and the evidence presented in this case, this Court concludes that Defendants are not entitled to summary judgment on the issue of whether their policy/custom constitutes a substantial burden on the Daily Outdoor Worship Plaintiffs’ religious exercise.
57

Defendants argue that, even assuming, arguendo, that the Daily Outdoor Worship Plaintiffs can establish their prima facie case, Defendants are entitled to summary judgment as to Count XXII because Defendants’ policy/custom of prohibiting daily, outdoor, group worship is the least restrictive means of furthering a compelling governmental interest. Defendants argue that prison resources and scheduling do not permit them to allow the practitioners of the Native Hawaiian religion from gathering outdoors on a daily basis. They argue that Saguaro uses six additional staff for each of the four annual outdoor gatherings for the practitioners of the Native Hawaiian religion. Allowing daily outdoor worship for them would require the permanent addition of six staff persons. Further, Saguaro would be required to allow daily worship for the thirteen other religious groups in the facility. [Thomas Decl. at ¶¶ 38-39.] Defendants contend that “[t]here are not enough hours in the day to accomplish daily worship for all religious groups on a daily basis on top of chow time, head counts, and other types of programming.” [Id. at ¶ 39.]
“Prison security is a compelling governmental interest.” Greene, 513 F.3d at 988 (citing Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)). The Ninth Circuit, however, has also stated:
“[N]o longer can prison officials justify restrictions on religious exercise by simply
58

citing to the need to maintain order and security in a prison.” Greene v. Solano County Jail, 513 F.3d 982, 989 (9th Cir. 2008). They now must demonstrate that they “actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier, 418 F.3d at 999. Alvarez v. Hill, 518 F.3d 1152, 1156-57 (9th Cir. 2008) (alteration in Alvarez). The Daily Outdoor Worship Plaintiffs point to the fact that Saguaro had a “faith-based pod” that allows Christian inmates to participate in daily worship. [Joint Pltfs.’ Responsive CSOF at ¶ 143.] Defendants emphasize that the faithbased pod was non-denominational and was open to inmates of any faith. [Defs.’ Reply, Defs. Response to Pltfs.’ Facts (doc. 466) (“Defs.’ Reply CSOF”) at ¶ 143.] It was a voluntary program that used “Christian-based material,” i.e. curriculum, and “was operated under Christian principles. [Manley Responsive Decl., Exh. 23 (Excerpts of 4/4/13 Charles F. Miller Depo. (“Joint Pltfs.’ Excerpts of Miller Depo.”)) at 223-24.] Charles Miller, who was the Saguaro Chaplain before his retirement, was an advisor to the coordinator of the faith-based pod. [Id. at 10, 222-23.] The Daily Outdoor Worship Plaintiffs argue that he was a Christian Chaplain. See, e.g., Joint Pltfs.’ Excerpts of Miller Depo. at 57 (Miller gave the sermon for “[q]uite a few of” the Christian services); id. at 66-67 (Miller also provided services at the Samoan-language Christian services). This raises
59

the question of whether Saguaro considered a pod for practitioners of the Native Hawaiian religion and whether that would safely facilitate group worship for them.
The Daily Outdoor Worship Plaintiffs also submitted a schedule of Saguaro’s religious services, dated April 18, 2009. [Manley Responsive Decl., Exh. 24.] The Native Hawaiian language class is not listed on this schedule, and the Native Hawaiian hula class and the Native Hawaiian rituals and ceremonies class are on the same day. There are three services for “Christian Non Denominational,” two on Sunday and one on Saturday, as well as a “Samoan Christian” service on Saturday. [Id.] Chaplain Miller testified that the Samoan Christian service was the same as the other Christian services, except that it was in the Samoan language. [Joint Pltfs.’ Excerpts of Miller Depo. at 66.] Defendants submitted a schedule effective as of January 1, 2014. [Thomas Reply Decl., Exh. A.] There is now only one “Christian Non Denominational” service on Sunday, but the other services discussed above are the same. In addition, there is “Bible Study” on Friday. [Id.] Thus, there appears to be two, or possibly three, days when Christian inmates can engage in group worship, but only one day that inmate practitioners of the Native Hawaiian religion can participate in what Saguaro deems as religious services.
60

Plaintiffs also pointed to evidence that, at Red Rock, there was a “Buddhist meditation” Monday through Friday from 7:00 to 8:15 a.m. [Manley Responsive Decl., Exh. 13 (Excerpts of 4/3/13 Bruno Stolc Depo. (“Stolc Depo.”)) at 117; id., Exh. 16 (CCA Programs and Religious Services - AK-CA-HI-WA Units, submitted as exhibit in Stolc’s Depo.).] Defendants emphasize that this program only involved one Buddhist inmate and was discontinued within a few months. The inmate performed selfmeditation while sitting still on the ground. [Defs.’ Reply, Decl. of Warden Stolc (“Stolc Reply Decl.”) at ¶¶ 7-9.] Even accepting Defendants’ explanation, the practice raises the question of whether daily, outdoor worship for practitioners of the Native Hawaiian religion, in small groups, is a viable means to further the compelling governmental interest.
In light of this evidence, this Court finds that there are genuine issues of fact as to whether Defendants’ policy/custom of prohibiting the practitioners of the Native Hawaiian religion from participating in daily, outdoor, group worship was the least restrictive means of furthering the compelling governmental interest in prison security. This Court therefore DENIES Defendants’ Motion as to Count XXII.
2. Federal Free Exercise Claim The analysis of whether a prison regulation violates inmates’ right to freely exercise their religion, as guaranteed
61

by the United States Constitution, is more deferential to the government than the RLUIPA analysis.
“When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penalogical interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); see also Ward v. Walsh, 1 F.3d 873, 876-77 (9th Cir. 1993) (holding that Turner still applies to free exercise claims of prisoners after Employment Division, Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990)). Turner sets forth four factors to be balanced in determining whether a prison regulation is reasonably related to legitimate penalogical interests:
(1) Whether there is a “‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) Whether there are “alternative means of exercising the right that remain open to prison inmates”; (3) Whether “accommodation of the asserted constitutional right” will “impact . . . guards and other inmates, and on the allocation of prison resources generally”; and (4) Whether there is an “absence of ready alternatives” versus the “existence of obvious, easy alternatives.” Turner, 482 U.S. at 89-90, 107 S. Ct. 2254 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984)). Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008) (alterations in Shakur).
62

Even viewing the record in the light most favorable to the Daily Outdoor Worship Plaintiffs, Defendants have established the first and third Turner factors. In light of the dispute regarding the accessibility of the Native Hawaiian classes, this Court finds that there is a genuine issue of fact as to the second Turner factor. In light of the evidence discussed within the RLUIPA least restrictive means analysis, this Court finds that there is a genuine issue of fact as to the fourth Turner factor. This Court therefore DENIES Defendants’ Motion as to Count I.
3. Federal Equal Protection Claim The Equal Protection Clause of the Fourteenth
Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This is “essentially a direction that all similarly situated persons should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). An Equal Protection claim can be stated in one of two ways. First, a plaintiff can allege that “defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” See Barren v. Harrington, 152 F.3d 1193, 1194–95 (9th Cir. 1998) (citing Washington v. Davis, 426 U.S. 229, 239–40 (1976)). . . . Kaeo-Tomaselli v. Pi`ikoi Recovery House for Women, No. CIV. 11–00670 LEK, 2011 WL 5572603, at *2 (D. Hawai`i Nov. 16, 2011). “If the statute employs a suspect class (such as race, religion, or national origin) or burdens the exercise of a constitutional right, then courts must apply strict scrutiny, and ask whether
63

the statute is narrowly tailored to serve a compelling governmental interest.” Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)).
Based upon the evidence discussed in connection with the Daily Outdoor Worship Plaintiffs’ RLUIPA claim that Defendants treated inmates of other religions more favorably, this Court finds that there is a genuine issue of fact as to whether Defendants acted with an intent or purpose to discriminate against the Daily Outdoor Worship Plaintiffs because of their religion. Further, there is a genuine issue of fact as to whether Defendants’ policy/custom is narrowly tailored to serve the compelling governmental interest of prison security. This Court therefore DENIES Defendants’ Motion as to Count VI.
4. State Free Exercise Claim The analysis of state free exercise claims is related to the analysis of federal free exercise claims. The Hawai`i Supreme Court has stated: In order to find an unconstitutional infringement on Appellant’s religious practices [in violation of the first amendment to the United States Constitution and article I, section 4 of the Hawai`i Constitution],
it [is] necessary to examine whether or not the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief, whether or not the parties’ free exercise of religion had been burdened by the regulation, the
64

extent or impact of the regulation on the parties’ religious practices, and whether or not the state had a compelling interest in the regulation which justified such a burden. State ex rel. Minami v. Andrews, 65 Haw. 289, 291, 651 P.2d 473, 474 (1982). Accord Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). . . . . . . . As a preliminary matter, “it is necessary in a free exercise case for one to show the coercive effect of the [law] as it operates against him in the practice of his religion.” School District of Abington Township v. Schempp, 374 U.S. 203, 223 [83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844] (1963). Accord Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. 707, 717-18 [101 S. Ct. 1425, 1431-32, 67 L. Ed. 2d 624] (1981); Koolau Baptist Church v. Department of Labor, 68 Haw. 410, 418], 718 P.2d [267,] 272 (1986). . . . . . . Appellants must show a “substantial burden” on religious interests. Koolau, 68 Haw. at [418], 718 P.2d at 272; Wisconsin v. Yoder, 406 U.S. at 218 [92 S. Ct. at 1534]. . . . Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87 Hawai`i 217, 247, 953 P.2d 1315, 1345 (1998) (alterations in Sullivan) (quoting Dedman v. Board of Land & Natural Resources, 69 Haw. 255, 260-61, 740 P.2d 28, 32 (1987), cert. denied, 485 U.S. 1020, 108 S. Ct. 1573, 99 L. Ed. 2d 888 (1988)). For the same reasons as those discussed in connection with the Daily Outdoor Worship Plaintiffs’ RLUIPA claim and their federal free exercise claim, this Court finds that there are genuine issues of material fact as to Plaintiffs’ state free
65

xercise claim regarding daily, outdoor, group worship.29 This Court therefore DENIES Defendants’ Motion as to Count XI.
5. State Equal Protection Claim The strict scrutiny standard also applies to Plaintiffs’ state equal protection claim regarding daily, outdoor, group worship. See Nagle v. Bd. of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111-12 (1981). For the same reasons set forth in connection with the Daily Outdoor Worship Plaintiffs’ federal equal protection claim, this Court finds that there are genuine issues of material fact as to Plaintiffs’ state equal protection claim regarding daily, outdoor, group worship. This Court therefore DENIES Defendants’ Motion as to Count XVI. B. Claims Regarding the Observance of Makahiki
1. RLUIPA This Court has found that the observance of the opening and closing days of the Makahiki season is a religious exercise for purposes of RLUIPA. This Court has found that the following components of the observance of the opening and closing days of the Makahiki season are religious exercises: an outdoor sunrise ceremony, prayers, chanting, dancing, offerings, cleansing ceremonies, `awa drinking ceremonies, games and competitions,
29 This Court denied Defendants’ motion to dismiss for failure to exhaust as to Plaintiffs’ state law claims because the Prison Litigation Reform Act of 1996 (“PLRA”) does not apply to state law claims. 4/11/13 Order, 2013 WL 1568425, at *9 (citing 42 U.S.C. § 1997e(a)).
66

ceremonial feasts, and sacramental offerings of special foods to honor Lono. Although this Court has found that there are genuine issues of material fact as to other components of the Makahiki celebrations and as to the specific content and duration of the components, for purposes of Defendants’ Motion, this Court will assume that the components of the Makahiki observance, as Plaintiffs describe them, are religious exercises for purposes of RLUIPA.
Warden Thomas describes Saguaro’s Makahiki program and policies as follows:
15. General population inmates who have appropriately and formally designated their religious preference as Native Hawaiian religious practitioners, and who do not present safety and security threats to facility operations, are permitted to attend the opening and closing Makahiki celebrations at [Saguaro] . . . .
16. The general population Native Hawaiian religious practitioners who have attended the Makahiki ceremony preparation classes are permitted to play religiously significant roles in the celebration.
17. Those who fail to attend the preparation classes are not permitted to play religiously significant roles in the celebration, but are still permitted to observe the ceremonies and participate in the chants and prayers to the level of mastery achieved by that particular inmate.
18. The Makahiki ceremonies begin at approximately sunrise and last until two or three o’clock in the afternoon. . . .
19. . . . [T]he ceremonies at [Saguaro] are performed outside on one of the facility recreation yards. The recreation yard also
67

accommodates . . . multiple practice sessions leading up to these celebrations. During these activities, the recreation yard is closed to other inmate populations.
. . . . 21. At [Saguaro], general population inmates celebrating Makahiki are permitted to construct an altar to Lono with materials appropriate for the correctional setting – but not of rocks. 22. Ceremonial food offerings that are provided by the Volunteer Spiritual Advisor are also permitted, but only one or two pieces of this sacramental food offering are consumed by the inmates. Upon the advice of Advisor Haili, this is appropriate for inmates to practice the Native Hawaiian religion in the correctional setting. 23. While the inmates are permitted to celebrate a communal meal after the service, no special menu is provided as none is required of the religion. 24. Upon the advice of Advisor Haili, this is appropriate for inmates to practice the Native Hawaiian religion in the correctional setting because it is the communal aspect of the meal that is religiously significant – not what foods are on the menu. 25. While the regular facility menu is served to the inmates celebrating the opening or closing of the Makahiki, additional items are added to the menu such as extra rice or a special dessert such as pudding or cake. This is not required by the Native Hawaiian religion, but is provided by CCA prison officials as a show of support for the celebrations. [Thomas Reply Decl. at ¶¶ 15-25.] In addition, as previously noted, Haili typically travels to Saguaro for the opening and closing celebrations of the Makahiki season. [Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 288.]
68

Based on Plaintiffs’ demands for the Makahiki celebrations, [Second Amended Complaint at ¶ 49,] this Court agrees with Defendants that Plaintiffs merely ask this Court to order Defendants to require Saguaro, in addition to what Saguaro is currently providing: to comply with specific time lengths for components of the Makahiki celebrations; to add a procession; and to provide specific ceremonial foods during the ceremonial feast. First, it appears that a procession was included in a 2013 Makahiki ceremony, although the genesis of the procession was that Saguaro instructed the group to move because that recreation yard was needed for another group of inmates. [Defs.’ CSOF, Decl. of Jamie D. Guzman (“Guzman Decl.”), Exh. 1 (Excerpts of Trans. of 5/31/13 Depo. of Ka`iana Haili (“Defs.’ Excerpts of Haili 5/31/13 Depo.”) at 318.30] Defendants have apparently taken the position that the procession is now a regular part of the Makahiki celebrations. [Mem. in Supp. of Defs.’ Motion at 5 (“Advisor Haili has testified that he is satisfied with the schedule and timing of the ceremonies as well as the ability to perform a procession.”).] This Court will consider Defendants’ representation as a binding admission. Thus, the dispute as to Plaintiffs’ request for prospective relief as to the RLUIPA claim
30 Exhibit 1 to the Guzman Declaration also includes Defendants’ excerpts of the transcript of the May 8, 2013 deposition of Ka`iana Haili (“Defendants’ Excerpts of Haili 5/8/13 Deposition”).
69

regarding Makahiki celebrations is limited to the duration and content of the recognized components of the Makahiki celebration.
Plaintiffs have not identified any evidence that their religious exercise has suffered substantial burden because the components of the Makahiki celebrations at Saguaro are shorter than requested in the Second Amended Complaint. Further, they have not identified any evidence that their religious exercise has suffered substantial burden because the specific foods provided for the sacrament and for the feast are determined based on availability at the facility as opposed to the foods listed in the Second Amended Complaint. This Court therefore finds that there is no genuine issue of fact as to the substantial burden inquiry in the RLUIPA analysis. Plaintiffs thus cannot establish their prima face case as to their RLUIPA claim regarding the observance of Makahiki, and Defendants are entitled to summary judgment.
Defendants’ Motion is GRANTED as to Plaintiffs’ claims in Count XXIII.
2. Free Exercise Claims As this Court previously recognized, the federal free exercise analysis and the state free exercise analysis are more deferential than the RLUIPA analysis. Insofar as this Court has concluded that Plaintiffs’ RLUIPA claim regarding the observance of Makahiki fails, this Court also concludes that the Joint
70

Plaintiff’s federal free exercise claim and state free exercise claim regarding the observance of Makahiki fail as a matter of law. This Court therefore GRANTS Defendants’ Motion as to Count II and Count XII.
3. Equal Protection Claims Plaintiffs have not presented any evidence that Defendants treated inmates of other religions more favorably in comparable situations, i.e. there is no evidence that other inmate religious groups have comparable annual ceremonies and Defendants provided those ceremonies with duration and content accommodations that Defendants denied Plaintiffs. This Court therefore concludes that Plaintiffs’ federal equal protection claim and state equal protection claim based on the observance of Makahiki fail as a matter of law. Defendants’ Motion is GRANTED as to Plaintiffs’ claims in Count VII and Count XVII. C. Claims Regarding Access to Sacred Items Saguaro has a list of the types of religious items that all inmates are permitted to keep in their cells (“the Retention List”). Pursuant to the Retention List, practitioners of the Native Hawaiian religion may keep the following items in their cells: “sea salt, a ti leaf lei, coconut oil, a lava lava and an amulet.” [Thomas Decl. at ¶ 52.] In addition, they may keep “written religious materials to include books, genealogy, chants and prayers. General population Native Hawaiian practitioners
71

may also check out a ukulele from the chapel.” [Thomas Reply Decl. at ¶ 122.] Saguaro “is working to identify a vendor for the amulets and is also working to locate a vendor for coconut oil.” [Thomas Decl. at ¶ 52.] In addition,
126. For formal communal religious ceremonies conducted at [Saguaro], the following sacred items are available for use and stored in the prison chapel: coconut bowls, koa bowls, woven bowls, uli`uli, maracas, quido, wai ohe (bamboo), kala`au (brown sticks), egg shakers, cloth mat, kukui nut leis, koa sticks, leihulu, twine, kukui nuts and coconut fiber, sponge brushes, raffia, bamboo stamps, Hawaiian salt, blankets, lama wood and traditional Native Hawaiian dress.
127. In addition to the above, Native Hawaiian religious practitioners at [Saguaro] are permitted access to an extensive library of Native Hawaiian religious and cultural texts for checkout. CDs, DVDs, cassette tapes, flash cards, video tapes and a dictionary are also available to the practitioners. . . . [Thomas Reply Decl. at ¶¶ 126-27.] Plaintiffs argue that their lack of daily access to malo, kihei, pā`ū, kūpe`e, lei, amulets/personal sacred objects, pa`akai, kala, `ōlena, ti leaf, and moena, and their lack of access to specific items for group worship activities, see items listed supra section II.C.3., violates their rights under RLUIPA and the federal and state constitutions. 1. RLUIPA This Court has found that Plaintiffs’ access to the sacred items identified in their RLUIPA claim is a religious exercise. This Court will first address the items that
72

Plaintiffs argue that they must have daily access to, i.e., they argue that Defendants must allow Plaintiffs to keep these items in their cells.
a. Daily Access Items Ti leaf lei and pa`akai (sea salt) are allowed pursuant to the Retention List, and Plaintiffs cannot establish a substantial burden as to those items. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on access to ti leaf lei and pa`akai. Defendants acknowledge that an amulet and coconut oil are permitted pursuant to the Retention List, but those items are not available because Saguaro has not yet identified vendors that can provide those items. Insofar as Defendants admit Plaintiffs can possess these items in their cells but do not have current access these items, and in light of Plaintiffs’ declarations, this Court will assume, for purposes of Defendants’ Motion, that Plaintiffs’ religious exercise is substantially burdened by their lack of daily access to a personal amulet and to coconut oil. Defendants have a compelling interest in maintaining prison security, and certain types of amulets may be used as weapons or to conceal contraband, and certain types of oils may be flammable or may be used in an alcohol-making process. Even if coconut oil itself is not flammable and does not produce alcohol, there is a danger that an unapproved provider may try to mix prohibited
73

liquids with the coconut oil. Plaintiffs have not identified any evidence that they need individually unique sources of coconut oil. Thus, this Court finds that requiring an approved vendor for coconut oil is the least restrictive means available. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of daily access to coconut oil.
Plaintiffs, however, have submitted evidence that a religiously significant amulet must come from a kahu, kumu, or kupuna, not a vendor. Further, there is no evidence that Defendants have considered whether a vendor could provide amulets with individual significance. For example, could a vendor design a Saguaro-approved amulet according to a design provided by a kahu, kumu, or kupuna? There is also no evidence as to whether Defendants considered a case-by-case inspection system for amulets that the Joint Plaintiffs obtain directly from a kahu, kumu, or kupuna. This Court therefore finds that there are genuine issues for trial as to the least restrictive means analysis of Plaintiffs’ lack of daily access to a personal amulet. Defendants are not entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim regarding daily access to personal amulets.
Defendants presented evidence that Saguaro allows practitioners of the Native Hawaiian religion to keep malo and
74

kihei in the prison chapel for use during ceremonies. According to Defendants, Haili advised the facility that those items are not for daily personal worship. The malo and kihei are “kept in a bag marked with the inmate’s name.” [Thomas Decl. at ¶ 51.]
Although Plaintiffs stated that they sincerely believe that they need daily access to malo and kihei, they state that their religious beliefs would be violated if they were forced to share their malo and kihei. See, e.g., Davis Decl. at ¶¶ 30, 35. There is no evidence that Plaintiffs are being asked to share communal malo and kihei. Based on the evidence that Saguaro maintains inmates’ personal malo and kihei in the chapel, this Court finds that the burden on Plaintiffs’ religious exercise is not substantial. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of daily access to malo and kihei.
Plaintiffs state that malo, kihei, and pā`ū are spiritually significant because mana attaches to certain items of clothing, and kūpe`e and lei are spiritually significant because wearing them shows respect for the gods. See, e.g., Davis Decl. at ¶ 44. There is, however, no evidence of the specific role pā`ū plays that is different from the role of malo and kihei, nor is there evidence of the specific role that kūpe`e plays that is different from the role of lei. See discussion of ti leaf lei supra. In addition, kala (seaweed) is not included on the
75

Retention List, but Defendants produced evidence that Native Hawaiian practitioners are allowed access to various types of vegetation for communal use. Defendants state that the Saguaro Correctional Center Religious Artifacts list represents “the inventory of religious items available to Native Hawaiian practitioners in the chapel at” Saguaro (“Saguaro Chapel Artifacts List”). [Guzman Decl. at ¶ 14, Exh. 12.] The list states, inter alia: “VEGETATION IS BROUGHT IN AS NEEDED TO THE FACILITY FOR THE CEREMONIES, THEN TAKEN OUT OF THE FACILITY WHEN CEREMONIES ARE OVER.” [Id., Exh. 12 at 3 (emphasis in original).] Plaintiffs have not presented any evidence contradicting Defendants’ evidence that they may have various forms of vegetation, including kala, brought into Saguaro for ceremonial use. Thus, they argue that ceremonial use is not enough, and the lack of daily access to kala is a substantial burden on their religious exercise.
Defendants contend that: “Altering [the Retention List] to include all the items Plaintiffs allege in the Second Amended Complaint would have a negative impact on prison resources, as it would require more frequent cell searches for modified weapons and contraband, and potentially lead to increased bartering and violence among inmates.” [Thomas Decl. at ¶ 52.] Defendants also contend that inmates’ possessions must be limited because there is limited space in the inmate cells.
76

119. Inmate cells at [Saguaro] measure 7 foot by 14 foot and are designed for double occupancy. Cells are outfitted with two inmate bunks, a sink, a toilet and a small table with two stools.
120. Inmate personal property is limited due to available space in the cell and for safety, fire and health considerations. [Saguaro] inmates are restricted to personal property that fits in two facility-issued storage boxes that are 20 inches long, 15 inches wide and 11 inches deep. All personal property including clothes, hygiene, commissary, books, personal items and legal materials must be stored in these boxes. . . . [Thomas Reply Decl. at ¶¶ 119-20.] This Court finds that there are genuine issues of fact as to the question of whether Plaintiffs’ lack of daily access to pā`ū, kūpe`e, and kala constitutes a substantial burden on their religious exercise. Those issues, however, are not material to the disposition of Defendants’ Motion because, even assuming arguendo that the lack of daily access to those items is a substantial burden on Plaintiffs’ religious exercise, Defendants have a compelling interest in the inmates’ safety and in prison security, and it is reasonable for Saguaro to limit inmates’ possessions to further those interests. Even viewing the record in the light most favorable to Plaintiffs, considering the incell possession of lava lava and lei, the storage of personal malo and kihei in the chapel, and the permission to use available vegetation for ceremonies, this Court finds that the policy/custom of prohibiting in-cell possession of pā`ū, kūpe`e, and kala is the least restrictive means available. Defendants
77

are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of daily access to pā`ū, kūpe`e, and kala.
As to the items the Plaintiffs have argued are necessary for purification and cleansing, pa`akai (sea salt) and ti leaf lei are available. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of daily access to pa`akai and ti leaf.
Warden Thomas stated that ginger is prohibited because it can be “used to ferment and manufacture alcohol.” [Thomas Reply Decl. at ¶ 117.] This Court finds that there are genuine issues of fact as to the question of whether Plaintiffs’ lack of daily access to `ōlena (yellow ginger) constitutes a substantial burden on Plaintiffs’ religious exercise. These issues, however, are not material to the disposition of Defendants’ Motion because, even assuming arguendo that Plaintiffs can establish the substantial burden factor, Defendants have a compelling interest in maintaining safety and security, and the ban on ginger is the least restrictive means available to further that interest. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of daily access to `ōlena.
As to moena (woven floor mats made from lauhala, grass, or other natural fibers), Warden Thomas stated:
78

As to the possession of grass mats in-cell by Native Hawaiian practitioners, I have considered but rejected such personal in-cell possession where grass mats, made of grass, present a fire hazard because of the flammable nature of dried grass, which is an increased concern as compared to Muslim prayer rugs that are rugs – not made of grass. Grass mats, because of their lightweight nature and material makeup, pose an increased risk – as compared to Muslim prayer rugs – in being used by inmates to cause slip and fall hazards to prevent officer entry into cells in emergency situations. [Thomas Reply Decl. at ¶ 125.] This Court finds that there are genuine issues of fact as to the question of whether Plaintiffs’ lack of daily access to moena constitutes a substantial burden on Plaintiffs’ religious exercise. These issues, however, are not material to the disposition of Defendants’ Motion because, even assuming arguendo that Plaintiffs can establish the substantial burden factor, Defendants have a compelling interest in maintaining safety and security, and the ban on mats made of grass, or similar materials, is the least restrictive means available. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of daily access to moena.
b. Communal Worship Items Plaintiffs assert that the remainder of the items at issue in Count XXIV are necessary for group worship. According to Warden Thomas, two of those items, lama wood and `apu (coconut shell bowls), are available for formal communal religious
79

ceremonies and are stored in the Saguaro chapel. Further, Plaintiffs also refer to kapa (cloth), but cloth mats and blankets are also available at the chapel. [Thomas Reply Decl. at ¶ 126.] Plaintiffs also refer to ti shoots, but they have not identified evidence of what ti shoots are specifically used for (as opposed to what ti leaf is used for). As previously noted, the Saguaro Chapel Artifacts List states that various forms of vegetation may be brought into Saguaro for ceremonial use. [Guzman Decl., Exh. 12 at 3.] Further, Plaintiffs have not presented any evidence to contradict Defendants’ evidence that ti shoots may be brought into the facility for ceremonial use. Defendants are therefore entitled to summary judgment as to the portion of Plaintiffs’ RLUIPA claim based on the lack of access to lama wood, kapa, `apu, and ti shoots for group worship.
Most of the other communal worship items that Plaintiffs seek access to are, or are similar to, musical instruments - drums, flutes, and horns. Warden Thomas stated that “a pole,[31] flute or horn becomes a sharpened spear or shank” and drums can be used to store contraband. [Thomas Decl. at ¶ 53.] Warden Thomas stated that the Saguaro chapel offers other musical instruments, including, inter alia, ukulele, maracas, and egg shakers. [Thomas Reply Decl. at ¶¶ 122, 126.]
31 One of the communal items at issue in Count XXIV is a kāhili, a pole with a decorated, cylindrical top.
80

These items “are available for use and stored in the chapel” so that inmate practitioners of the Native Hawaiian religion can use them “[f]or formal communal religious ceremonies conducted at” Saguaro. [Id. at ¶ 126.]
Defendants presented other evidence that Native Hawaiian drums and flutes are among the items available to Plaintiffs in the Saguaro chapel. The specific drums and flutes named in Count XXIV – pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe kā`eke`eke (percussion instrument), pūniu (small knee drum), and `ohe hano ihu (bamboo nose flute) – are not on the Saguaro Chapel Artifacts List. [Guzman Decl., Exh. 12.] The list, however, includes a “PUONE/NOSE FLUTE” and a “DRUM.” [Id. at 2-3 (emphases in original).] In addition, Haili testified:
The drums, the pahu and the single gourd and the double gourd drums, we’ve brought several. Several have deteriorated, been broken, or destroyed, anonymously, and we’ve replaced at our own personal expense. The `ohe ka `eke`eke has never been in the prison.
The pu niu is not in the prison. `Ohe hano ihu, the bamboo nose was, have been a few, but they have been broken. There are a couple of floor mats. They are not from Hawaii. Ipu heke, some of these things that they were supposed to have for dancing have never been allowed that I know of.
81

Q. Okay. And when you say that they have never been allowed, do you mean that someone has, [Saguaro] has specifically prohibited that kind of item coming into the facility? A. Oh, no, nobody’s bothered to be able to afford and provide, and there isn’t enough room in the chapel for storage. [Manley Responsive Decl., Exh. 11 at 285-86.] Plaintiffs acknowledge that some of the sacred items which they seek access to are available for communal use in the Saguaro chapel. See, e.g., Davis Decl. at ¶ 33. Plaintiffs, however, have not presented evidence identifying which of the items are available and which are not. Specifically, Plaintiffs did not present evidence that pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe kā`eke`eke (percussion instrument), pūniu (small knee drum), `ohe hano ihu (bamboo nose flute), and comparable music instruments, are prohibited. Viewing the current record in the light most favorable to Plaintiffs, this Court finds that there are no genuine disputes as to the following facts: Defendants allow Native Hawaiian drums and flutes, or comparable items, to be available for communal use in the Saguaro chapel; but, at times the items may not be available because, for example, existing items were broken or requested items have not been donated. This Court finds that there are genuine issues of fact as to the question of whether the lack of regular communal access to these items is a substantial burden on Plaintiffs’ religious exercise. These
82

issues, however, are not material to the disposition of Defendants’ Motion because, even if Plaintiffs could establish the substantial burden factor, they have not identified any evidence to dispute Defendants’ evidence that Saguaro limits access to these items to only communal use in the chapel, when functional items are available, because of the limited space available, scheduling concerns, and security issues. This Court therefore finds that the custom/policy of allowing only weekly communal access in the chapel to pahu, ipu, ipu heke, `ohe kā`eke`eke, and pūniu, when functional items are available, is the least restrictive means of furthering compelling government interests.
This Court, however, cannot find, viewing the current record in the light most favorable to Plaintiffs, that the custom/policy of allowing only weekly communal access in the chapel to items comparable to the `ohe hano ihu (bamboo nose flute) is the least restrictive means of furthering the compelling government interests. Plaintiffs point out that, although a Native Hawaiian practitioner is not allowed to keep a `ohe hano ihu in his cell, an inmate who practices Drudism is allowed to keep a wooden flute in his cell. [Joint Pltfs.’ Responsive CSOF, Decl. of Richard Subia (“Subia Decl.”) at
83

¶ 74.32] Such an item presents the same space and security concerns as the `ohe hano ihu. This Court agrees that the evidence of accommodations for similar instruments for other religious groups raises genuine issues of material fact as to the question of whether Saguaro’s prohibition of the `ohe hano ihu is the least restrictive means available.
Plaintiffs, however, have not presented evidence raising a triable issue of fact as to the question of whether the prohibition of the Native Hawaiian horns and horn-like items is the least restrictive means available to further the compelling interest in safety and security. This Court therefore finds that there is no dispute of fact that those items can be used as weapons, and this Court finds that the complete prohibition of the pū kani (conch shell) and pū`ohe (bamboo shell horn) in the chapel is the least restrictive means available to further the compelling interest in prison safety and security. Similarly, the kāhili (pole with cylindrical top) may also be used as a weapon, and Plaintiffs have not presented evidence raising a triable issue of fact as to the question of whether the prohibition of kāhili in the chapel is the least restrictive means available. This Court therefore finds that there is no
32 Subia is Plaintiffs’ expert witness. [Subia Decl. at ¶ 2.] Subia has “26 years of experience with the California Department of Corrections and Rehabilitation (CDCR) encompassing administration, management, supervision, and line-staff duties and responsibilities.” [Id. at ¶ 4.]
84

dispute of fact that the kāhili can be used as a weapon, and its complete prohibition in the chapel is the least restrictive means available to further the compelling interest in prison safety and security.
c. Summary of RLUIPA Sacred Items Claim This Court DENIES Defendants’ Motion as to the portions of Count XXIV based on Plaintiffs’ lack of daily access to personal amulets and `ohe hano ihu (bamboo nose flute), and GRANTS Defendants’ Motion as to all other items at issue in Count XXIV. 2. Federal Free Exercise Claim As to the portion of Plaintiffs’ federal free exercise claim based on the lack of daily access to personal amulets and `ohe hano ihu, this Court finds that Defendants have not established the second and fourth factors of the Turner analysis. This Court therefore concludes that Defendants are not entitled to summary judgment as to the portions of Count III based on lack of daily access to a personal amulet and to `ohe hano ihu. As to the remainder of Count III, insofar as the federal free exercise analysis is more deferential than the RLUIPA analysis, the grant of summary judgment to Defendants as to the remainder of Count XXIV also requires summary judgment in favor of Defendants as to the remainder of Count III.
85

3. Federal Equal Protection Claim As to Count VIII, Plaintiffs argue that the denial of access to the Native Hawaiian practitioners’ sacred items violates their federal equal protection rights because Defendants authorize substantially similar items for inmates of other faiths. Plaintiffs have identified evidence that Saguaro approved less restrictive in-cell retention lists for Wiccan inmates, Muslim inmates, and Asatru inmates. [Joint Pltfs.’ Responsive CSOF at ¶ 137 (citing Pltfs.’ Excerpts of Miller Depo. at 138-57; Manley Responsive Decl., Exhs. 25, 41, 56; id., Exh. 81 at Nos. 1, 3, 5-6, 8).] As discussed supra, Saguaro allows inmates who practice Drudism to keep a wooden flute in their cells. Inmate practitioners of the Native Hawaiian religion have access to drums for communal use, as do inmates who practice other religions, and Plaintiffs have not identified any evidence that Defendants allow inmates of other religions to have access to items that are comparable to ‘olena and that could also be used to make alcohol. Defendants have presented evidence explaining the reasons why some of the comparable items are allowed for other religions. For example, as discussed previously, moena are fire and slip-and-fall hazards, but Muslim prayer rugs are not because of the difference in the materials. Defendants, however, have not presented evidence addressing all of the distinctions. For
86

example, Defendants have not established a reason why Muslim inmates have access to prayer oils, but the Native Hawaiian practitioners do not have access to coconut oil because of difficulties finding an appropriate vendor. Defendants also have not explained the different policies/customs regarding flutes.
This Court therefore finds that there are genuine issues of fact as to the question of whether any difference in the restrictions on the Native Hawaiian practitioners’ in-cell retention list and in the restrictions on their communal worship items, as compared to the restrictions for inmates of other religions, survives strict scrutiny. Thus, Defendants are not entitled to summary judgment as to Plaintiffs’ federal equal protection claim regarding access to sacred items. The only exceptions to this ruling are the portions of Count VIII regarding the following items, because Saguaro allows Plaintiffs to have the access requested in the Second Amended Complaint: ti leaf, lei, block of lama wood, pa`akai (sea salt), kapa (cloth), and `apu (coconut shell bowl). In addition, this Court CONCLUDES that Defendants have established that the prohibition of kala (seaweed), ti shoots, ‘olena (yellow ginger), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), and moena (floor mats made of woven lauhala, grasses, or natural fibers) survives strict scrutiny.
87

This Court therefore GRANTS Defendants’ Motion as to the portions of Plaintiffs’ federal equal protection claim regarding: ti leaf, lei, block of lama wood, pa`akai, kapa, `apu, kala, ti shoots, ‘olena, pahu, ipu, ipu heke, `ohe ka eke`eke, pu niu, and moena. Defendants’ Motion is DENIED as to the remaining portions of Count VIII.
4. State Free Exercise Claim As to the portions of Count XIII based on the denial of daily access to personal amulets and `ohe hano ihu (bamboo nose flute), for the same reasons as those discussed in connection with Count XXIV and Count III, this Court finds that there are genuine issues of material fact as to the portions of Plaintiffs’ state free exercise claim regarding these items. This Court therefore DENIES Defendants’ Motion as to those portions of Count XIII. As to the remainder of Count XIII, insofar as the state free exercise analysis is more deferential than the RLUIPA analysis, the grant of summary judgment to Defendants as to the remainder of Count XXIV also requires summary judgment to Defendants as to the remainder of Count XIII. 5. State Equal Protection Claim The strict scrutiny standard also applies to Plaintiffs’ state equal protection claim regarding access to sacred items. For the same reasons as those set forth in the
88

analysis of Plaintiffs’ federal equal protection claim, this Court finds that there are genuine issues of material fact as to Plaintiffs’ state equal protection claim regarding access to sacred items, except as to the items that Saguaro allows and as to kala, ti shoots, ‘olena, pahu, ipu, ipu heke, `ohe ka eke`eke, pu niu, and moena. This Court therefore GRANTS Defendants’ Motion as to the portions of Plaintiffs’ state equal protection claim regarding: ti leaf, lei, block of lama wood, pa`akai (sea salt), kapa (cloth), `apu (coconut shell bowl), kala (seaweed), ti shoots, ‘olena (yellow ginger), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), and moena (floor mats made of woven lauhala, grasses, or natural fibers). Defendants’ Motion is DENIED as to the remaining portions of Count XVIII.
D. Claims Regarding Access to a Sacred Outdoor Space with a Stone Altar The Second Amended Complaint alleges that: “A critical
tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith is to establish an out-of-doors altar composed of at least two spiritually significant stones as a focal point for specific religious protocol activities.” [Second Amended Complaint at ¶ 51.] Insofar as this Court has already addressed Plaintiffs’ claims regarding the ability to engage in daily group worship outdoors, this Court construes Plaintiffs’ claims
89

regarding access to a sacred outdoor space as addressing whether Defendants must provide Plaintiffs with a designated outdoor space with a permanent stone altar. The altar that Plaintiffs seek “should be of interlinking rocks, approximately 4 feet by 4 feet in dimension.” [Pltfs.’ CSOF at ¶ 68 (citing Pltfs.’ Excerpts of Haili 5/31/13 Depo. 297-98).] Haili testified that permanently affixing or connecting the rocks together, such as with cement, would be offensive to the Native Hawaiian religion. [Defs.’ Excerpts of Haili 5/31/13 Depo. at 299-300.]
1. RLUIPA The Outdoor Altar Plaintiffs have established that using a permanent space with a stone altar is a religious exercise. Viewing the record in the light most favorable to the Outdoor Altar Plaintiffs, this Court finds, for purposes of Defendants’ Motion, that the denial of access to a permanent place with a stone altar constitutes a substantial burden on the Outdoor Altar Plaintiffs’ religious exercise. Warden Thomas has stated: Providing inmates access to essentially, a rock pile, is providing inmates access to a pile of weapons that can be used to severely, permanently and fatally injure inmates or facility personnel. This risk is unreasonable and would constitute an obvious unsound correctional practice if permitted. One boulder placed on an existing recreation yard, as Plaintiffs recently suggest, would still be dangerous, there is nothing to keep other inmates from invading the area, angering the practioners [sic] and causing inmate conflict, fights and assaults over religious territory.
90

111. In sum, it is sound correctional practice and the standard of care in a correctional setting to preclude the introduction of a loose rock altar into a secure facility, in order to prevent serious injury or death to inmates and staff. Loose rocks in a prison yard pose a danger as a weapon. I specifically considered the danger of rocks utilized in outdoor altars and chose not to permit them for this reason. At other facilities I have worked, inmates have been beaten in the head, or legs been broken by rocks. And at [Saguaro], an inmate’s leg was broken with a rock the size of one’s hand. . . . [Thomas Reply Decl. at ¶¶ 110-11.] Thus, Defendants have submitted evidence that Saguaro has prohibited the Outdoor Altar Plaintiffs’ stone altar because it is necessary for its compelling governmental interest in prison safety and security. The Outdoor Altar Plaintiffs argue that the prohibition of their altar is not the least restrictive means available to further the compelling interest in safety, as evidenced by the fact that Saguaro allows the Native American inmates to utilize rocks in their sweat lodge ceremonies. Warden Thomas responds: The allowance and restriction are distinguishable. The rocks used in the sweat lodge ceremony are heated over fire and then water is poured over them to create steam in the sweat lodge for purification purposes. Because the rocks used in the sweat lodge ceremony are heated over fire, there is less risk that an inmate will pick up the fire heated rocks, severely burning his hands, in order to use the rock as a weapon. [Id. at ¶ 109.] Further, the sweat lodge ceremony occurs only quarterly and has significant security restrictions. [Id. at ¶¶ 101-07.] A “federally approved Native American volunteer”
91

leads the ceremonies, which “increases the likelihood that the unobservable activities in the sweat lodge are sincere and not used to traffic contraband, plan disturbances, coordinate gang activity or plan or carry out assaults of inmates or personnel.” [Id. at ¶ 103.] One or two correctional officers staff the area outside the sweat lodge, and the attendance ranges from ten to twenty inmates, who are searched before entering and after leaving the ceremony to prevent trafficking of contraband and/or weapons. In addition, Saguaro staff utilizes video surveillance. [Id. at ¶¶ 104-07.] In contrast, the Outdoor Altar Plaintiffs seek daily access to an altar of interlocking, but unaffixed, rocks. Even viewing the record in the light most favorable to Plaintiffs, this Court finds that the Native American use of rocks during their sweat lodge ceremonies is distinguishable from the access to the rock altar that the Outdoor Altar Plaintiffs seek.
The Outdoor Altar Plaintiffs also present evidence that the Native American inmates had an outdoor area for smudging. Chaplain Miller described smudging as follows: “They used to take, like a grass and they ignite it, and then they use the smoke from that as part of their religious exercise.” [Pltfs.’ Excerpts of Miller Depo. at 184.] Other inmates do not generally go into the yard used for the smudging ceremony because the yard is “so small that nobody else would really fit in it.” [Id. at
92

186.] There is no evidence that the smudging ceremony involved the use of loose rocks that could be used as weapons. Thus, the allowance of the smudging ceremonies is not relevant to the issue of whether the prohibition on the stone altar that the Outdoor Altar Plaintiffs seek was the least restrictive means available to further the compelling interest in safety and security.
The Outdoor Altar Plaintiffs also argue that the prohibition of the Native Hawaiian rock altar is not the least restrictive means available because Saguaro allows the Asatru/Odinist inmates to have an altar. Warden Thomas responds:
What Plaintiffs demand and what is permitted for the Asatru/Odinist faith group is distinguishable where the Asatru/Odinist altar is made of wood and is not made of non-affixed objects that can be used by inmates as easily accessible weapons. Moreover, the altar is moveable in that it is wheeled out of storage on a cart for use in celebrations, and then wheeled back to the chapel storage closet when not in use, so we are able to keep the altar secure when not in use. [Id. at ¶ 112 (citation omitted).] Even viewing the record in the light most favorable to the Outdoor Altar Plaintiffs, this Court finds that the Asatru/Odinist use of an altar is distinguishable from the access to the rock altar that the Outdoor Altar Plaintiffs seek. Thus, this Court finds that Defendants have established that Saguaro’s prohibition of the rock altar that the Outdoor Altar Plaintiffs seek is the least restrictive means available, particularly in light of the fact that Saguaro does allow the
93

Native Hawaiian practitioners to use a small altar to Lono (albeit without rocks) during the Makahiki ceremonies. Defendants are therefore entitled to summary judgment as to Plaintiffs’ RLUIPA claim regarding access to a sacred space with a stone altar. Defendants’ Motion is GRANTED as to Count XXV.
2. Free Exercise Claims As this Court previously recognized, the federal free exercise analysis and the state free exercise analysis are more deferential than the RLUIPA analysis. Insofar as this Court has concluded that the Outdoor Altar Plaintiffs’ RLUIPA claim regarding access to a sacred space with a stone altar fails, this Court also concludes that the Outdoor Altar Plaintiff’s federal free exercise claim and Plaintiffs’ state free exercise claim regarding access to a sacred space with a stone altar fail as a matter of law. This Court therefore GRANTS Defendants’ Motion as to Count IV and Count XIV. 3. Equal Protection Claims Plaintiffs have presented evidence that other religious groups are treated more favorably, i.e. the Native American inmates are allowed to use rocks in sweat lodge ceremonies, the Native American inmates have a yard for smudging ceremonies, and Asatru/Odinist inmates are allowed to have an altar while Saguaro does not allow Plaintiffs the stone altar at issue in this case. This Court, however, has found that Defendants have proven that
94

the situations are distinguishable and that there are legitimate safety and security reasons explaining the differences in treatment. This Court therefore concludes that the Outdoor Altar Plaintiff’s federal equal protection claim and Plaintiffs’ state equal protection claim regarding access to a sacred space with a stone altar fail as a matter of law. This Court therefore GRANTS Defendants’ Motion as to Count IX and Count XIX.
E. Claims Regarding Access to a Spiritual Advisor The Second Amended Complaint alleges that “[a] critical
tenet of Native Hawaiian religion essential to the expression of Plaintiffs’ faith is to regularly meet with a respected kahu (religious) leader to assist in their worship activities.” [Second Amended Complaint at ¶ 52.]
1. RLUIPA The Spiritual Advisor Plaintiffs have established that regular access to a spiritual advisor is a religious exercise for purposes of RLUIPA. The Ninth Circuit, however, has held that, where the factual allegations of the complaint showed only that the plaintiffs sought “additional religious accommodations beyond those already provided by the prison to facilitate the religious exercise of their . . . faith,” the plaintiffs did not plead a substantial burden on their religious exercise. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1125 (9th Cir. 2013). Thus, the Ninth Circuit held that the complaint failed to state a
95

RLUIPA claim based on the lack of a paid full-time chaplain of the plaintiffs’ religion. In so holding, the Ninth Circuit also noted that the plaintiffs benefitted from the services of a volunteer chaplain of their religion as well as from the services of the staff chaplains. Id.
As previously noted, Haili travels to Saguaro approximately four times a year to assist in the Makahiki observance and other occasions. He conducts individual consultations with inmates during these trips. [Thomas Decl. at ¶ 49.] Another practitioner of the Native Hawaiian religion, Kini Burke, comes with Haili to assist in the programming, when Burke is able to do so. Burke is also a volunteer, and he usually only comes two times a year, for the opening and closing of the Makahiki season. [Defs.’ Excerpts of Haili 5/31/13 Depo. at 300-01.] Further, the Spiritual Advisor Plaintiffs also have access to the Saguaro chaplain. Warden Thomas states:
any [Saguaro] inmate, no matter his religious designation, may request spiritual guidance from the facility chaplain. Furthermore, inmates are permitted to correspond with spiritual advisors of their choice via written correspondence. Inmates may also place spiritual advisors on their approved telephone call lists. Finally, inmates may request contact visits (subject to restriction for segregation inmates) with spiritual advisors via written request, subject to confirmation of religious credentials by the facility chaplain, successful passing of applicable security background checks and approval of the warden. [Thomas Dec. at ¶ 40.] Chaplain Miller testified that he was
96

responsible for “the overall care of all the spiritual needs throughout the prison for both staff and inmates.” [Guzman Decl., Exh. 11 (Excerpts of 4/4/13 Depo. of Charles F. Miller (“Defs.’ Excerpts of Miller Depo.”)) at 10.] Chaplain Miller had oversight over the activities of the Native Hawaiian practitioners, including the Makahiki ceremonies. [Id. at 23.] He also testified:
[A] chaplain is - If you’re working with the Mormons, you’re supporting the Mormons. If you’re working with the Native Hawaiians, you’re supporting the Native Hawaiians. The role of a chaplain is you’re not showing preference to any one group. At the time you’re meeting or supporting that group, that’s what you do, you support them. That’s the idea of being a chaplain, is that you can work with multiple faiths without putting one faith above another. [Id. at 211-12.] This Court understands that a kahu has an integral role in the practice of the Native Hawaiian religion and that more frequent access to a Native Hawaiian spiritual advisor would be beneficial to the Spiritual Advisor Plaintiffs’ religious exercise. However, even viewing the record in the light most favorable to the Spiritual Advisor Plaintiffs, the record establishes that they benefit from the volunteer services already provided by Haili and Burke and, at least to some extent, from the services of the Saguaro chaplain. Thus, Plaintiffs merely seek additional accommodations beyond what Saguaro provides to facilitate their religious exercise. Pursuant to Hartmann, such
97

allegations in a complaint would not be enough to survive a motion to dismiss. This Court also concludes that the evidence is insufficient to raise a genuine issue of material fact as to the substantial burden analysis. This Court therefore concludes that the Spiritual Advisor Plaintiffs’ RLUIPA claim fails as a matter of law, and this Court GRANTS Defendants’ Motion as to Count XXVI.
2. Federal Free Exercise Claim The Ninth Circuit in Hartmann also held that the plaintiffs failed to state a First Amendment free exercise claim. The Ninth Circuit emphasized that “it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice.” Id. at 1122-23 (some citations omitted) (citing Cruz v. Beto, 405 U.S. 319, 322 n.2, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (“A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand.”)). Based on the reasoning in Hartmann, this Court concludes that “[t]he Free Exercise Clause does not require [Saguaro] to provide [the Spiritual Advisor] Plaintiffs with more than that which they are currently receiving — i.e., the services of staff chaplains and a volunteer [Native Hawaiian religion] chaplain.” See id. at 1123. This Court therefore concludes that
98

the Spiritual Advisor Plaintiffs’ federal free exercise claim fails as a matter of law, and this Court GRANTS Defendants’ Motion as to Count V.
3. Federal Equal Protection Claim The Ninth Circuit in Hartmann also rejected the plaintiffs’ equal protection claim. The Ninth Circuit noted that the Equal Protection Clause does not require “that all prisoners . . . receive identical treatment and resources.” Id. (some citations omitted) (citing Cruz, 405 U.S. at 322 n.2, 92 S. Ct. 1079). As with the plaintiffs in Hartmann, the Spiritual Advisor Plaintiffs’ access to a volunteer spiritual advisor of the Native Hawaiian religion and to the Saguaro chaplain, even if the chaplain is a chaplain of other religions, “is fatal to their claim.” See id. Thus, “[a]s with their Free Exercise claim, the Equal Protection Clause does not entitle [the Spiritual Advisor] Plaintiffs to more than what . . . they already receive.” See id. at 1124. This Court therefore concludes that the Spiritual Advisor Plaintiffs’ federal equal protection claim fails as a matter of law, and this Court GRANTS Defendants’ Motion as to Count X. 4. State Constitutional Claims Although Hartmann is not controlling as to the analysis of Plaintiffs’ state free exercise claim and Plaintiffs’ state equal protection claim, Hartmann is persuasive because the state
99

free exercise analysis and the state equal protection analysis are similar to the federal free exercise analysis and the federal equal protection analysis. This Court therefore concludes that Plaintiffs’ state free exercise claim and state equal protection claim fail for the same reasons as those set forth in Hartmann. This Court therefore concludes that Plaintiffs’ state free exercise claim and Plaintiffs’ state equal protection claim fail as a matter of law. This Court GRANTS Defendants’ Motion as to Count XV and Count XX.
F. Summary of Rulings Defendants’ Motion is HEREBY GRANTED as to Counts II,
IV, V, VII, IX, X, XIV, XV, XVII, XX, XXII, XIX, XXIII, XXV, and XXVI.
Defendants’ Motion is HEREBY DENIED as to Counts I, VI, XI, XVI, and XXII.
Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART as to Counts III, VIII, XIII, XVIII, and XXIV.
CONCLUSION On the basis of the foregoing, Defendants’ Motion for Summary Judgment, filed July 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART, Plaintiffs’ Motion for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act, filed October 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART,
100

and Plaintiff Robert Holbron’s Counter-Motion for Summary Judgment on His Claims, filed December 23, 2013, is HEREBY DENIED WITHOUT PREJUDICE.
The motions are DENIED WITHOUT PREJUDICE as to: 1) any claims seeking damages and any claims seeking retrospective equitable relief; 2) Plaintiff Holbron’s claims seeking prospective declaratory and injunctive relief regarding restricted custody at Saguaro; and 3) Plaintiff Galdones’s request for prospective declaratory and injunctive relief as to his state law retaliation claim.
This Court set forth all of its rulings regarding Plaintiffs’ Motion supra Discussion section II.F, and this Court set forth all of its rulings regarding Defendants’ Motion supra Discussion section III.F.
IT IS SO ORDERED. DATED AT HONOLULU, HAWAI`I, June 13, 2014.
/s/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge
RICHARD KAPELA DAVIS, ET AL. V. NEIL ABERCROMBIE, ET AL.; CIVIL NO. 11-00144 LEK-BMK; AMENDED ORDER
101

 
 Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 1 of 12 PageID #: 17401

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAI POAHA, )

TYRONE KAWAELANILUA`OLE

)

NA`OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; TED SAKAI, in his

)

official capacity as the

)

Director of the Hawaii

)

Department of Public Safety; )

CORRECTIONS CORPORATIONS OF )

AMERICA,

)

)

Defendants.

)

_____________________________ )

CIVIL NO. 11-00144 LEK-BMK

ORDER REGARDING REMAINING CLAIMS On August 13, 2014, this Court issued an entering order that, inter alia, ordered the parties to submit simultaneous letter briefs regarding the claims that they contend remain for trial and the relief being requested for those claims. [Dkt. no. 622.] On August 20, 2014, Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, and Kalai K. Poaha (collectively “Plaintiffs”) and Defendants Ted Sakai, in his official capacity as the Director of the Hawai`i Department of Public Safety, and Corrections Corporation

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 2 of 12 PageID #: 17402
of America (collectively “Defendants”) submitted their respective
letter briefs. [Dkt. nos. 633 (Pltfs.’ 8/20/14 Letter), 634
(Defs.’ 8/20/14 Letter).] Upon review of the many orders that
this Court has issued in this case and the parties’ letter
briefs, this Court HEREBY FINDS that the claims identified in
this Order are the only remaining claims in this case.
I. Class Claims1
A. Counts I (federal free exercise), VI (federal equal protection), XI (state free exercise), XVI (state equal protection), and XXII (Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”)) regarding daily, outdoor, group worship by the Prospective Relief Class and the Protective Custody Prospective Relief Subclass;
B. Counts III (federal free exercise), XIII (state free exercise), and XXIV (RLUIPA) regarding lack of daily access to personal amulets and `ohe hano ihu (bamboo nose flute) by the Prospective Relief Class and the Protective Custody Prospective Relief Subclass;
C. Counts VIII (federal equal protection) and XVIII (state equal protection) regarding lack of daily access to personal amulets, `ohe hano ihu, coconut oil, and malo, kihei, and pau (native garments) by the Prospective Relief Class and the Protective Custody Prospective Relief Subclass;
D. Counts III, VIII, XIII, XVIII, and XXIV regarding lack of access to communal sacred items in protective
1 Each of the classes and subclasses described in this section was defined in this Court’s Order Granting in Part and Denying in Part Plaintiffs’ Amended Second Motion for Class Certification (“9/30/14 Certification Order”), filed September 30, 2014. Dkt. no. 644 at 69-72, available at 2014 WL 4956454, at *28-30. The 9/30/14 Certification Order, however, mistakenly refers to the Protective Custody Prospective Relief Subclass as the “Prospective Relief Subclass.” 2014 WL 4956454, at *29.
2

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 3 of 12 PageID #: 17403
custody by the Protective Custody Prospective Relief Subclass; E. Counts I through V (federal free exercise), VI through X (federal equal protection), and XXII through XXVI (RLUIPA) by the Damages Class and the Protective Custody Damages Subclass; and F. Counts I, II, III, V, VI, VII, VIII, X, XXII, XXIII, XXIV, and XXVI by the SHIP Damages Subclass.2 II. Clarification of Remaining Class Claims
A. Claims Regarding Access to a Spiritual Advisor At an October 20, 2014 status conference addressing the
class notification process (“10/20/14 Conference”), Defendants argued that the Court’s orders are inconsistent and that there are no spiritual advisor claims remaining. In particular, Defendants relied on this Court’s Amended Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron’s Counter-motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act, filed June 13, 2014 (“6/13/14 Summary Judgment Order”). [Dkt. no. 544.3]
2 “SHIP” refers to Saguaro Correctional Center’s (“Saguaro”) Special Housing Incentive Program.
3 The 6/13/14 Summary Judgment Order is available at 2014 WL 2716856.
3

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 4 of 12 PageID #: 17404
The scope of the 6/13/14 Summary Judgment Order is “limited to Plaintiffs’ claims seeking prospective declaratory and injunctive relief.” 2014 WL 2716856, at *3. Thus, although this Court granted summary judgment in favor of Defendants as to the claims regarding access to a spiritual advisor (Counts V, X, XV, XX, and XXVI), id. at *40-42, this Court’s rulings do not prevent the Damages Class and Subclasses from pursuing those claims. In other words, this Court ruled that Defendants’
current policies and procedures regarding access to a spiritual
advisor for inmate practitioners of the Native Hawaiian religion do not violate either the United States Constitution, the Hawai`i State Constitution, or RLUIPA. That ruling does not prevent the Damages Class and Subclasses from litigating the issue of whether, during the relevant time period,4 previous policies and
procedures regarding access to a spiritual advisor violated the United States Constitution and/or RLUIPA.5
At the 10/20/14 Conference, Defendants pointed out that the 6/13/14 Summary Judgment Order states:
4 The relevant period is between “four years prior to February 7, 2011 until the resolution of this lawsuit.” 9/30/14 Certification Order, 2014 WL 4956454, at *29-30 (certification of the Damages Class and Subclasses).
5 This Court granted summary judgment to Defendants as to all of Plaintiffs’ claims for damages arising directly under the Hawai`i State Constitution. See Order Granting in Part and Denying in Part Defs.’ Motion for Summary Judgment Re: Sovereign Immunity/Damages, filed 7/31/14 (dkt. no. 596) (“7/31/14 Summary Judgment Order”), at 37, available at 2014 WL 3809499.
4

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 5 of 12 PageID #: 17405
The relevant Plaintiffs for the RLUIPA claim regarding access to a spiritual advisor are Plaintiffs Holbron, Kane, and Keawe (collectively, “the Spiritual Advisor Plaintiffs”). This Court dismissed Plaintiffs Davis, Galdones, Hughes, Kaahu, and Poaha’s federal claims regarding access to a spiritual advisor on exhaustion grounds. [Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss for Failure to Exhaust,] 2013 WL 1568425, at *13 [(D. Hawai`i Apr. 11, 2013)]. 2014 WL 2716856, at *19 n.24. Defendants emphasized that the Spiritual Advisor Plaintiffs are all restricted custody inmates. Defendants’ position appears to be that, because none of the Spiritual Advisor Plaintiffs were in the general inmate population at Saguaro, the Damages Class does not have an adequate representative for the spiritual advisor claims and cannot proceed as to those claims. Plaintiff Holbron, however, has been in administrative segregation, SHIP, and the general
population at different times during the relevant time period. Thus, he is an adequate representative of the Damages Class and the SHIP Damages Subclass as to, inter alia, the spiritual advisor claims. This Court therefore REJECTS Defendants’ argument that there are no remaining class claims6 regarding access to a spiritual advisor.
6 In this Order, the word “class” in general terms like “class notice” and “class claims” refers collectively to the certified classes and the certified subclasses.
5

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 6 of 12 PageID #: 17406
B. Claims Regarding Access to Kihei and Malo At the 10/20/14 Conference, the Court instructed the
parties to meet and confer to discuss a proposed class notice, as well as the manner of and schedule for distribution. The parties were unable to reach an agreement and, on November 3, 2014, Plaintiffs and Defendants each submitted a letter with their respective proposed notice (“Plaintiffs’ 11/3/14 Letter” and “Defendants’ 11/3/14 Letter”).7
Defendants argue that Section 2 of Plaintiffs’ proposed notice includes “claims that Defendants assert are no longer part of this case (cell access [to] kihei and malo and Makahiki for non-general population inmates).”8 [Defs.’ 11/3/14 Letter at 4.]
In the 7/31/14 Summary Judgment Order, this Court reviewed its rulings in the 6/13/14 Summary Judgment Order, and stated that the remaining claims seeking prospective relief included, inter alia, “the portions of Counts VIII and XVIII related to . . . malo[ and] kihei.” Order, 2014 WL 3809499, at *2. Further, the 6/13/14 Summary Judgment Order stated that “there are genuine issues of fact as to the question of whether any difference in the restrictions on the Native Hawaiian
7 This Court will issue a separate order addressing the parties’ other disputes regarding the proposed notice to potential class members.
8 This Court will address the disputed Makahiki claims infra Section II.C.
6

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 7 of 12 PageID #: 17407
practitioners’ in-cell retention list and in the restrictions on their communal worship items, as compared to the restrictions for inmates of other religions, survives strict scrutiny.” 2014 WL 2716856, at *36 (emphasis added) (federal equal protection analysis); id. at *37 (applying the same analysis to Plaintiffs’ state equal protection claim).
The Court therefore REJECTS Defendants’ argument that there are no remaining class claims regarding in-cell access to kihei and malo.
C. Claims Regarding the Observance of Makahiki Defendants argue that there are no remaining claims
regarding the observance of Makahiki for the classes of “nongeneral population inmates.” [Defs.’ 11/3/14 Letter at 4.]
The 9/30/14 Certification Order did not identify any remaining claims regarding the observance of Makahiki for either the Prospective Relief Class or the Protective Custody Prospective Relief Class. Further, as noted supra Section II.A., the rulings in the 6/13/14 Summary Judgment Order are “limited to Plaintiffs’ claims seeking prospective declaratory and injunctive relief.” 2014 WL 2716856, at *3. Thus, although this Court granted summary judgment in favor of Defendants as to the Makahiki claims (Counts II, VII, XII, XVII, and XXII), id. at *40-42, the rulings do not prevent the Damages Class and Subclasses from litigating the federal claims. See 7/31/14
7

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 8 of 12 PageID #: 17408
Summary Judgment Order, 2014 WL 3809499, at *16 (granting summary
judgment in favor of Defendants as to all of Plaintiffs’ claims
for damages arising directly under the Hawai`i State
Constitution).
Thus, the Damages Class and Subclasses may pursue
Counts II, VII, and XXII regarding the observance of Makahiki,
and the Court REJECTS Defendants’ argument that there are no
remaining class claims regarding the observance of Makahiki.
III. Individual Claims
The claims listed below - which belong to individual
Plaintiffs and are in addition to the claims they are pursuing as
class representatives - remain for trial.
A. Plaintiff Galdones’s state law retaliation claim, set forth in his Supplemental Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Supplemental Complaint”), filed August 22, 2012. [Dkt. no. 146.]
B. Plaintiffs Kane and Keawe’s federal claims for compensatory damages, nominal damages, and retrospective equitable relief based on alleged violations that occurred while they were in protective custody at Red Rock Correctional Center (“Red Rock”). See 7/31/14 Summary Judgment Order, 2014 WL 3809499, at *11 (ruling that Plaintiffs’ remaining claims under 42 U.S.C. § 1983 and RLUIPA claims for damages are limited to compensatory and nominal damages). These are the claims regarding: the observance of Makahiki (Counts II, VII, and XXII); access to sacred items (Counts III, VIII, and XXIV); and access to a spiritual advisor (Counts V, X, and XXVI).
C. Plaintiffs Kane and Keawe’s claims for prospective equitable relief regarding the observance of Makahiki in protective custody at Saguaro (Counts II, VII, XII, XVII, and XXII).
8

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 9 of 12 PageID #: 17409
D. Plaintiff Davis’s federal claims for compensatory damages, nominal damages, and retrospective equitable relief based on the exclusion from certain Makahiki ceremonies (Counts II, VII, and XXII) on the ground that he allegedly had insufficient attendance at the Native Hawaiian religion classes that were a prerequisite to participation.
E. Plaintiff Holbron’s claims for prospective equitable relief regarding the practice of the Native Hawaiian religion in administrative segregation and SHIP. These are: the observance of Makahiki (Counts II, VII, XII, XVII, and XXII); access to sacred items (Counts III, VIII, XIII, XVIII, and XXIV); and access to a spiritual advisor (Counts V, X, XV, XX, and XXVI). However, as a threshold matter, Plaintiff Holbron must establish that there is a reasonable expectation that he may be placed in administrative segregation and/or SHIP in the future. See 6/13/14 Order, 2014 WL 2716856, at *5.
IV. Clarification of Remaining Individual Claims
A. Plaintiff Galdones’s Retaliation Claim
The parties agree that Plaintiff Galdones’s state law
retaliation claim remains for trial. This Court, however, notes
that, to the extent that Plaintiff Galdones seeks prospective
equitable relief, he must first establish that there is a
reasonable expectation that he will be retaliated against in the
future or that he will suffer further effects of the alleged
retaliation for the April 2012 incident described in the
Supplemental Complaint. See 6/13/14 Summary Judgment Order, 2014
WL 2716856, at *6. This Court also notes that it granted summary
judgment in favor of Defendants as to Plaintiff Galdones’s
request for punitive damages associated with his state law
9

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 10 of 12 PageID #: 17410
retaliation claim. See 7/31/14 Summary Judgment Order, 2014 WL 3809499, at *18.
B. Plaintiffs Kane and Keawe’s Individual Claims As noted supra, the scope of the 6/13/14 Summary
Judgment Order is limited to Plaintiffs’ claims seeking prospective declaratory and injunctive relief. 2014 WL 2716856, at *3. Thus, with regard to any claims alleging violations at Red Rock, the 6/13/14 Summary Judgment Order only granted summary judgment in favor of Defendants as to “Plaintiffs’ claims for prospective equitable relief regarding Red Rock.” Id. at *4 (emphasis added). Although the 9/30/14 Certification Order declined to certify any damages class consisting of former Red Rock inmates; 2014 WL 4956454, at *23-28; nothing in this Court’s orders prevents Plaintiffs Kane and Keawe from pursuing their individual federal claims for compensatory damages, nominal damages, and retrospective relief regarding alleged violations of their rights while they were at Red Rock.
Plaintiffs did not include the claims regarding the observance of Makahiki among the claims that the Protective Custody Prospective Relief Subclass would pursue. [Pltfs.’ Amended Second Motion for Class Certification, filed 7/1/14 (dkt. no. 560), at 7-8.] This Court therefore did not certify the Protective Custody Prospective Relief Subclass as to the Makahiki claims. See 9/30/14 Certification Order, 2014 WL 4956454, at
10

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 11 of 12 PageID #: 17411
*29. Although the 6/13/14 Summary Judgment Order granted summary
judgment in favor of Defendants as to the Makahiki claims (Counts
II, VII, XII, XVII, and XXII); 2014 WL 2716856, at *40-42; the
scope of those ruling is limited to Plaintiffs’ claims regarding
inmate practitioners of the Native Hawaiian religion in the general population at Saguaro; id. at *21.9 Thus, nothing in
this Court’s orders prevents Plaintiffs Kane and Keawe from
pursuing their individual claims for prospective equitable relief
regarding the observance of Makahiki in protective custody at
Saguaro.
C. Plaintiff Davis’s Makahiki Claim
In addition to the federal claims regarding the
observance of Makahiki that he is pursuing as a representative of
the Damages Class, Plaintiff Davis has argued that he was
excluded from certain Makahiki ceremonies because he did not
attend a sufficient number of classes beforehand. He has argued
that he was wrongfully denied access to the required classes
9 In the section titled “Defendants’ Motion as to Plaintiffs in the General Inmate Population,” this Court stated: “although Plaintiff Holbron alleges claims regarding religious access during restricted custody, those claims are outside of the scope of this order because Plaintiff Holbron is no longer in restricted custody and is currently in the general inmate population, as are the other Plaintiffs[;]” 6/13/14 Summary Judgment Order, 2014 WL 2716856, at *21; except for Plaintiff Poaha. This Court granted summary judgment in favor of Defendants as to Plaintiff Poaha’s claims for prospective relief because he was transferred to Halawa Correctional Facility. Id. at *5.
11

Case 1:11-cv-00144-LEK-BMK Document 654 Filed 11/10/14 Page 12 of 12 PageID #: 17412
because, inter alia: there was not enough space in the classes to accommodate all of the practitioners of the Native Hawaiian religion; and Saguaro imposed additional restrictions on class attendance because it considered the classes educational, rather than religious. This portion of Plaintiff Davis’s federal claims regarding the observance of Makahiki is distinct from the Damages Class’s claims. Nothing in this Court’s orders prevents Plaintiff Davis from pursuing this individual portion of the federal Makahiki claims.
D. Individual Claims that Plaintiffs Will Not Pursue If Plaintiffs have decided not to pursue any of the
remaining individual claims listed supra Section III.A., Plaintiffs must submit a stipulation for this Court’s signature by December 1, 2014. If Plaintiffs are unable to obtain a stipulation from Defendants, Plaintiffs must file a motion to dismiss, pursuant to Fed. R. Civ. P. 41(a)(2), by December 9, 2014, and said motion and supporting memorandum are not to exceed ten pages.
IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, November 10, 2014.
/s/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge
12

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAI POAHA, )

TYRONE KAWAELANILUA`OLE

)

NA`OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; TED SAKAI, in his

)

official capacity as the

)

Director of the Hawaii

)

Department of Public Safety; )

CORRECTIONS CORPORATIONS OF )

AMERICA,

)

)

Defendants.

)

_____________________________ )

CIVIL NO. 11-00144 LEK-BMK

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN IMMUNITY/DAMAGES

On May 13, 2014, Defendants Ted Sakai, in his official

capacity as the Director of the Hawai`i Department of Public

Safety (“Defendant Sakai” and “DPS”), and Corrections Corporation

of America (“CCA”, collectively “Defendants”) filed their Motion

for Summary Judgment Re: Sovereign Immunity/Damages (“Motion”).

[Dkt. no. 519.] Plaintiffs Richard Kapela Davis,

Tyrone K.N. Galdones, Robert A. Holbron, Michael Hughes,

Damien Kaahu, James Kane, III, Ellington Keawe, and

Kalani K. Poaha (collectively “Plaintiffs”) filed their

memorandum in opposition on June 16, 2014. [Dkt. no. 545.]

Defendants filed their reply on June 23, 2014. [Dkt. no. 553.] This matter came on for hearing on July 7, 2014.
On July 14, 2014, Plaintiffs filed a submission of new evidence in opposition to the Motion (“7/14/14 Submission”). [Dkt. no. 580.] On July 21, 2014, Defendants filed an opposition to the 7/14/14 Submission. [Dkt. no. 585.] After careful consideration of the Motion, supporting and opposing documents, and the arguments of counsel, Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
BACKGROUND The relevant factual and procedural background in this case is set forth in this Court’s June 13, 2014 Amended Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron’s Counter-motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act (“6/13/14 Summary Judgment Order”). [Dkt. no. 544.1]
1 The 6/13/14 Summary Judgment Order is also available at 2014 WL 2716856. This Court filed the original order on March 31, 2014 (“3/31/14 Summary Judgment Order”). 2014 WL 1321006. Defendants subsequently moved for reconsideration on April 14, 2014. [Dkt. no. 500.] On June 2, 2014, this Court issued an order granting in part and denying in part Defendants’
(continued...) 2

This Court incorporates the background section of the 6/13/14
Summary Judgment Order in the instant order.
This Court limited the scope of the 6/13/14 Summary
Judgment Order to Plaintiffs’ claims seeking prospective
declaratory and injunctive relief. 2014 WL 2716856, at *3. This
Court directed Defendants
to file a motion for summary judgment addressing: 1) whether sovereign immunity and the 42 U.S.C. § 1983 definition of a “person” precludes Plaintiffs’ claims seeking either damages or retrospective equitable relief against Defendant Sakai; and 2) whether CCA stands in the shoes of DPS for purposes of the sovereign immunity analysis and the § 1983 “person” analysis.
Id. Defendants filed the instant Motion in response to that
order.
The 6/13/14 Summary Judgment Order granted summary
judgment in favor of Plaintiffs insofar as this Court ruled
that:2
1(...continued) motion for reconsideration (“6/2/14 Reconsideration Order”), 2014 WL 2468348, and this Court issued the 6/13/14 Summary Judgment Order to incorporate the rulings in the Reconsideration Order. Defendants filed the instant Motion before this Court issued either the 6/2/14 Reconsideration Order or the 6/13/14 Summary Judgment Order.
2 This Court has only listed the relevant rulings. Some of the rulings regarding Plaintiffs’ religious exercise were ultimately irrelevant because this Court granted summary judgment in favor of Defendants on that claim.
3

•as to the Daily Outdoor Worship Plaintiffs,3 group worship outdoors, on a daily basis, is a religious exercise for purposes of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”); id. at *11;
•Plaintiffs’ use of each of the sacred items at issue in Count XXIV (Plaintiffs’ RLUIPA claim regarding access to sacred items) is a religious exercise for purposes of RLUIPA; id. at *17;
•the Outdoor Altar Plaintiffs’4 use of a sacred outdoor space, with a stone altar, is a religious exercise for purposes of RLUIPA (but this Court denied summary judgment to Plaintiffs as to the size and composition of the outdoor space and the altar); id. at *18;
•the Spiritual Advisor Plaintiffs’5 regular access to a spiritual advisor is a religious exercise for purposes of their RLUIPA claim (but this Court denied summary judgment to Plaintiffs as to the question of what constitutes “regular” access and the question of what type of access is necessary for the Spiritual Advisor Plaintiffs’ religious exercise); id. at *20.
The 6/13/14 Summary Judgment Order granted summary
judgment in favor of Defendants as to:
•Plaintiffs’ claims seeking prospective equitable relief regarding Red Rock Correctional Center; id. at *4;
•Plaintiff Poaha’s claims seeking prospective equitable relief; id. at *5;
3 In the 6/13/14 Summary Judgment Order, “the Daily Outdoor Worship Plaintiffs” refer to Plaintiffs Davis, Galdones, Hughes, Kaahu, and Kane. 2014 WL 2716856, at *10 n.15.
4 In the 6/13/14 Summary Judgment Order, “the Outdoor Altar Plaintiffs” refer to Plaintiffs Davis, Galdones, Hughes, Kaahu, and Kane. Id. at *17 n.23.
5 In the 6/13/14 Summary Judgment Order, “the Spiritual Advisor Plaintiffs” refer to Plaintiffs Holbron, Kane, and Keawe. Id. at *19 n.24.
4

•Count XXIII (Plaintiffs’ RLUIPA claim regarding the observance of Makahiki), Counts II and XII (Plaintiffs’ federal and state free exercise claims regarding the observance of Makahiki), and Counts VII and XVII (Plaintiffs’ federal and state equal protection claims regarding the observance of Makahiki); id. at *29;
•all items at issue in Count XXIV, Counts III and XII (Plaintiffs’ federal and state free exercise claims regarding access to sacred items), except for the portions of those claims based on lack of daily access to personal amulets and `ohe hano ihu (bamboo nose flute); id. at *35, *37;
•the portions of Counts VIII and XVIII (Plaintiffs’ federal and state equal protection claims regarding access to sacred items) as to: ti leaf, lei, block of lama wood, pa`akai (sea salt), kapa (cloth), `apu (coconut shell bowl), kala (seaweed), ti shoots, `olena (yellow ginger), pahu (tree stump drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke (percussion instrument), pu niu (small knee drum), and moena (floor mats made of woven lauhala grasses, or natural fibers); id. at *36-37;
•Count XXV (the Outdoor Altar Plaintiffs’ RLUIPA claim regarding access to a sacred space with a stone altar), Counts IV and XIV (the Outdoor Altar Plaintiffs’ federal and state free exercise claims regarding access to a sacred space with a stone altar), and Counts IX and XIX (the Outdoor Altar Plaintiffs’ federal and state equal protection claims regarding access to a sacred space with a stone altar); id. at *39-40; and
•Count XXVI (the Spiritual Advisor Plaintiffs’ RLUIPA claim), Counts V and XV (the Spiritual Advisor Plaintiffs’ federal and state free exercise claims), and Counts X and XX (the Spiritual Advisor Plaintiffs’ federal and state equal protection claims); id. at *41-42.
Thus, of Plaintiffs’ claims seeking prospective relief, only the
following remain: all of Counts I, VI, XI, XVI, and XXII; the
portions of Counts III, XIII, and XXIV related to lack of daily
access to a personal amulet and to `ohe hano ihu; and the
portions of Counts VIII and XVIII related to a personal amulet,
5

malo, kihei and pau (native garments), a kahili (pole with cylindrical top covered with feathers, cloth, flora and/or painted), pu kani (conch shell), pu ohe (bamboo shell horn).
In the instant Motion, Defendants ask this Court to grant summary judgment in their favor as to: all of Plaintiffs’ claims against Defendant Sakai; Plaintiffs’ RLUIPA claims against CCA; Plaintiffs’ claims against CCA for violation of the Hawai`i State Constitution; and Plaintiff Galdones’s request for punitive damages associated with his state law retaliation claim.
DISCUSSION I. Damages and Retrospective Relief Against Defendant Sakai
Defendants first argue that they are entitled to summary judgment as to all of Plaintiffs’ § 1983 claims against Defendant Sakai for damages and retrospective relief because Defendant Sakai is not a “person” for purposes of such claims. Plaintiffs respond that “Defendant Sakai is liable in his official capacity as director of the Department of Public Safety for injunctive and prospective declaratory relief. Having named Sakai in his official capacity, Plaintiffs are not pursuing damages against the director in his individual capacity.” [Mem. in Opp. at 1 n.1.]
Based on Plaintiffs’ representation, and based upon the same analysis set forth in this Court’s September 13, 2013 Order Granting Defendant Neil Abercrombie’s Motion for Judgment on the
6

Pleadings (“9/13/13 Order”), 2013 WL 5204982, at *12-13,6 this Court concludes that Defendants are entitled to summary judgment as to any claims in the Plaintiffs’ Second Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Second Amended Complaint”), [filed 8/22/12 (dkt. no. 145),] seeking damages and retrospective relief against Defendant Sakai. Defendant’s Motion is GRANTED as to Plaintiffs’ claims for damages and retrospective relief against Defendant Sakai. II. Prospective Relief Against Defendant Sakai
Defendants next argue that they are entitled to summary judgment as to all of Plaintiffs’ § 1983 claims against Defendant Sakai for prospective relief because he was not involved in the decision-making regarding the religious programming at issue, and he does not have the authority to carry out the requested injunctive relief.
First, in the 9/13/13 Order, this Court ruled “if Plaintiffs prevail in this case, it is Defendant Sakai (as DPS director) who has the statutory authority to execute the requested injunctive relief and to remedy any violations identified in any declaratory relief.” 9/13/13 Order, 2013 WL 5204982, at *14. In so ruling, this Court stated:
Haw. Rev. Stat. § 353C–2 sets forth the powers and duties of the director of DPS and states, in pertinent part:
6 The 9/13/13 Order is also available as docket number 390. 7

[(a)] The director of public safety shall administer the public safety programs of the department of public safety and shall be responsible for the formulation and implementation of state goals and objectives for correctional and law enforcement programs, including ensuring that correctional facilities and correctional services meet the present and future needs of persons committed to the correctional facilities. In the administration of these programs, the director may:
. . . .
(2) Train, equip, maintain, and supervise the force of public safety officers, including law enforcement and correctional personnel, and other employees of the department;
. . . .
(4) Perform other duties as may be required by law;
(5) Adopt, pursuant to chapter 91, rules that are necessary or desirable for the administration of public safety programs; and
(6) Enter into contracts in behalf otfhe department and take all actions deemed necessary and appropriate for the proper and efficient administration of the department.
(Emphasis added.) In addition, it is the director of DPS who has the authority to “effect the transfer of a committed felon to any correctional institution located in another state. . . .” Haw. Rev. Stat. § 353–16.2(a); Haw. Rev. Stat. § 353–1. . . .
Id. (emphases and some alterations in 9/13/13 Order). Defendants
did not seek reconsideration of the 9/13/13 Order. In the
8

6/13/14 Summary Judgment Order, this Court relied on the analysis in the 9/13/13 Order and denied summary judgment to Defendants as to Plaintiffs’ claims for prospective equitable relief against Defendant Sakai. 2014 WL 2716856, at *4.
Thus, this Court’s ruling that Defendant Sakai is the proper State official to ensure the execution of any prospective equitable relief ordered is the law of the case. “Under the ‘law of the case’ doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” United States v. Jingles, 702 F.3d 494, 499 (9th Cir. 2012) (citation omitted), cert. denied, 133 S. Ct. 1650 (2013). However, due to the importance of the issue, this Court will address the merits of Defendants’ current argument regarding Plaintiffs’ claims for prospective relief against Defendant Sakai.
This Court first notes that Plaintiffs do not argue that Defendant Sakai personally made the religious programming decisions which allegedly violated Plaintiffs’ rights under RLUIPA, the United States Constitution, and the Hawai`i State Constitution. In the 9/13/13 Order, this Court stated:
The Ninth Circuit has recognized that the proper state defendant in a § 1983 action seeking prospective injunctive relief is the one who “would be responsible for ensuring that injunctive relief was carried out, even if he was not personally involved in the decision giving rise to [the plaintiff’s] claims.” Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (citing Gonzalez v.
9

Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (the prison warden was the proper defendant for a claim of injunctive relief, notwithstanding his lack of personal involvement in the challenged conduct, because he would be responsible for ensuring that the injunctive relief was carried out)), petition for cert. filed, 81 U.S.L.W. 3643 (Apr. 25, 2013); see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (holding that official who the defendants admitted was “the ‘most appropriate’ defendant to execute court-ordered injunctive relief” and the official who “would have the authority to ensure execution of any order issued” were “proper official-capacity defendants for Plaintiffs’ Establishment Clause claim”).
2013 WL 5204982, at *14 (alteration in 9/13/13 Order) (emphasis
added). Although both Pouncil and Hartmann involved motions to
dismiss, Pouncil, 704 F.3d at 570; Hartmann, 707 F.3d at 1120-21,
the legal principles articulated in those cases are still
applicable to the issue before this Court in the instant Motion.
If there is a genuine issue of material fact as to whether
Defendant Sakai would be responsible for ensuring that any
injunctive relief was carried out, Defendants would not be
entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a) (stating that a movant is entitled to summary judgment “if
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”). In determining whether there is a genuine issue of
material fact, this Court must view the current record in the
light most favorable to Plaintiffs. See Crowley v. Bannister,
734 F.3d 967, 976 (9th Cir. 2013) (“We review a grant of summary
10

judgment de novo and must determine, viewing the facts in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” (citations and quotation marks omitted)).
Defendants argue that Defendant Sakai does not have the authority to ensure that Saguaro Correctional Center (“Saguaro”) carries out any injunctive relief that this Court orders. They contend that CCA is the only party with the authority to make any changes required by an award of injunctive relief. Defendants acknowledge that CCA and the DPS director have a contractual relationship regarding the housing of Hawai`i inmates at Saguaro. Defendants argue that, subject to constitutional restrictions, DPS defers to CCA’s autonomy and discretion over Saguaro’s dayto-day operations. In this case, Plaintiffs allege that their constitutional rights are being violated, and this Court previously denied summary judgment to Defendants as to Plaintiffs’ claims for prospective relief for violations of their federal and state constitutional claims regarding daily worship practices and regarding access to certain sacred items. If Plaintiffs ultimately establish that there were violations of their constitutional rights, Defendant Sakai would have the authority to ensure CCA’s compliance with the prospective relief
11

this Court orders because the constitutional violations would be
outside of the scope of the discretion that DPS allows CCA.
Second, Saguaro Warden Todd Thomas has stated that DPS
personnel “monitor correctional services agreement compliance as
to [Saguaro’s] operations[.]” [Motion, Defs.’ Concise Statement
of Facts in Supp. of Motion (“Defs.’ CSOF”), Decl. of Warden
Thomas (“Thomas Decl.”) at ¶ 21.7] Plaintiffs argue that CCA’s
contracts with DPS require CCA to comply with all federal and
state laws. The Scope of Services Attachment to the “contract
for Health and Human Services, Competitive Purchase Services,
dated June 2011” (“June 2011 Contract”), [Pltfs.’ Joint Separate
Concise Statement of Facts in Opp. to Motion, filed 6/16/14 (dkt.
no. 546) (“Pltfs.’ CSOF”), Decl. of Sharla Manley (“Manley
Decl.”) at ¶ 7,] states, in pertinent part:
9. All Inmates shall be confined and treated in a facility which:
a. Provides a level of program activity for the Inmate that is suitable to allow every Inmate in general population who meet the relevant criteria to participate in meaningful educational, vocational training, drug and other treatment and counseling programs; and
b. Does so in a matter that meets and does not violate any rights provided under the laws and Constitution of the United
7 The version of the Thomas Declaration filed with Defendants’ CSOF is unsigned, but it states that it was approved by telephone. [Thomas Decl. at pg. 4.] Defendants filed the signed version on May 21, 2014. [Dkt. no. 525.]
12

States or of the States of Hawaii and Arizona.

[Id., Exh. 5 at 11.] Similarly, the General Conditions for

Health & Human Services Contracts, which are part of the June

2011 Contract, [Manley Decl. at ¶ 8,] states:

1.2 Representations of the PROVIDER. As a necessary condition to the formation of this Contract, the PROVIDER makes the representations contained in this paragraph, and the STATE relies upon such representations as a material inducement to entering into this Contract.

1.2.1

Compliance with Laws. As of the date of this Contract, the PROVIDER complies with all federal, state, and county laws, ordinances, codes, rules, and regulations, as the same may be amended from time to time, that in any way affect the PROVIDER’s performance of this Contract.

. . . .

1.3 Compliance with Laws. The PROVIDER shall comply with all federal, state, and county laws, ordinances, codes, rules, and regulations, as the same may be amended from time to time, that in any way affect the PROVIDER’s performance of this Contract . . . .

[Id., Exh. 6 at DAVIS_HIDPS003494.] Insofar as CCA’s contract

with DPS requires CCA to comply with, inter alia, all applicable

federal laws, if this case ultimately results in a finding that

CCA violated Plaintiffs’ rights under RLUIPA, DPS can also ensure

CCA’s compliance with any prospective equitable relief ordered as

part of DPS’s monitoring of CCA’s contract compliance.

13

Plaintiffs also assert that DPS has the authority to
ensure CCA’s compliance with any prospective equitable relief
ordered in this case, as evidenced by the fact that CCA already
relies upon DPS’s polices to make decisions regarding
accommodations for inmate practitioners of the Native Hawaiian
religion. Plaintiffs rely on a July 17, 2008 memorandum from
Shari Kimoto, the DPS Mainland Branch Administrator, to Warden
Thomas transmitting the “PSD Makahiki Basic Guidelines and
Retention List for In-State and Out-of-State Correctional
Facilities.” [Manley Decl., Exh. 9.8] The transmittal memo
states, in pertinent part:
Attached is the approved Department’s basic guidelines for the Makahiki season to be implemented in both in-state and out-of-state facilities.
. . . .
Also attached is a retention list of religious items that have been verified by Kaiana Haili. Please be advised that the retention item of Alae Salt (Hawaiian Salt) due to its clear, crystal form, may be brought into the facility for ceremonial purposes only upon your approval and must be taken out of the facility upon the completion of the ceremony.
8 This Court will refer to pages 2 and 3 of Exhibit 9 as “the Makahiki Guidelines,” and to pages 4 and 5 of Exhibit 9 as “the Retention List.” Defendant Sakai described these as “akin to like a - it’s something we would use to carry out a facility policy or to clarify a facility policy.” [Manley Decl., Exh. 10 (Excerpts of Trans. of 5/7/13 Depo. of Theodore Sakai) (“Pltfs.’ Excerpts of Sakai Depo.”) at 66.]
14

For the purposes of weekly meetings, it should be a minimum of 1-hour meetings; however, what you have in place (Wednesdays) is more than acceptable. A Native Hawaiian Religious curriculum has been provided for the purposes of structure within the meetings. [Id. at 1 (some emphases added).] Plaintiffs assert that DPS sent the document “in response to CCA’s request for a policy that it could follow on Native Hawaiian religion.” [Pltfs.’ CSOF at ¶ 37 (some citations omitted) (citing Manley Decl., Exh. 15 (Excerpts of Trans. of 4/5/13 Depo. of Warden Todd Thomas) (“Thomas Depo.”) at 104-05, 110).] Warden Thomas described a meeting in Hawai`i during which he discussed the Native Hawaiian religion with several DPS officials to help develop guidelines. [Thomas Depo. at 105, 110.] During the meeting, he asked the DPS officials: “‘Is there a policy? Is there a document? Is there something I can follow?’” [Id. at 105.] He also asked, “‘can we get a document what is [sic] expected?’” [Id.] He stated: “‘Write it down; we’ll follow it to a T. And if we have questions, we will contact you.’ And every year since that time, we followed it to a T.” [Id. at 106.] According to Warden Thomas, the Makahiki Guidelines and the Retention List arose out of that meeting. [Id.] Warden Thomas also testified:
Q. Okay. What decisions regarding the administration of Saguaro do you have to seek approval from your superior before enacting?
. . . .
15

THE WITNESS: Well, as simple as changing a policy or as complex as anything else out of the norm. But if I was going to change a policy, something in writing, I’ve got to submit a request through policy and procedure that would go to P and P, policy and procedure, in Nashville, and then that would be reviewed by legal, operations, vice presidents, and ultimately, I’m sure the chief operating officer signs off on it from the CCA standpoint.
From Hawaii’s standpoint, I’ve got to submit it through [redacted] Kimoto, and I’m sure she would submit it through her chain of command. It would take approval from both entities to make that happen.
BY MR. KAWAHITO:
Q. For, let’s say, religious programs, in order to change any of the policies that relate to religious programs, you would have to get approval from your superior at CCA as well as Shari Kimoto in Hawaii. Is that correct?
A. Correct.
[Id. at 125-26.]
Moreover, in denying Plaintiffs’ written requests for
religious accommodations, Saguaro officials cited DPS policies.
For example, in denying one of Plaintiff Davis’s requests
regarding items and services for the observance of the Makahiki
season, the Saguaro official stated, inter alia: “Here at Sagauro
we operate under the current policy which or and has approved by
[DPS] in the area of Native Hawaiian Spiritual leaders.” [Manley
16

Decl., Exh. 22 at DAVIS_SCC000394-95.9] In responding to one of Plaintiff Davis’s requests regarding registration as a practitioner of the Native Hawaiian religion, the Saguaro official stated, inter alia: “We are going to operate under the current policy that has been approved by [DPS] . . . .” [Id. at DAVIS_SCC000389-90.10] While Plaintiffs’ claims for prospective equitable relief regarding the observance of the Makahiki season and access to a spiritual advisor are no longer before this Court, Saguaro’s responses to Plaintiff Davis’s requests support Plaintiffs’ position that DPS has the authority to ensure that CCA complies with any prospective equitable relief ordered in this case.
This Court therefore finds that there are genuine issues of material fact as to whether Defendant Sakai has the authority to ensure CCA’s compliance with any prospective equitable relief ordered in this case.
9 Exhibit 22 is the Affidavit of Juan Valenzuela in Support of Defendants’ Motion to Dismiss (“Valenzuela Affidavit”), with Attachments A-R, originally filed in this case on December 31, 2012 as docket number 220-3. Pages DAVIS_SCC000394 and DAVIS_SCC000395 are the Informal Resolution form for one of Plaintiff Davis’s August 3, 2010 requests (DAVIS_SCC000396). Both the Inmate Resolution form and the request are part of Attachment F to the Valenzuela Affidavit.
10 Pages DAVIS_SCC000389 and DAVIS_SCC000390 are the Informal Resolution form, and DAVIS_SCC000391 is Inmate Request Form. Both are part of Attachment G to the Valenzuela Affidavit.
17

Further, in this Court’s view, accepting Defendants’
argument that DPS has no authority to ensure that CCA remedies
any constitutional and statutory violations found in this case
would lead to an absurd result and would require an illogical
interpretation of the applicable state statutes governing DPS’s
authority over Hawai`i inmates. This would be a violation of the
well-established rules of statutory construction that the courts
follow in interpreting Hawai`i statutes. See Haw. Gov’t Emps.
Ass’n, AFSCME Local 152, AFL-CIO v. Lingle (“HGEA”), 124 Hawai`i 197, 207-08 n.16, 239 P.3d 1, 11-12 n.16 (2010).11 This Court
therefore concludes that Defendants are not entitled to judgment
as a matter of law and DENIES Defendants’ Motion as to the claims
against Defendant Sakai for prospective equitable relief.
11 In HGEA, the Hawai`i Supreme Court stated:
“the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.” Gray v. Administrative Dir. of the Court, 84 Hawai`i 138, 148, 931 P.2d 580, 590 (1997) (citation and internal quotation marks omitted). “[A] rational, sensible and practicable interpretation of [a statute] is preferred to one which is unreasonable or impracticable[.]” Keliipuleole v. Wilson, 85 Hawai`i 217, 221–22, 941 P.2d 300, 304–05 (1997) (brackets added and in original) (citation and internal quotation marks omitted).
124 Hawai`i at 207-08 n.16, 239 P.3d at 11-12 n.16 (alterations in HGEA).
18

III. Effect of the Prison Litigation Reform Act Defendants next argue that, pursuant to the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), Plaintiffs cannot recover for any mental or emotional injury unless they can also establish physical injury. According to Defendants, Plaintiffs have only alleged spiritual injury, and there is no suggestion that they have suffered any physical injuries. Defendants assert that spiritual injury is legally equivalent to emotional or mental injury. Thus, Defendants argue that Plaintiffs can only recover nominal damages for their remaining § 1983 claims regarding outdoor group worship and access to sacred items. [Mem. in Supp. of Motion at 8-9.]
Under § 1997e(e), “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . .” First, insofar as § 1997e(e) specifically addresses federal claims, Defendants acknowledge that it does not apply to Plaintiffs’ state law claims.12 [Mem. in Supp. of Reply at 3.] This district court has stated:
In Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002), the Ninth Circuit considered the standard in interpreting the “physical injury”
12 Although § 1997e(e) does not limit a plaintiff’s state law claims, Plaintiffs’ claims for damages under the Hawai`i State Constitution fail for other reasons. See infra § V.
19

requirement of § 1997e(e) and whether that “physical injury” requirement applies to claims other than those for mental and emotional injury. The court concluded that, “[t]o the extent [a plaintiff] has actionable claims for compensatory, nominal or punitive damages—premised on violations of his Fourteenth Amendment rights, and not on any alleged mental or emotional injuries—we conclude the claims are not barred by 1997e(e).” 289 F.3d at 629–30.
. . . As governed by Oliver, while Plaintiff’s constitutional claims under the Fourth and Fourteenth Amendments may have little financial value, they are still cognizable. See Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 776–77 (N.D. Cal. 2008); see also Greene v. Rourk, 2009 WL 1759638, at *9 (E.D. Cal. June 22, 2009) (allowing compensatory, nominal, or punitive damage claims under Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the First and Fourteenth Amendments, and state law to proceed); Curtis v. Benda, 2009 WL 1065204 at *2 (W.D. Wash. Apr. 20, 2009) (concluding that Fourteenth Amendment claim for compensatory, nominal, and punitive damages is not barred by § 1997e(e)); Hill v.. [sic] Arpaio, 2007 WL 1120305, at *4 (D. Ariz. Apr. 11, 2007) (same).
While Plaintiff cannot recover damages on his claims for humiliation and embarrassment, under Oliver and its progeny he may recover compensatory, punitive, and/or nominal damages for the violation of his Fourth and Fourteenth amendment rights, if he can establish a violation. . . .
Hammond v. Dep’t of Pub. Safety, Civ. No. 09–00596 JMS/KSC, 2011
WL 6210869, at *3-4 (D. Hawai`i Dec. 14, 2011) (some alterations
in Hammond).
Defendants acknowledge that the PLRA physical injury
requirement does not bar either claims for compensatory damages
20

for loss of property or claims for nominal damages.13 [Mem. in
Supp. of Reply at 3-4.] Thus, Defendants only seek a ruling that
the PLRA bars Plaintiffs’ § 1983 claims and Plaintiffs’ RLUIPA
claims for damages based on their alleged spiritual injuries.14
Plaintiffs argue that “the Ninth Circuit has consistently held
that claims for the violation of constitutional rights are not
actions ‘for mental or emotional injury,’ and thus the physical
injury requirement of § 199[7]e(e) does not apply” and therefore
§ 1997(e)e does not apply to claims alleging violations of the
First Amendment or the Fourteenth Amendment. [Mem. in Opp. at
26-27 (citing Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.
1998); Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002)).]
13 Defendants also acknowledge that the PLRA physical injury requirement does not bar claims for punitive damages, but they point out that the Second Amended Complaint does not seek punitive damages. [Mem. in Supp. of Reply at 3-4 & n.6 (citing Second Amended Complaint at pg. 129, ¶ 15).] Plaintiff Galdones seeks punitive damages for his state law retaliation claim. [Suppl. Complaint for Damages and for Classwide Declaratory & Injunctive Relief, filed 8/22/12 (dkt. no. 146), at pg. 33, ¶ 18.] As noted supra, the PLRA physical injury requirement does not apply to state law claims.
14 Defendants argue that “Plaintiffs fail to establish any ‘property loss’ other than Davis’ confiscated kukui nut, legitimately confiscated and for which preliminary-injunction was denied. Because Plaintiffs’ counsel has Davis’ kukui nut, the possibility of compensable damages is attenuated at best.” [Mem. in Supp. of Reply at 3 (footnotes and citations omitted).] This Court, however, does not construe Defendants’ Motion as seeking summary judgment on Plaintiffs’ federal claims seeking damages for property loss.
21

Oliver, however, does not stand for the proposition
that § 1997e(e) is inapplicable to any claim alleging a violation
of the Fourteenth Amendment. The Ninth Circuit held that
§ 1997e(e) applies only to claims for mental and emotional injury. To the extent that appellant’s claims for compensatory, nominal or punitive damages are premised on alleged Fourteenth Amendment violations, and not on emotional or mental distress suffered as a result of those violations, § 1997e(e) is inapplicable and those claims are not barred.
Oliver, 289 F.3d at 630 (emphasis added). In Canell, however,
the Ninth Circuit held:
Canell is not asserting a claim for “mental or emotional injury.” He is asserting a claim for a violation of his First Amendment rights. The deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred. Therefore, § 1997e(e) does not apply to First Amendment Claims regardless of the form of relief sought.
143 F.3d at 1213 (footnote omitted) (emphasis added). The Ninth
Circuit has not addressed the apparent conflict between Oliver
and Canell. This Court will follow Oliver because it is the more
recent authority. See, e.g., Joseph v. Parciasepe, No.
2:14–cv–00414 AC P, 2014 WL 2807654, at *3 (E.D. Cal. June 20,
2014) (stating that § 1997e(e) “‘requires a prior showing of
physical injury that need not be significant but must be more
than de minimus’” (some citations omitted) (quoting Oliver v.
Keller, 289 F.3d 623, 627 (9th Cir. 2002), and citing Canell v.
Lightner, 143 F.3d 1210 (9th Cir. 1998), as contrary
22

authority)).15 This Court therefore concludes that the PLRA physical injury requirement applies to Plaintiffs’ § 1983 claims.
Plaintiffs also argue that the PLRA physical injury requirement does not apply to RLUIPA claims. [Mem. in Opp. at 27 (citing Rupe v. Cate, 688 F. Supp. 2d 1035, 1044 (E.D. Cal. 2010) (“Because Plaintiff alleges RLUIPA violations, and not mental or emotional injuries, § 1997e(e) does not bar his claims”)).] The district court in Rupe, however, relied on Oliver for the proposition that § 1997e(e) “applies only where a plaintiff alleges mental or emotional injuries. If a plaintiff claims violations of constitutional or statutory rights, this section does not bar claims for money damages.” 688 F. Supp. 2d at 1044 (citing Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002)). To the extent that the district court in Rupe ruled that § 1997e(e) is inapplicable to all claims alleging RLUIPA violations, that is an incorrect application of Oliver, and this Court does not consider Rupe persuasive. This Court agrees with the district court in Greene, 2009 WL 1759638, at *9 (cited in Hammond, supra), that § 1997e(e) applies to RLUIPA claims.
Plaintiffs do not expressly claim mental or emotional injuries; they assert that they have suffered, and are suffering, various spiritual injuries. See, e.g., 6/13/14 Summary Judgment
15 The plaintiff in Joseph alleged three § 1983 claims, two based on violations of the Eighth Amendment and a First Amendment retaliation claim. 2014 WL 2807654, at *2-3.
23

Order, 2014 WL 2716856, at *22 & n.27 (discussing spiritual injuries regarding the inability to engage in daily, outdoor, group worship). Although this Court by no means minimizes the importance of the federal rights that Plaintiffs allege were violated, it is well established that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages in [§ 1983] cases.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986). This Court finds that the spiritual injuries that Plaintiffs allege in this case are comparable to humiliation, embarrassment, or disappointment and are therefore mental or emotional injuries subject to § 1997e(e). Plaintiffs cannot pursue claims for damages based on their spiritual injuries without a prior showing of physical injury.
Under Oliver, “a prior showing of physical injury . . . need not be significant but must be more than de minimis.” 289 F.3d at 627 (footnote omitted). Plaintiffs have conceded that they have not suffered any physical injuries as a result of the alleged violations of the United States Constitution and RLUIPA. Defendants’ CSOF states: “Plaintiffs have not alleged a physical injury as a result of any restriction on their religious activities. According to Plaintiffs’ declarations, the only injury they have allegedly suffered from the denial of their religious exercise, . . . were [sic] ‘spiritual injury.’”
24

[Defs.’ CSOF at ¶ 2 (emphasis in original) (citations omitted).] Plaintiffs respond: “DISPUTED. The most critical onus on Plaintiffs’ religious exercises was the confiscation of Hawaiian sacred items pursuant to CCA and State policy, practice, and custom.” [Pltfs.’ CSOF at ¶ 2.] Plaintiffs’ failure to respond to Defendants’ statement regarding a lack of physical injury renders that statement admitted. See Local Rule LR56.1(g) (“material facts set forth in the moving party’s concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party”). This Court therefore concludes that § 1997e(e) bars Plaintiffs’ § 1983 claims and RLUIPA claims for damages arising from their alleged spiritual injuries because Plaintiffs have not made the required showing of physical injury.
Defendants’ Motion is GRANTED insofar as this Court rules that, pursuant to § 1997e(e), Plaintiffs’ remaining § 1983 claims and RLUIPA claims for damages are limited to compensatory damages and nominal damages. IV. Whether Plaintiffs Can Pursue RLUIPA Claims Against CCA
Defendants next argue that CCA is entitled to summary judgment on all of Plaintiffs’ remaining RLUIPA claims against it because: 1) CCA is not “the government” for purposes of RLUIPA; and 2) Plaintiffs cannot pursue RLUIPA claims against CCA because it does not receive federal funds for housing Hawai`i inmates.
25

42 U.S.C. § 2000cc-1 states:
(a) General rule
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person -
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application
This section applies in any case in which -
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.
In addition, RLUIPA provides that: “A person may assert a
violation . . . as a claim . . . in a judicial proceeding and
obtain appropriate relief against a government.” 42 U.S.C.
§ 2000cc-2(a).
A. The Government
Under RLUIPA:
The term “government” -
(A) means –
26

(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law[.]
42 U.S.C. § 2000cc-5(4). The Ninth Circuit applies the § 1983
“color of state law” analysis in the § 2000cc-5(4)(A)(iii)
analysis. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d
916, 922 (9th Cir. 2011). In Florer, the Ninth Circuit stated:
The Supreme Court has explained that “[t]he 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.’” West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941)). To determine whether actions that allegedly caused the deprivation of a right are fairly attributable to the state even though they were committed by private actors, we follow a two-part approach: “First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). “Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. We start with the presumption that conduct by private actors is not state action. Sutton [v. Providence St. Joseph Med. Ctr.], 192 F.3d [826,] 835 [(9th Cir. 1999)]. Florer bears the burden of establishing that Defendants were state actors. See Flagg Bros., Inc. v. Brooks,
27

436 U.S. 149, 156, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978).
Id. (some alterations in original).
Florer also describes the first step of the Lugar
analysis as “whether the deprivation is the result of a
governmental policy.” Id. (some citations omitted) (citing
Lugar, 457 U.S. at 937, 102 S. Ct. 2744). For the same reasons
set forth in the discussion of whether Defendant Sakai is a
proper party in Plaintiffs’ claims for prospective equitable
relief, see supra § II., this Court finds that there are genuine
issues of material fact as to the issue of whether the alleged
RLUIPA violations are the result of a governmental policy.
As to the second Lugar factor - whether the defendant
can fairly be considered a state actor - the Ninth Circuit has
stated:
“In order for private conduct to constitute governmental action, ‘something more’ must be present.” Sutton, 192 F.3d at 835. The Supreme Court has instructed that “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974)). Courts have employed various approaches to determine whether a person may fairly be considered a state actor. Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002). . . .
“Because of the fact-intensive nature of the inquiry, courts have developed a variety of
28

approaches” to assess whether a private party has acted under color of state law. Lee, 276 F.3d at 554. The Supreme Court has identified at least seven such approaches. Brentwood Acad., 531 U.S. at 296, 121 S. Ct. 924. “Satisfaction of any one test is sufficient to find state action, so long as no countervailing factor exists.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
Florer, 639 F.3d at 924 (some alterations in Florer) (footnote
omitted). One such test is the “public function” test.
“Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.” Lee, 276 F.3d at 554–55 (internal quotation marks omitted). “The public function test is satisfied only on a showing that the function at issue is ‘both traditionally and exclusively governmental.’” Kirtley, 326 F.3d at 1093 (quoting Lee, 276 F.3d at 555).
Id. at 924-25. As to the issue of whether CCA can fairly be
considered a state actor under the public function test, this
Court is persuaded by the analysis in Knows His Gun v. Montana,
866 F. Supp. 2d 1235 (D. Mont. 2012). In that case, the district
court ruled that CCA, the correctional center, and the warden
were “the government” for purposes of RLUIPA, stating:
The CCA Defendants’ actions are fairly attributable to the state. They were caused by the exercise of the state’s exclusive power to incarcerate prisoners. Rendell–Baker v. Kohn, 457 U.S. 830, 842, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982) (imprisonment is “traditionally the exclusive prerogative” of government); West v. Atkins, 487 U.S. 42, 49–51, 57, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (a private prison’s power to engage in this public function is “possessed by virtue of state law and made possible only because
29

[it] is clothed with the authority of state law”). Prisoners must be provided reasonable opportunities to exercise religious freedom. Florer, 639 F.3d at 925. Here, the Montana Department of Corrections delegated this responsibility to the CCA Defendants. Thus, the CCA Defendants may fairly be said to be state or “government” actors under RLUIPA. West, 487 U.S. at 55–57, 108 S. Ct. 2250 (a private person “fully vested with state authority to fulfill essential aspects of the [State’s] duty” is a state actor); Florer, 639 F.3d at 925; Giron v. Corrections Corp. of Am., 14 F. Supp. 2d 1245, 1249–1251 (D.N.M. 1998) (a private prison serves a public function delegated to it by the state and is thus a state actor with respect to performance of that function). . . .
Id. at 1244-45 (some alterations in Knows His Gun). This Court
adopts that analysis in the instant case and finds that, for
purposes of Plaintiffs’ RLUIPA claims, CCA can fairly be
considered a state actor under the public function test.
Insofar as Defendants’ Motion seeks a ruling that CCA
is not “the government” for purposes of Plaintiffs’ RLUIPA
claims, Defendants’ Motion is DENIED.
B. Spending Clause Authority
This Court now turns to Defendants’ argument that
Plaintiffs’ RLUIPA claims against CCA fail because CCA does not
receive federal funds for housing Hawai`i inmates.
In accordance with other circuits, the Ninth Circuit has held RLUIPA is a valid extension of Congress’s Spending Clause authority under Article I of the Constitution, which allows Congress to condition acceptance of federal funds by states under certain circumstances. See, e.g., Mayweathers v. Newland, 314 F.3d 1062, 1066 (9th Cir. 2002); Madison v. Virginia, 474 F.3d 118, 124
30

(4th Cir. 2006); Cutter v. Wilkinson, 423 F.3d 579, 584-90 (6th Cir. 2005); Benning v. Georgia, 391 F.3d 1299, 1305-08 (11th Cir. 2004); Charles v. Verhagen, 348 F.3d 601, 606-11 (7th Cir. 2003); Sossamon v. Texas, 560 F.3d 316, 328-29 (5th Cir. 2009); Smith v. Allen, 502 F.3d 1255, 1270, 1274 n.9 (11th Cir. 2007); Van Wyhe v. Reisch, 581 F.3d 639, 649 (8th Cir. 2009). Pursuant to Congress’s Spending Clause authority, Congress has conditioned a state’s acceptance of federal financial assistance for “program[s] or activit[ies]” involving institutionalized persons on acceptance of the religious protections afforded under RLUIPA. 42 U.S.C. § 2000cc-1.
Alvarez v. Hill, No. CV 04-884-BR, 2010 WL 582217, at *10 (D. Or.
Feb. 12, 2010) (alterations in Alvarez).
Under RLUIPA, “[t]he term ‘program or activity’ means
all of the operations of any entity as described in paragraph
(1) or (2) of” 42 U.S.C. § 2000d-4a. Section 2000d-4a states, in
pertinent part:
the term “program or activity” and the term “program” mean all of the operations of--
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
. . . .
any part of which is extended Federal financial assistance.
(Emphases added.)
For the same reasons set forth in the discussion of
whether Defendant Sakai is a proper party in Plaintiffs’ claims
for prospective equitable relief and in the discussion of whether
the alleged RLUIPA violations are the result of a governmental
31

policy, see supra §§ II., IV.A., this Court finds that there are genuine issues of material fact as to the issue of whether CCA is an instrumentality of DPS for purposes of § 2000d-4a(1)(A).
Further, Plaintiffs have provided excerpts of DPS’s 2012 Annual Report. It includes an Annual Expenditure Report for Fiscal Year 2012, which reflects that DPS Corrections Programs received a total of $828,521 in federal funds. [Manley Decl., Exh. 18 at 88.] Plaintiffs have also presented evidence that CCA receives federal funds for the incarceration of inmates on behalf of the United States Marshal Service at Saguaro. [Manley Decl, Exh. 28 at ¶ 5.16] It is irrelevant that the federal funds DPS receives are not allocated for out-of-state corrections facilities, and it is irrelevant that the federal funds CCA receives are not allocated for Hawai`i inmates, because § 2000d4a expressly provides that a state department or an instrumentality of a state is a program or activity if any part of the department receives federal funds.
This Court finds, for purposes of the instant Motion, that DPS is a program or activity under RLUIPA. Further, insofar as this Court has found that there are genuine issues of material fact as to whether CCA is an instrumentality of DPS as to the
16 Exhibit 28, [dkt. no. 548-2,] consists of Plaintiffs’ excerpts of the Declaration of Warden Thomas dated July 30, 2013. Defendants originally filed the declaration as part of their July 31, 2013 motion for summary judgment (“2013 Motion”). [Dkt. no. 361.]
32

religious accommodations at issue in this case, this Court finds
that there are genuine issues of material fact as to whether CCA
is a program or activity for purposes of RLUIPA.
This Court agrees with the reasoning in Dean v.
Corrections Corp. of America, 540 F. Supp. 2d 691 (N.D. Miss.
2008), which addressed whether RLUIPA applied in a case involving
a Hawai`i DPS inmate housed at a CCA facility. The district
court in Dean stated:
as shown by the documents provided by the defendants during briefing, the federal government provides aid to the state of Hawaii’s Department of Public Safety, which is responsible for administering corrections in Hawaii. As such, the Hawaii Department of Public Safety is a subdivision of Hawaii’s state government that receives and distributes federal assistance for corrections—and thus falls under the definition of “program” or “activity.” In addition, the state of Hawaii, through its Department of Public Safety, entered into a contract with Corrections Corporation of America to take custody of various Hawaii inmates for the state. As such, for the purposes of RLUIPA, Corrections Corporation of America and the Tallahatchie County Correctional Facility are simply an instrumentality of the Hawaii Department of Public Safety. Hence, under RLUIPA, the program or activity placing a burden on the plaintiff’s exercise of his religion is the Hawaii Department of Public Safety, which receives federal financial assistance. The court therefore has jurisdiction to hear the plaintiff’s claims against the defendants under Religious Land Use and Institutionalized Persons Act.
This holding is consistent with the intent of the drafters of RLUIPA, who included a provision requiring broad interpretation of the statute to provide the most protection for religious exercise: “This chapter shall be construed in favor of a broad protection of religious exercise,
33

to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc–3 (g) (emphasis added). Under that broad interpretation, the court finds that a state government accepting federal funds for prisons may not dispense with requirements of RLUIPA simply by contracting with third parties to carry out the state function of operating prisons. 540 F. Supp. 2d 691 at 693-94 (emphasis in Dean). Pursuant to the analysis in Dean, which this Court adopts, if CCA was acting as an instrumentality of DPS in the decisions at issue in this case, both CCA and DPS placed burdens upon Plaintiffs’ religious exercise. As previously stated, Plaintiffs have at least raised a genuine issue of material fact for trial as to whether any part of CCA receives federal funds. Thus, this Court finds that there are genuine issues of material fact as to the issue of whether CCA is a program or activity under § 2000d-4a, and therefore whether RLUIPA applies to CCA. Insofar as Defendants’ Motion seeks a ruling that Plaintiffs’ RLUIPA claims against CCA fail as a matter of law because RLUIPA does not apply to CCA, Defendants’ Motion is DENIED.17
17 Because this Court has found that there are triable issues of fact as to the question of whether RLUIPA is enforceable against CCA pursuant to Congress’s Spending Clause authority, this Court does not reach Plaintiffs’ alternate arguments that RLUIPA is enforceable against CCA pursuant to Congress’s Commerce Clause authority or Congress’s Enforcement Clause authority.
34

V. Claims for Damages for Violations of the State Constitution Defendants next argue that they are entitled to summary
judgment on all of Plaintiffs’ claims seeking damages for violations of the Hawai`i State Constitution because Hawai`i law does not recognize a direct cause of action under the Hawai`i State Constitution. Plaintiffs respond that there is no Hawai`i case law prohibiting such claims.
In Gonzalez v. Okagawa, the district court ruled, “to the extent Plaintiff is bringing this claim directly under the Hawaii Constitution, Hawaii courts have declined to recognize a direct private cause of action for violation of rights guaranteed under the provisions of the Hawaii Constitution listed by Plaintiffs.” Civil No. 12–00368 RLP, 2013 WL 2423219, at *10 (D. Hawai`i June 4, 2013) (some citations omitted) (citing Makanui v. Dep’t of Educ., 6 Haw. App. 397, 721 P.2d 165, 170 n.2 (Haw. App. 1986) (“We do not decide whether Hawaii recognizes a cause of action for damages for deprivation of rights under the state’s constitution or laws.”); Maizner v. Hawaii Dep’t of Educ., 405 F. Supp. 2d 1225, 1240 (D. Haw. 2005); Galario v. Adewundmi, Civ. No. 07–00159 DAE–KSC, 2009 WL 1227874, at *11 (D. Haw. May 1, 2009) (granting summary judgment against a plaintiff because such a cause of action has not been recognized)).
Similarly, the district court in Ilae v. Tenn stated: Hawai`i does not have a statute or other case-law equivalent to 42 U.S.C. § 1983. Alston v. Read,
35

678 F. Supp. 2d 1061, 1074 (D. Haw. 2010) (citing Mow by Mow v. Cheeseborough, 696 F. Supp. 1360, 1365 (D. Haw. 1988)). The Hawai`i courts thus far have declined to recognize a private cause of action for damages for violations of rights guaranteed under the state constitution. Galario v. Adewundmi, Civ. No. 07–00159 DAE–KSC, 2009 WL 1227874 at *11 (D. Haw. 2009) (reversed on other grounds by Galario v. Adewundmi, 2013 WL 3157511 (9th Cir. 2013)) (citing Makanui v. Dep’t. of Educ., 6 Haw. App. 397, 403 (1986)). Plaintiff does not cite to any legal authority in support of such a claim, and this Court declines to infer that such a cause of action exists under the Hawai`i Constitution.
Civ. No. 12–00316 ACK–KSC, 2013 WL 4499386, at *17 (D. Hawai`i
Aug. 20, 2013) (some citations omitted).
This Court has supplemental jurisdiction over
Plaintiffs’ claims alleging violations of the Hawai`i State
Constitution. See 28 U.S.C. § 1367(a). “When a district court
sits in diversity, or hears state law claims based on
supplemental jurisdiction, the court applies state substantive
law to the state law claims.” Mason & Dixon Intermodal, Inc. v.
Lapmaster Int’l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011). This
Court has recognized that:
When interpreting state law, a federal court is bound by the decisions of a state’s highest court. Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 427 (9th Cir. 2011). In the absence of a governing state decision, a federal court attempts to predict how the highest state court would decide the issue, using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance. Id.; see also Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d 940, 944 (9th Cir. 2004) (“To the
36

extent this case raises issues of first impression, our court, sitting in diversity, must use its best judgment to predict how the Hawai`i Supreme Court would decide the issue.” (quotation and brackets omitted)). Evanston Ins. Co. v. Nagano, 891 F. Supp. 2d 1179, 1189 (D. Hawai`i 2012) (some citations omitted). This Court agrees with the analysis in Gonzalez and Ilae, and predicts that the Hawai`i Supreme Court would not recognize a claim for damages arising directly under the Hawai`i State Constitution. This Court therefore concludes that Defendants are entitled to judgment as a matter of law and GRANTS Defendants’ Motion as to all of Plaintiffs’ claims for damages arising directly under the Hawai`i State Constitution. VI. Plaintiff Galdones’s Claim Seeking Punitive Damages In their Reply, Defendants ask this Court to grant summary judgment on Plaintiff Galdones’s request for punitive damages associated with his state law retaliation claim. Defendants contend that they are entitled to summary judgment because Plaintiff Galdones has not presented sufficient evidence of an evil mind or reckless indifference to create a triable issue of fact. [Reply at 17-19.] Plaintiffs filed a motion to strike this argument from the Reply, arguing that it was improper for Defendants to raise a new argument that Defendants did not address in the Motion. [Motion to Strike New Arguments and New Affidavit in Defendants’ Reply on Motion for Summary Judgment Re:
37

Sovereign Immunity/Damages, filed 7/3/14 (dkt. no. 567).] This Court denied the motion to strike, ruling that, in light of the timing of the Motion in relation to the filing of the 6/2/14 Reconsideration Order and the 6/13/14 Summary Judgment Order, and in light of the fact that Plaintiffs previously had a full opportunity to brief the issue, it was proper for Defendants to renew their request for summary judgment on the punitive damages issue in the Reply. [EO, filed 7/10/14 (dkt. no. 575).]
First, insofar as Plaintiff Galdones’s state law retaliation claim seeks damages directly under the Hawai`i State Constitution, the claim fails for the reasons set forth supra § V. Further, even if there is an independent legal basis for Plaintiff Galdones’s state law retaliation claim other than the Hawai`i State Constitution, he has not identified sufficient evidence to create a genuine issue of material fact for trial as to his entitlement to punitive damages.
[T]o prove he or she is entitled to punitive damages, a plaintiff “must prove by clear and convincing evidence that the defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, or where there has been some wilful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences.” Fisher v. Grove Farm Co., Inc., 123 Hawai`i 82, 123, 230 P.3d 382, 423 (Ct. App. 2009) (quoting Masaki v. General Motors Corp., 71 Haw. 1, 16–17, 780 P.2d 566, 575 (1989)).
38

Defendants’ 2013 Motion argued both that Plaintiff Galdones’s state law retaliation claim was meritless and, even if the claim itself survived summary judgment, his request for punitive damages was meritless. [Mem. in Supp. of 2013 Motion at 53-58.] In their memorandum in opposition to the 2013 Motion, Plaintiffs argued that this Court should deny the 2013 Motion as to Plaintiff Galdones’s state law retaliation claim because “a trier of fact could conclude that protected activity was a ‘substantial’ factor in the write-up of Galdones.” [Mem. in Opp. to 2013 Motion, filed 1/6/14 (dkt. no. 465), at 40.] Plaintiffs’s memorandum in opposition to the 2013 Motion did not address Defendants’ punitive damages argument. As to Plaintiff Galdones’s state law retaliation claim, Plaintiffs’ concise statement of facts in opposition to the 2013 Motion (“Plaintiffs’ CSOF in Opposition to 2013 Motion”) states only that he “was falsely disciplined for using the Hawaiian classes as a ‘legal medium.’” [Filed 1/6/14 (dkt. no. 466), at ¶ 155 (citing Pltfs.’ CSOF in Opp. to 2013 Motion, Decl. of Sharla Manley, Exh. 79).18] Exhibit 79 includes Plaintiff Galdones’s CCA Inmate/Resident Disciplinary Report, which ultimately led to the disciplinary segregation at issue in his state law retaliation claim. In their memorandum in opposition to Defendants’ motion for reconsideration of the 3/31/14 Summary Judgment Order, Plaintiffs
18 Exhibit 79 is docket number 470-1. 39

argued that, on its face, Exhibit 79: “raises a reasonable inference that Galdones was charged with a disciplinary violation because Defendants thought that Galdones had spoken in favor of this lawsuit to other inmates in the Native Hawaiian religious classes[;]” and “raises a reasonable inference that Galdones was charged with a disciplinary violation because Defendants believed that he was deviating from the religious protocol suggested by the spiritual advisor from Hawaii.” [Mem. in Opp. to Motion for Reconsideration, filed 4/28/14 (dkt. no. 511), at 13 & n.8.] Plaintiffs also argued that Defendants’ position that Plaintiff Galdones was placed in disciplinary segregation because he disrupted an inmate head count is inconsistent with Exhibit 79, which does not mention the head count incident. Plaintiffs argued that the inconsistencies suggest that the stated reasons for Plaintiff Galdones’s placement in disciplinary segregation were pretextual. [Id. at 4 & nn.9-10.]
Even if this Court accepts Plaintiffs’ interpretation of Exhibit 79, the exhibit does not provide evidence that the disciplinary segregation was imposed so “wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, or where there has been some wilful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences.” See Fisher, 123 Hawai`i at 123, 230 P.3d at 423 (internal
40

quotation marks omitted). Plaintiff Galdones has not identified any other evidence that supports his request for punitive damages. This Court therefore finds that, even viewing the record in the light most favorable to Plaintiff Galdones, he has failed to identify sufficient evidence to raise a genuine issue of fact for trial as to his entitlement to punitive damages for his state law retaliation claim.
This Court finds that there are no genuine issues of material fact as to Plaintiff Galdones’s request for punitive damages and concludes that Defendants are entitled to judgment as a matter of law. To the extent that any portion of Plaintiff Galdones’s state law retaliation claim remains, Defendants’ Motion is GRANTED as to Plaintiff Galdones’s request for punitive damages.
CONCLUSION On the basis of the foregoing, Defendants’ Motion for Summary Judgment Re: Sovereign Immunity/Damages, filed May 13, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. Defendants’ Motion is GRANTED insofar as this Court rules that: 1) Defendant Sakai is entitled to summary judgment as to any of Plaintiffs’ § 1983 claims against him seeking damages or retrospective relief; 2) Plaintiffs’ remaining § 1983 claims and RLUIPA claims for damages are limited to compensatory damages and nominal damages; 3) Defendants are entitled to summary judgment as to
41

Plaintiffs’ claims seeking damages or retrospective relief directly under the Hawai`i State Constitution; and 4) to the extent that any portion of Plaintiff Galdones’s state law retaliation claim remains, Defendants are entitled to summary judgment as to his request for punitive damages. Defendants’ Motion is DENIED in all other respects.
IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, July 31, 2014.
/s/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge
RICHARD KAPELA DAVIS, ET AL. V. NEIL ABERCROMBIE, ET AL.; CIVIL NO. 11-00144 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN IMMUNITY/DAMAGES
42

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAI POAHA, )

TYRONE KAWAELANILUA`OLE

)

NA`OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; TED SAKAI, in his

)

official capacity as the

)

Director of the Hawaii

)

Department of Public Safety; )

CORRECTIONS CORPORATIONS OF )

AMERICA,

)

)

Defendants.

)

_____________________________ )

CIVIL NO. 11-00144 LEK-BMK

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AMENDED SECOND MOTION FOR CLASS CERTIFICATION
On July 1, 2014, Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, and Kalai K. Poaha (collectively “Plaintiffs”) filed their Amended Second Motion for Class Certification (“Motion”). [Dkt. no. 560.1] Defendants Ted Sakai, in his official capacity as the

1 This Court granted Plaintiffs leave to incorporate by reference the supporting documents that they submitted with their Motion for Class Certification, filed on June 4, 2013 (“2013 Certification Motion”). [Dkt. nos. 310, 311, 312, 314 through
(continued...)

Director of the Hawai`i Department of Public Safety (“Defendant Sakai” and “DPS”), and Corrections Corporation of America (“CCA,” collectively “Defendants”) filed their memorandum in opposition on July 29, 2014, and Plaintiffs filed their reply on August 7, 2014. [Dkt. nos. 589,2 614.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). The Court issued its preliminary ruling on the Motion on August 21, 2014. [Dkt. no. 630.] The instant Order is this Court’s decision on the Motion, and this Order supersedes the August 21, 2014 preliminary ruling.
After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Plaintiffs’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
1(...continued) 320.] On July 2, 2014, Plaintiffs filed a motion seeking leave to file publicly Exhibits 44 through 55 in support of the Motion, which this Court granted in part and denied in part on August 7, 2014. [Dkt. nos. 563, 613.] Plaintiffs filed the exhibits on August 14, 2014. [Dkt. no. 623, 628 (unredacted version of Exh. 44 filed under seal).]
2 On July 29, 2014, Defendants filed a motion seeking leave to file publicly their memorandum of law, Table 1, and Exhibits 4 through 11. This Court granted the motion on August 7, 2014. [Dkt. nos. 588, 612.] Defendants filed the documents on August 8, 2014. [Dkt. no. 615.]
2

BACKGROUND The relevant factual and procedural background in this case is set forth in this Court’s June 13, 2014 Amended Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron’s Counter-motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act (“6/13/14 Summary Judgment Order”) and in this Court’s July 31, 2014 Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment Re: Sovereign Immunity/Damages (“7/31/14 Summary Judgment Order”). [Dkt. nos. 544, 596.3] This Court incorporates the background sections of the 6/13/14 Summary Judgment Order and the 7/31/14 Summary Judgment Order in the instant Order. In their Motion, Plaintiffs seek certification of two classes, one addressing prospective relief and one addressing damages. I. Prospective Relief Plaintiffs seek certification pursuant to Fed. R. Civ. P. 23(b)(2) of a class of persons pursuing prospective and
3 The 6/13/14 Summary Judgment Order is available at 2014 WL 2716856, and the 7/31/14 Summary Judgment Order is available at 2014 WL 3809499.
3

declaratory relief against Defendants (“Prospective Relief
Class”). Plaintiffs propose the following definition of the
Prospective Relief Class:
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are and/or will be confined to Saguaro Correctional Center; (c) in general population; and (d) who declare that Native Hawaiian religion is their faith.
[Motion at 4.] The Prospective Relief Class would pursue the
following claims from Plaintiffs’ Second Amended Complaint for
Damages and for Classwide Declaratory and Injunctive Relief
(“Second Amended Complaint”) [filed 8/22/12 (dkt. no. 145)]:
•Counts I (federal free exercise), VI (federal equal protection), XI (state free exercise), XVI (state equal protection), and XXII (Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”)) regarding daily, outdoor, group worship;
•Counts III (federal free exercise), XIII (state free exercise), and XXIV (RLUIPA) regarding lack of daily access to personal amulets and `ohe hano ihu (bamboo nose flute); and
•Counts VIII (federal equal protection) and XVIII (state equal protection) regarding lack of daily access to personal amulets, `ohe hano ihu, coconut oil, and malo, kihei, and pau (native garments).
[Motion at 4-5.]
Plaintiffs also propose three Rule 23(b)(2) subclasses
of persons seeking prospective relief against Defendants
(collectively “Prospective Relief Subclasses”).
4

A. Administrative Segregation
Plaintiffs propose the following definition of the
“Administrative Segregation Prospective Relief Subclass:”
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are and/or will be confined to Saguaro Correctional Center; (c) in administrative segregation; and (d) who declare that Native Hawaiian religion is their faith.
[Id. at 5.] The Administrative Segregation Prospective Relief
Subclass would pursue the following claims from the Second
Amended Complaint:
•Counts II (federal free exercise), VII (federal equal protection), XII (state free exercise), XVII (state equal protection), and XXIII (RLUIPA) regarding the observance of Makahiki in administrative segregation;
•Counts III, VIII, XIII, XVIII, and XXIV regarding lack of daily access to sacred items in administrative segregation; and
•Counts V (federal free exercise), X (federal equal protection), XV (state free exercise), XX (state equal protection), and XXVI (RLUIPA) regarding access to a spiritual advisor in administrative segregation.4
[Id. at 5-6.]
B. SHIP
Plaintiffs propose the following definition of the
“SHIP Prospective Relief Subclass:”
4 Plaintiffs also include Count XXV in the list of claims regarding access to a spiritual advisor in restricted custody, but that appears to be an error because Count XXV relates to access to a sacred space.
5

(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are and/or will be confined to Saguaro Correctional Center; (c) in the Special Housing Incentive Program (“SHIP”); and (d) who declare that Native Hawaiian religion is their faith.
[Id. at 6.] The SHIP Prospective Relief Subclass would pursue
the same claims as the Administrative Segregation Prospective
Relief Subclass. [Id.]
C. Protective Custody
Plaintiffs propose the following definition of the
“Protective Custody Prospective Relief Subclass:”
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are and/or will be confined to Saguaro Correctional Center; (c) in protective custody; and (d) who declare that Native Hawaiian religion is their faith.
[Id. at 7.] The Protective Custody Prospective Relief Subclass
would pursue the following claims from the Second Amended
Complaint:
•Counts I, VI, XI, XVI, and XXII regarding daily, outdoor, group worship;
•Counts III, XIII, and XXIV regarding lack of daily access to personal amulets and `ohe hano ihu and lack of access to communal sacred items; and
•Counts VIII and XVIII regarding lack of access to personal amulets, `ohe hano ihu, coconut oil, and malo, kihei, and pau and lack of access to communal sacred items.
[Id. at 7-8.]
6

II. Damages
Plaintiffs seek certification pursuant to Rule 23(b)(3)
of a class of persons pursuing damages against CCA (“Damages
Class”). Plaintiffs propose the following definition of the
Damages Class:
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are or were confined to Saguaro or Red Rock Correctional Center at any time within four years prior to the filing of this Complaint until the resolution of this lawsuit; (c) in general population; and (d) who declare that Native Hawaiian religion is their faith.
[Motion at 8.]
Plaintiffs also propose three Rule 23(b)(3) subclasses
of persons seeking damages against CCA (collectively “Damages
Subclasses”).
A. Administrative Segregation
Plaintiffs propose the following definition of the
“Administrative Segregation Damages Subclass:”
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are or were confined to Saguaro Correctional Center at any time within four years prior to the filing of this Complaint until the resolution of this lawsuit; (c) in administrative segregation; and (d) who declare that Native Hawaiian religion is their faith.
[Id.]
7

B. SHIP
Plaintiffs propose the following definition of the
“SHIP Damages Subclass:”
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are or were confined to Saguaro Correctional Center at any time within four years prior to the filing of this Complaint until the resolution of this lawsuit; (c) in the SHIP; and (d) who declare that Native Hawaiian religion is their faith.
[Id. at 9.]
C. Protective Custody
Finally, Plaintiffs propose the following definition of
the “Protective Custody Damages Subclass:”
(a) all persons who were convicted of violating crimes under the laws of the state of Hawaii and were residents of the state of Hawaii; (b) who are or were confined to Red Rock at any time within four years prior to the filing of this Complaint until the resolution of this lawsuit; (c) in protective custody; and (d) who declare that Native Hawaiian religion is their faith.
[Id.]
STANDARD
“[T]he district court facing a class certification
motion is required to conduct ‘a rigorous analysis’ to ensure
that the Rule 23 requirements are satisfied.” Conn. Ret. Plans &
Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011)
(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102
S. Ct. 2364, 72 L. Ed .2d 740 (1982)). “Parties seeking class
8

certification bear the burden of demonstrating that they have met
each of the four requirements of Federal Rule of Civil Procedure
23(a) and at least one of the requirements of Rule 23(b).” Ellis
v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011)
(citations omitted). In the instant case, Plaintiffs seek
certification pursuant to Rule 23(b)(2) and (b)(3). Rule 23
states, in pertinent part:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
. . . .
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action
9

is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. The Rule 23(a) requirement are known as: “(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.” Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014) (footnote omitted). Where the party also seeks certification of subclasses,
each subclass “must independently meet Rule 23’s prerequisites.”
Baker v. Castle & Cooke Homes Hawaii, Inc., Civil No. 11–00616 SOM–RLP, 2014 WL 1669158, at *16 (D. Hawai`i Apr. 28, 2014) (emphasis in Baker) (citing Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981) (noting that a subclass “must independently meet all of rule 23’s requirements for maintenance of a class action”)).
10

This district court has recognized that:
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original). Analyzing whether Rule 23’s prerequisites have been met will “frequently entail overlap with the merits of the plaintiff’s underlying claim . . . [because] class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).
Id. at *3-4 (alterations in Baker).
DISCUSSION
I. Prejudicial Delay
Defendants first argue that this Court must deny
Plaintiffs’ Motion because the ruling comes three and a half
years after the filing of the original Complaint and only weeks
before the September 30, 2014 scheduled trial date. Defendants
argue that they have been prejudiced by the delay, and this Court
should deny the Motion on that basis without even reaching the
analysis of Rule 23(a) and (b).
Rule 23(c)(1) states: “At an early practicable time
after a person sues or is sued as a class representative, the
court must determine by order whether to certify the action as a
class action.” Plaintiffs filed the original Complaint on
February 7, 2011 in state court, and Defendants removed the
11

action on March 8, 2011. [Dkt. no. 1.] On March 22, 2012, Plaintiffs filed a Motion to Compel Class Certification. Plaintiffs sought an order compelling Defendants to produce discovery that Plaintiffs argued was indispensable in identifying the putative class. [Dkt. no. 66.] On May 11, 2012, the magistrate judge issued an order granting the motion in part and, on May 25, 2012, Defendants moved to reconsider the order. [Dkt. nos. 85, 89.] The magistrate judge orally denied the motion for reconsideration on July 31, 2012.5 [Minutes (dkt. no. 122).]
On August 8, 2012, the magistrate judge orally ordered Plaintiffs to file their motion for class certification by October 31, 2012. [Minutes (dkt. no. 133).] On October 18, 2012, however, the magistrate judge vacated that deadline. [Minutes (dkt. no. 195).] By the November 15, 2012 status conference, Defendants had just sent their production of class discovery to Plaintiffs, and the magistrate judge ordered Defendants to produce, inter alia, a privilege log to Plaintiffs by December 6, 2012. [Minutes (dkt. no. 211).] The parties were still addressing issues related to the privilege log in February 2013. [Minutes, filed 2/7/13 (dkt. no. 228).]
As previously noted, Plaintiffs filed their 2013 Certification Motion on June 4, 2013. This Court ruled that, in
5 The magistrate judge issued a written order denying the motion for reconsideration on September 20, 2012. [Dkt. no. 171.]
12

the interests of judicial economy, the parties should not brief the 2013 Certification Motion until this Court ruled on Defendants’ pending motion for summary judgment. [EO, filed 7/31/13 (dkt. no. 364).] This Court later deemed the 2013 Certification Motion withdrawn and gave Plaintiffs leave to refile it after the hearing on Defendants’ motion for summary judgment. [EO, filed 8/21/13 (dkt. no. 373).] On January 27, 2014, this Court held a hearing on, inter alia, Defendants’ motion for summary judgment, and this Court issued its written order addressing that motion, and others, on March 31, 2014 (“3/31/14 Summary Judgment Order”). [Dkt. no. 497.6]
On April 8, 2014, Plaintiffs filed their Second Motion for Class Certification (“2014 Certification Motion”). [Dkt. no. 498.] This Court continued the hearing on the 2014 Certification Motion from June 30, 2014 to August 11, 2014. [Minutes, filed 4/21/14 (dkt. no. 508).] The instant Motion is the amended version of the 2014 Certification Motion to address the 6/13/14 Summary Judgment Order. [Motion at 2.] This Court later vacated the hearing and decided to consider the Motion as a non-hearing motion. [EO, filed 8/4/14 (dkt. no. 603).]
6 The 3/31/14 Summary Judgment Order, which is available at 2014 WL 1321006, is the original version of the 6/13/14 Summary Judgment Order. This Court amended the 3/31/14 Summary Judgment Order after granting in part and denying in part Defendants’ motion for reconsideration of the 3/31/14 Summary Judgment Order. [Dkt. nos. 500 (motion), 529 (order).]
13

Under the circumstances of this case, the Court finds that Plaintiffs did not unduly delay seeking class certification. Further, a significant portion of Defendants’ prejudice argument addresses Plaintiffs’ request to certify the Damages Class and the Damages Subclasses. In light of this Court’s rulings imposing significant limitations on the damages class and subclasses that this Court ultimately certifies, CCA will not suffer undue prejudice as a result of certification. Defendants also argue that class certification at this time would be prejudicial to them because “the parties have a firm trial set for September 30, 2014,” and there will be insufficient time to notify absent class members. [Mem. in Opp. at 6.] Defendants are mistaken. In fact, on August 21, 2014, this Court vacated the September 30, 2014 trial date in light of a criminal case scheduled to begin on September 23, 2014 and expected to conclude at the end of the October. [Dkt. no. 631.] The trial in the instant case is currently scheduled to begin on March 17, 2015. [Second Amended Rule 16 Scheduling Order, filed 8/28/14 (dkt. no. 638), at ¶ 1.] In light of the continuance of the September 30, 2014 trial date, which was unrelated to class certification issues, Defendants have not identified any prejudice that warrants denial of class certification.
This Court therefore finds that this is the earliest practicable time that it could consider whether class
14

certification was appropriate.
II. Class Certification as to Claims for Prospective Relief
This Court first turns to the Rule 23(a) analysis.
A. Numerosity
This Court has recognized that:
The numerosity inquiry “requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. E.E.O.C., 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980). Courts, however, have found the numerosity requirement to be satisfied when a class includes at least 40 members. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (noting that “numerosity is presumed at a level of 40 members”) (citation omitted); In re Nat’l W. Life Ins. Deferred Annuities Litig., 268 F.R.D. 652, 660 (S.D. Cal. 2010) (noting that “[c]ourts have found joinder impracticable in cases involving as few as forty class members”) (citations omitted); E.E.O.C. v. Kovacevich “5” Farms, No. CV–F–06–165 OWW/TAG, 2007 WL 1174444, at *21 (E.D. Cal. Apr. 19, 2007) (noting that “[c]ourts have routinely found the numerosity requirement satisfied when the class comprises 40 or more members”); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988) (noting that “[a]s a general rule, classes of 20 are too small, classes of 20–40 may or may not be big enough depending on the circumstances of each case, and classes of 40 or more are numerous enough”).
Davis v. Four Seasons Hotel Ltd., 277 F.R.D. 429, 435 (D. Hawai`i
2011) (alterations in Davis).
1. Prospective Relief Class
As this Court noted in the 6/13/14 Order, there are 179
inmates at Saguaro Correctional Center (“Saguaro”) that have
15

registered as practitioners of the Native Hawaiian religion. 2014 WL 2716856, at *23. Defendants do not challenge the numerosity requirement as to the Prospective Relief Class’s claims regarding daily, outdoor, group worship. Defendants, however, argue that the Prospective Relief Class does not meet the numerosity requirement as to their claims regarding access to sacred items. [Mem. in Opp. at 8.]
In support of the instant Motion, Plaintiffs have provided declarations by Plaintiffs Davis, Kane, Hughes, and Keawe, [2013 Certification Motion, Decl. of Sharla Manley (“Manley 2013 Decl.”), Exhs. 30, 32-36,7] as well as Plaintiff Holbron and more than thirty putative members of the classes and/or subclasses [2013 Certification Motion (dkt. nos. 320, 3201 to 320-40)]. Defendants argue that the Prospective Relief Class does not meet the numerosity requirement as to the claims regarding access to sacred items because: only five “challeng[e] or complain[] against the denial of a personal amulet[;]” none of the named Plaintiffs or the putative class members who submitted declarations “even mentions coconut oil[;]” and “only eight inmates stated a desire for in-cell daily access to bamboo nose
7 The Manley 2013 Declaration is docket number 310-3. Exhibits 30 and 33 are declarations by Plaintiff Davis. [Dkt. nos. 318-7, 318-10.] Exhibits 32 and 35 are declarations by Plaintiff Kane. [Dkt. nos. 318-9, 319-1.] Exhibit 34 is a declaration by Plaintiff Hughes, [dkt. no. 319,] and Exhibit 36 is a declaration by Plaintiff Keawe [dkt. no. 319-2].
16

flutes.” [Mem. in Opp. at 9-10.]
Plaintiffs argue that their submissions do not
represent “an exhaustive list of every incident involving the
denial of access to an amulet or another sacred item. Rather,
they are illustrative[.]” [Reply at 4.] Plaintiffs argue that
the Prospective Relief Class are all “subject to the same
discriminatory and unlawful set of policies and face a risk that
their rights will be violated.” [Id. at 3.] This Court agrees.
In the 6/13/14 Summary Judgment Order, this Court
stated that:
Saguaro has a list of the types of religious items that all inmates are permitted to keep in their cells (“the Retention List”). Pursuant to the Retention List, practitioners of the Native Hawaiian religion may keep the following items in their cells: “sea salt, a ti leaf lei, coconut oil, a lava lava and an amulet.” [Thomas Decl. at ¶ 52.] In addition, they may keep “written religious materials to include books, genealogy, chants and prayers. General population Native Hawaiian practitioners may also check out a ukulele from the chapel.” [Thomas Reply Decl. at ¶ 122.] Saguaro “is working to identify a vendor for the amulets and is also working to locate a vendor for coconut oil.” [Thomas Decl. at ¶ 52.] . . .
2014 WL 2716856, at *29.8 All of Saguaro’s inmates who are in
8 The document that the 6/13/14 Summary Judgment Order referred to as the “Thomas Decl.” is the Declaration of Warden Thomas, submitted with the Concise Statement of Facts in Support of Defendants’ Motion for Summary Judgment, filed July 31, 2013. [Dkt. no. 361-23.] The document referred to as the “Thomas Reply Decl.” is the Declaration of Warden Thomas, submitted with the reply in support of Defendants’ Motion for Summary Judgment,
(continued...)
17

the general population and who are practitioners of the Native Hawaiian religion are subject to the Retention List, and the policies, procedures, and practices associated therewith. Plaintiffs allege that Defendants’ conduct with regard to the sacred items remaining at issue in this case is unconstitutional and/or violates RLUIPA. Thus, all of Saguaro’s inmates who are in the general population and who are practitioners of the Native Hawaiian religion are arguably at risk of the same violation of their rights.
This Court therefore FINDS that the Prospective Relief Class satisfies the numerosity requirement as to both the remaining claims regarding daily, outdoor, group worship and the remaining claims regarding access to sacred items.
2. Prospective Relief Subclasses First this Court notes that, although the Motion requests certification of the Administrative Segregation Prospective Relief Subclass, the SHIP Prospective Relief Subclass, and the Protective Custody Prospective Relief Subclass, Plaintiffs’ Memorandum in Support of the Motion blurs the distinction between these three subclasses. See, e.g., Mem. in Supp. of Motion at 5 (“segregation and protective custody subclasses should be certified”), 10 (“Common questions arise
8(...continued) filed January 13, 2014. [Dkt. no. 483-10.]
18

from the disparate treatment of Native Hawaiian religious practitioners in restrictive custody.”). Insofar as Plaintiffs have expressly moved for certification of a subclass for each group, this Court will begin its analysis by examining each proposed subclass separately.
a. SHIP Prospective Relief Subclass In the Motion, Plaintiffs assert that “[t]he proposed segregation subclass consists of more than 20 inmates.” [Mem. in Supp. of Motion at 20 (citing Decl. of Robert A. Holbron, filed 12/20/13 (dkt. no. 436-4) (“Holbron Summary Judgment Decl.”),9 at ¶ 34).] Plaintiff Holbron was in administrative segregation from July 17, 2007, until he was assigned to SHIP around April 10, 2009. Holbron remained in SHIP until February 2012. [Holbron Summary Judgment Decl. at ¶ 9.] He states that, “in all the time that [he] was in segregation/SHIP at Saguaro, [he] can recall only one limited Makahiki Service being permitted for him in segregation. At this Makahiki service, more than 20 other Native Hawaiian inmates gathered in the unit’s dayroom.” [Id. at ¶ 34.] Although the declaration is ambiguous, Plaintiff Holbron must have been referring to a Makahiki service for SHIP
9 The Holbron Declaration was part of his Opposition to Defendants’ Motion for Summary Judgment and Counter-Motion for Summary Judgment on His Federal Claims. The version of the Holbron Declaration filed on December 20, 2013 was undated and unsigned. Plaintiffs filed the original version on December 27, 2013. [Dkt. no. 456-1.] It is signed and dated December 23, 2013.
19

inmates because SHIP II inmates are permitted to socialize with other SHIP II inmates in a dayroom pod for one hour a day, five times a week. SHIP III inmates also have dayroom pod time for two hours a day, five day times a week (at separate times from the SHIP II inmates). Inmates in administrative segregation, however, are not allowed to gather with inmates from the general population, SHIP, or protective custody, and apparently administrative segregation inmates are not permitted dayroom time when they can gather with one another. Inmates in SHIP I have the same restrictions as the inmates in administrative segregation. [Letter dated 8/28/14 to this Court from Defendants’ counsel transmitting the parties’ joint descriptions of Saguaro’s administrative segregation, SHIP, and protective custody program, filed 9/16/14 (dkt. no. 641).10] Further, the Reply clarifies that the twenty inmates that Plaintiffs refer to are inmates in SHIP. [Reply at 5.] Defendants do not contest Plaintiffs’ assertion that there are “20 segregation inmates registered as Native Hawaiians.” [Mem. in Opp. at 8.] This Court therefore finds, for purposes of the instant Motion, that there are twenty potential members of the SHIP Prospective Relief
10 This Court will refer to the descriptions, each of which is one page, as the “Administrative Segregation Description,” the “SHIP Description,” and the “Protective Custody Description.” The parties filed these descriptions pursuant to this Court’s preliminary ruling on the Motion. [Filed 8/21/14 (dkt. no. 630).]
20

Subclass. Defendants argue that a class of twenty is too small to
satisfy the numerosity requirement, emphasizing that the United States Supreme Court has indicated that a class of fifteen would be too small. [Id. (citing Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 330 (1980)).] Plaintiffs argue that twenty SHIP inmates is sufficiently numerous to render joinder impractical, particularly because the group of potential class members is fluid. See, e.g., Reply at 5 (stating that, “at any given time, there are at least 20 Native Hawaiian practitioners” in SHIP).
Other district courts have recognized that the fluidity of a class of inmates supports a finding that joinder is impracticable. See, e.g., Decoteau v. Raemisch, Civil Action No. 13–cv–3399–WJM–KMT, 2014 WL 3373670, at *2 (D. Colo. 2014) (citing U.S. ex rel. Green v. Peters, 153 F.R.D. 615, 618 (N.D. Ill. 1994); Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985); Arthur v. Starrett City Assocs., 98 F.R.D. 500, 505–06 (E.D.N.Y. 1983)). According to the SHIP Description:
SHIP is a pro-social behavioral modification step-down program utilized to transition inmates from administrative segregation to general population. Privileges are introduced as inmates progress from the first to the last step: SHIP I, SHIP II, and SHIP III. Each step lasts six months but an inmate can be returned to a previous step for engaging in rules violations or non-pro-social behavior. . . .
21

In light of the fact that the intended duration of SHIP is eighteen months, this Court cannot find that the SHIP Prospective Relief Subclass is so fluid as to overcome the fact that there are only twenty potential members. This Court therefore FINDS that the SHIP Prospective Relief Subclass does not meet the numerosity requirement, i.e. the subclass is not so numerous that joinder is impracticable.11
b. Administrative Segregation Prospective Relief Subclass
Plaintiffs have not identified any evidence of the number of prospective members of the Administrative Segregation Prospective Relief Subclass. This Court therefore FINDS that Plaintiffs have failed to meet their burden of establishing that the Administrative Segregation Prospective Relief Subclass satisfies the numerosity requirement.
Plaintiffs may argue that a combined subclass of inmate practitioners of the Native Hawaiian religion in both administrative segregation and SHIP would meet the numerosity requirement. Insofar as Plaintiffs have not identified evidence of the number of potential members in the Administrative Segregation Prospective Relief Subclass, this Court cannot determine whether a combined subclass would meet the numerosity
11 This Court notes that the deadline to add parties has passed. [Second Amended Rule 16 Scheduling Order, filed 8/28/14 (dkt. no. 638), at ¶ 5.] That, however, does not render joinder impracticable for purposes of Rule 23(a)(1).
22

requirements. Further, for the reasons set forth infra
Discussion Sections II.B.2.a., C.2.a., and D.2.a., this Court
finds that it is not appropriate to combine the Administrative
Segregation Prospective Relief Subclass and the SHIP Prospective
Relief Subclass.
c. Protective Custody Prospective Relief Subclass
Plaintiffs assert that the proposed Protective Custody
Prospective Relief Subclass consists of at least thirty-seven
inmates. The Motion, however, did not cite any evidence for this
representation. [Mem. in Supp. of Motion at 20.] In the Reply,
Plaintiffs state, again without citing any supporting evidence,12
that “there were 37-43 inmates who were practicing Native
Hawaiian religion at any given time” in protective custody at Red
Rock.13 [Reply at 5.] Defendants, however, do not contest that
12 Although not cited in the Memorandum in Support of the Motion, Ms. Manley’s declaration states that she has reviewed the records that Defendants produced in response to a court order compelling class discovery [filed 5/11/12 (dkt. no. 85)]. She states that, according to these records, “there are at least 37 inmates who have participated in Native Hawaiian religious programming at Red Rock” Correctional Center (“Red Rock”). [Motion, Decl. of Sharla Manley (“Manley 2014 Decl.”) at ¶¶ 1011.] Plaintiffs, however, did not attach any of these records as exhibits, and Ms. Manley only identifies the records by batesstamp numbers because they “have been designated attorneys’ eyes only under that order.” [Id.] This Court notes that Plaintiffs could have filed a motion for leave to file those exhibits under seal. This Court therefore declines to consider Ms. Manley’s representations about the content of the class discovery.
13 As this Court noted in the 6/13/14 Order, by May 30, (continued...)
23

there are thirty-seven potential members of the Protective Custody Prospective Relief Subclass. Instead, they argue that thirty-seven is not sufficient to meet the numerosity requirement. [Mem. in Opp. at 8.] This Court therefore finds, for purposes of the instant Motion, that there are thirty-seven potential members of the Protective Custody Prospective Relief Subclass.
According to the Protective Custody Description, “[p]rotective custody (‘PC’) is a housing classification utilized to segregate inmates who require protection from other inmates at the same facility. . . . PC is a non-punitive type of segregation.” Because there is no specified duration of time that a protective custody inmate may be in that program, this Court finds that the Protective Custody Prospective Relief Subclass is a fluid class for purposes of the numerosity analysis. This Court also emphasizes that the number of potential members of this subclass is very close to the number that is generally considered presumptively sufficient for the numerosity analysis. This Court therefore FINDS that the Protective Custody Prospective Relief Subclass satisfies the numerosity requirement.
13(...continued) 2013, all of the Hawai`i inmates who were assigned to Red Rock were permanently transferred to Saguaro. 2014 WL 2716856, at *2 n.4 (citations omitted).
24

B. Commonality
The United States Supreme Court has stated that, in
order to meet the commonality requirement, the proposed class
members’ claims
must depend upon a common contention . . . . That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
“What matters to class certification . . . is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(quoting Richard A. Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Plaintiffs need not show, however, that “every question in the case, or even a preponderance of questions, is capable of class wide resolution. So long as there is ‘even a single common question,’ a would-be class can satisfy the commonality requirement of Rule 23(a)(2).” Wang [v. Chinese Daily News, Inc.], 737 F.3d [538,] 544 [(9th Cir. 2013)] (quoting Wal–Mart, 131 S. Ct. at 2556); see also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that “commonality only requires a single significant question of law or fact”). Thus, “[w]here the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists.” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029
25

(9th Cir. 2012) (quotation marks and citation omitted).
Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (footnote
omitted).
1. Prospective Relief Class
Defendants argue that the Prospective Relief Class does
not meet the commonality requirement because “the existence of
CCA policies or practices is not in serious dispute,” and
[t]he success or failure of Plaintiffs’ RLUIPA and First Amendment claims necessarily turns on individual inquiries — whether a Native-Hawaiian practice is sincerely held by a given practitioner, the subject security classification implicated by the practice (whether it is an inmate’s desire to retain an amulet despite his history of contraband, or a combative or peaceful inmate’s desire to attend outdoor, group worship), and whether the CCA practices are based on compelling security interests without a lessrestrictive alternative. . . .
[Mem. in Opp. at 15 (footnote omitted).] The Ninth Circuit,
however, has rejected this type of argument.
In Parsons v. Ryan, the defendants - Arizona Department
of Corrections (“ADC”) officials - appealed the certification of
a class and subclass of Arizona prison inmates who alleged that
they were subjected to systemic Eighth Amendment violations. 754
F.3d 657, 662 (9th Cir. 2014). The defendants argued that the
plaintiffs did not satisfy the commonality requirement because “a
systemic constitutional violation [of the sort alleged here] is a
collection of individual constitutional violations, each of which
26

hinges on the particular facts and circumstances of each case.” Id. at 675 (alteration in Parsons) (footnote, citation, and internal quotation marks omitted). The Ninth Circuit rejected this argument, noting that “[t]he Complaint does not allege that the care provided on any particular occasion to any particular inmate (or group of inmates) was insufficient, but rather that ADC policies and practices of statewide and systemic application expose all inmates in ADC custody to a substantial risk of serious harm.” Id. at 676 (citation omitted).
Similarly, in the instant case, the claims of the proposed Prospective Relief Class - as opposed to the proposed Damages Class - do not allege that a particular inmate’s RLUIPA or constitutional rights were violated on a particular occasion. The Prospective Relief Class would litigate claims that Defendants’ policies and practices at Saguaro expose all class members to ongoing and/or potential violations of their rights under RLUIPA and the state and federal constitutions.
It is undisputed that, pursuant to Defendants’ policies and procedures, inmates in Saguaro’s general population who practice the Native Hawaiian religion cannot have daily, outdoor, group worship. It is also undisputed that Saguaro has a Retention List identifying the religious items that inmates can possess. Further, although Saguaro theoretically allows inmates in the general population who practice the Native Hawaiian
27

religion to have a personal amulet in their cells, Saguaro also requires that the amulet be provided by an approved vendor. Saguaro has been unable to identify a vendor for such items. There are questions of law and fact common to the proposed Prospective Relief Class, such as whether the policies are the least restrictive means available and whether Saguaro enforces comparable policies on inmate practitioners of other religions. There may be some factual differences among the potential class members, such as whether Saguaro can impose additional limitations on inmates who are in the general population but who have a history of violent infractions. These differences, however, do not defeat commonality because commonality does not require “complete congruence.” See Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010) (citation and quotation marks omitted).
This Court therefore FINDS that the claims of the proposed Prospective Relief Class have enough common questions of law and fact to meet the commonality requirement.
2. Subclasses a. Administrative Segregation and SHIP Prospective Relief Subclasses
Insofar as Plaintiffs have failed to establish the numerosity requirement for the proposed Administrative Segregation Prospective Relief Subclass or the proposed SHIP Prospective Relief Subclass, this Court does not need to address
28

the issue of whether those individual subclasses satisfy the other Rule 23(a) requirements. As to the possible subclass of both administrative segregation practitioners and SHIP practitioners, the two programs share the common element that the inmates in each group are not allowed to have communal gatherings with inmates of any other group. SHIP I inmates have the same restrictions as inmates in administrative segregation. However, SHIP II inmates are allowed to “recreate as a group on the SHIP II . . . group recreation yard” in the “dayroom pod,” although. SHIP III inmates also have group recreation time, although at different times from the SHIP II inmates. SHIP II inmates and SHIP III inmates are also allowed to participate in educational classes in their housing unit. Thus, a combined subclass of administrative segregation inmates and SHIP inmates would not have common questions of law or fact regarding the claims involving group gatherings.
In addition, although administrative segregation inmates and SHIP inmates who are registered as practitioners of the Native Hawaiian religion may possess the same religious items in their cells, SHIP II and SHIP III inmates have less security risks, and therefore more privileges, regarding the retention of personal items in their cells. Further, because of the SHIP II and SHIP III inmates’ ability to engage in group activity, including attending education classes, they may argue in favor of
29

access to communal sacred items. Because of those distinctions, a combined subclass of administrative segregation inmates and SHIP inmates would not have common questions of law or fact as to claims regarding access to additional sacred items.14
According to the Administrative Segregation Description and the SHIP Description, Defendants represent that the policies and procedures for an individual inmate’s access to the chaplain or other religious advisors are the same for both groups. As to both groups, however, Plaintiffs dispute what Saguaro actually allows. Thus, it appears that the same policies and practices regarding individual access to a chaplain or other spiritual advisor apply to the administrative segregation inmates and the SHIP inmates. Although there may be some factual issues regarding individual access to a spiritual advisor that differ from one inmate to another, a combined subclass of administrative segregation inmates and SHIP inmates would have common questions of law and fact.
This Court therefore FINDS that a combined subclass of administrative segregation inmates and SHIP inmates would meet the commonality requirement, but only as to the claims regarding
14 This Court also notes that, because of the sharp distinction in the restrictions on SHIP I inmates in comparison to SHIP II inmates and SHIP III inmates, this Court would also find that the proposed SHIP Prospective Relief Subclass, by itself, would not meet the commonality requirement as to the claims involving group gatherings or as to the claims regarding access to sacred items.
30

individual access to a spiritual advisor.
b. Protective Custody Prospective Relief Subclass
Based on the Protective Custody Description, the
members of the proposed Protective Custody Prospective Relief
Subclass are all subject to the same policies and procedures
affecting their practice of the Native Hawaiian religion.
Although there may be some factual issues that differ from one
inmate to another, the proposed Protective Custody Prospective
Relief Subclass has common questions of law and fact. The common
questions are similar to the common questions for the Prospective
Relief Class, but a subclass is required because the prospective
custody inmates are kept separated at all times from the general
population inmates. This Court therefore FINDS that the proposed
Protective Custody Prospective Relief Subclass meets the
commonality requirement.
C. Typicality
This Court has stated that:
The typicality requirement is satisfied “when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (citation and quotation marks omitted). Under this standard, the class representatives’ claims need only be “reasonably coextensive with those of absent class members;” they need not be “identical or substantially identical to those of the absent class members.” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (citations and quotation marks omitted).
31

Davis, 277 F.R.D. at 436-37. Further, the United States Supreme
Court has noted that:
[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157–158, n.13, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982). . . .
Wal-Mart, 131 S. Ct. at 2551 n.5 (some alterations in Wal-Mart).
1. Prospective Relief Class
In the commonality analysis, this Court noted that the
members of the proposed Prospective Relief Class are subject to,
inter alia, the same prohibition on daily, outdoor, group worship
and the same requirement that personal amulets must be purchased
from an approved vendor, and Saguaro has been unable to identify
one. The members of the proposed class make the same legal
arguments about Defendants’ liability based on these, and other
related, policies and procedures. There are undoubtedly some
differences, based on things like prior history of violence or
other rule infractions, affecting the individual class members’
abilities to participate in the requested worship sessions or to
have the requested access to sacred items. Further, some of the
32

class members may believe certain religious items to be more significant than others. Those factual differences, however, are minor in comparison to the similarities in the class members’ legal arguments. The crux of the legal arguments relevant to each member of the proposed Prospective Relief Class is that Defendants’ policies and procedures regarding group worship and access to sacred items for practitioners of the Native Hawaiian religion violate their rights under RLUIPA and the federal and state constitutions.
This Court therefore FINDS that Plaintiffs’ claims are “reasonably coextensive with those of absent class members,” see Staton, 327 F.3d at 957, and that the proposed Prospective Relief Class satisfies the typicality requirement.
2. Subclasses a. Administrative Segregation and SHIP Prospective Relief Subclasses
As previously noted, there are fewer security risks associated with, and therefore more privileges accorded to, SHIP II inmates and SHIP III inmates, as compared to SHIP I inmates and inmates in administrative segregation. Thus, the policies and procedures regarding group activity and access to additional sacred items that are applicable to SHIP II inmates and SHIP III inmates have significant differences from the policies and procedures on those subjects that are applicable to SHIP I inmates and inmates in administrative segregation. See supra
33

Discussion Section II.B.2.a. Because of those distinctions, each member of a combined subclass of administrative segregation inmates and SHIP inmates would not make similar legal arguments as to Defendants’ liability regarding claims involving either group activity or access to additional sacred items.15
As to individual inmate access to spiritual advisors, for the same reasons as set forth in the commonality analysis, see id., this Court finds that the members of a combined subclass of administrative segregation inmates and SHIP inmates would make similar legal arguments as to Defendants’ liability.
This Court therefore FINDS that a combined subclass of administrative segregation inmates and SHIP inmates would meet the typicality requirement, but only as to the claims regarding individual access to a spiritual advisor.
b. Protective Custody Prospective Relief Subclass
Similarly, for the same reasons as set forth in the commonality analysis, see supra Discussion Section II.B.2.b., this Court finds that the members of the proposed Protective Custody Prospective Relief Subclass would make similar legal
15 This Court also notes that the legal arguments that SHIP I inmates would raise would not be similar to the legal arguments that SHIP II inmates and SHIP III inmates would raise. Thus, this Court would find that the proposed SHIP Prospective Relief Subclass, by itself, would not meet the typicality requirement as to the claims involving group activity or the claims regarding access to sacred items.
34

arguments as to Defendants’ liability. This Court therefore
FINDS that the proposed Protective Custody Prospective Relief
Subclass meets the typicality requirement.
D. Adequacy
This Court has stated that:
In determining whether the named plaintiffs will fairly and adequately protect the interests of the class, courts in the Ninth Circuit ask two questions: “(1) Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Staton, 327 F.3d at 957 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). This requirement is satisfied as long as one of the class representatives is an adequate class representative. Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 n.2 (9th Cir. 2001).
Davis, 277 F.R.D. at 437. “Adequate representation depends on,
among other factors, an absence of antagonism between
representatives and absentees, and a sharing of interest between
representatives and absentees.” Ellis v. Costco Wholesale Corp.,
657 F.3d 970, 985 (9th Cir. 2011) (citations omitted).
This Court will first address the adequacy of the
representation that Plaintiffs’ counsel would provide, because
that analysis is the same for all proposed classes and
subclasses.
35

Plaintiffs’ counsel, Sharla Manley, Esq., is a staff attorney with the Native Hawaiian Legal Corporation (“NHLC”).16 She states that NHLC is the only law firm in the country that specializes in cases involving Native Hawaiian rights. [Manley 2014 Decl. at ¶¶ 2, 6.] Ms. Manley also states that co-counsel for Plaintiffs, the law firm of Kawahito, Shraga and Westrick, “has developed an established class action practice.” [Id. at ¶ 7.] Specifically, James Kawahito, Esq.,17 and Shawn Westrick, Esq., “have litigated numerous class action lawsuits, in various stages on both the plaintiff and defense side.” [Id.] Over the past five years, Plaintiffs’ counsel have conducted extensive interviews at Saguaro and Red Rock, in addition to interviewing Plaintiffs, consulted with experts, and researched a myriad of factual and legal issues. Further, Plaintiffs’ counsel has engaged in extensive discovery and dispositve motions practice for this case. Thus, Plaintiffs’ counsel have, and will continue to, devote significant resources to this case. [Id. at ¶¶ 3-5, 9.]
16 Plaintiffs’ counsel, David Keith Kopper, Esq., and Moses Haia, III, Esq., are also with NHLC.
17 This Court notes that, although Mr. Kawahito is a member of the bar in Hawai`i, and Plaintiffs have listed his name on some of their filings, he has never filed a notice of appearance in this case. He therefore is not listed on the district court’s docket as counsel of record.
36

Defendants do not challenge the competence of Plaintiffs’ counsel, or their zeal for the case. Defendants, however, argue that the “motives and strategies” of Plaintiffs’ counsel “present the specter of divergent interests with absent class members,” and that counsel have placed their interests and the interests of Plaintiffs ahead of the interests of the other members of the proposed classes and subclasses. [Mem. in Opp. at 22-23.] Defendants argue that Plaintiffs’ counsel unduly delayed bringing the instant Motion and in asserting that Plaintiffs were pursuing claims for damages, instead of only declaratory and injunctive relief. This Court, however, has already found that Plaintiffs did not unduly delay seeking class certification. See supra Discussion Section I. Further, the Second Amended Complaint clearly prays for an award of compensatory damages for “Plaintiffs and all other class members.” [Second Amended Complaint at pg. 129, ¶ 15.]
Defendants also argue that the fact that Plaintiffs’ counsel presented some claims and arguments that were unsuccessful proves that counsel’s interests have diverged from the class members’ interests. Defendants point to: the inclusion of the Governor as a defendant; the inclusion of a claim based on Native Hawaiian gathering rights; and the argument in favor of per-diem damages rates. Although this Court ultimately found
37

that these claims and arguments were without merit,18 this Court
does not find that the mere fact that Plaintiffs’ counsel raised
these claims and arguments indicates that there are conflicts of
interest between counsel and the class members.
Finally, Defendants argue that Plaintiffs’ counsel will
not adequately represent the proposed classes and subclasses
because Plaintiffs’ counsel have pursued political agendas in
this case. This Court emphasizes that political or legislative
questions are beyond the scope of this case. Further, this Court
cannot find that Plaintiffs’ counsel have engaged in anything
improper regarding political or legislative issues that may be
related to this case.
There is no evidence that Plaintiffs’ counsel have a
conflict of interest with the members of any of the proposed
classes or subclasses. This Court therefore FINDS that
Plaintiffs’ counsel would provide adequate representation to any
class or subclass certified in this case. This Court now turns
to the question of whether Plaintiffs are adequate
18 In this Court’s Order Granting Defendant Neil Abercrombie’s Motion for Judgment on the Pleadings, this Court dismissed all of the claims against Governor Abercrombie in the Second Amended Complaint and the Supplemental Complaint with prejudice. This Court also dismissed with prejudice Plaintiffs’ claim based on gathering rights. Davis v. Abercrombie, Civil No. 11–00144 LEK–BMK, 2013 WL 5204982, at *23 (D. Hawai`i Sept. 13, 2013) (“9/13/13 Order”). In the 7/31/14 Summary Judgment Order, this Court ruled that the potentially available damages for Plaintiffs’ remaining § 1983 claims and RLUIPA claims are limited to compensatory and nominal damages. 2014 WL 3809499, at *18.
38

representatives for the proposed Prospective Relief Class and Subclasses.
1. Prospective Relief Class The proposed representatives of the Prospective Relief Class are Plaintiffs Davis, Galdones, Hughes, Kane, and Keawe. [Motion at 2.] In the 6/13/14 Summary Judgment Order, however, this Court noted that it previously dismissed Plaintiff Keawe’s federal claims based on daily religious congregation for failure to exhaust his administrative remedies. 2014 WL 2716856, at *10 n.15 (citing Davis v. Abercrombie, Civil No. 11–00144 LEK–BMK, 2013 WL 1568425, at *13 (D. Hawai`i Apr. 11, 2013)).19 Because Plaintiff Keawe cannot pursue the RLUIPA and § 1983 claims regarding daily group worship, this Court finds that his interests are distinct from the interests of Plaintiffs Davis, Galdones, Hughes, and Kane, and from the interests of the other members of the proposed Prospective Relief Class. This Court therefore finds that Plaintiff Keawe would not be an adequate representative of the Prospective Relief Class. Defendants first argue that Plaintiffs Davis, Galdones, Hughes, and Kane would not be adequate representatives of the Prospective Relief Class because they “have divergent interests from one another and the class, as evidenced by the 40-page
19 This Court will refer to the April 11, 2013 order as the “4/11/13 Exhaustion Order.”
39

‘Tentative Settlement Agreement’ 16 inmates (including 4
Plaintiffs) proposed.” [Mem. in Opp. at 20 (footnote omitted).]
Sixteen Saguaro inmates, who declared themselves to be
practitioners of the Native Hawaiian religion, signed a notice
stating that the Tentative Settlement Agreement
presents a comprehensive compilation of the Native Hawaiian Religious programs [they] seek to have established at all CCA and PSD facilities to protect [their] State and Federal Constitutional Rights to freely express [their] religious beliefs and present [them] with the opportunity to practice the Native Hawaiian religion within correctional facilities while balancing the legitimate penalogical interests of Administrations with these rights.
[Mem. in Opp., Decl. of Rachel Love (“Love Decl.”), Exh. 1 at
PLAINTIFFS_0000320.20] The Tentative Settlement Agreement was
transmitted with a memorandum dated March 19, 2009 to “Interested
Native Hawaiian Religious Authority, Kapuna and Na Kahu” from
“Native Hawaiian Religious, Spiritual and Cultural Group, Saguaro
Correctional Center.” [Id. at PLAINTIFFS_0000318.] It is signed
by Myles S. Breiner, and it asks the recipients to “evaluate and
critique the attached proposal.” [Id.]
Defendants have not identified any specific part of the
Tentative Settlement Agreement that indicates that Plaintiffs
Galdones and Hughes’s interests diverge from the interests of
20 Plaintiffs Galdones and Hughes, proposed representatives of the Prospective Relief Class, signed the notice, as did Plaintiffs Kaahu and Poaha. [Love Decl., Exh. 1 at PLAINTIFFS_0000320.]
40

Plaintiffs Davis and Kane or the members of the proposed Prospective Relief Class. Nor have Defendants presented any evidence that the Tentative Settlement Agreement was ever memorialized into an agreement that is legally binding upon Plaintiffs Galdones and Hughes. In addition, this Court emphasizes that the Tentative Settlement Agreement was not prepared in connection with the instant case, and it was apparently drafted approximately two years before Plaintiffs filed this action. This Court therefore cannot find that anything that in the Tentative Settlement indicates that Plaintiffs Galdones and Hughes’s interests in the instant case diverge from the interests of Plaintiffs Davis and Kane or the proposed Prospective Relief Class.
In a related argument, Defendants assert that Plaintiffs Davis and Galdones are not adequate representatives of the Prospective Relief Class because: they previously filed other legal actions challenging Saguaro’s programming for the practitioners of the Native Hawaiian religion;21 and Plaintiff Galdones is pursuing a retaliation claim in this action.
21 Defendants raise this argument regarding Plaintiffs Davis and Holbron. [Mem. in Opp. at 20 n.14 (some citations omitted) (citing Davis v. Hawaii, CV09-1081-PHX-PGR (LOA) (D. Ariz. Sept. 24, 2009); Bush v. Hawaii, No. 04-00096 DAE-KSC, 2011 WL 563564 (D. Haw. Jan. 20, 2011)).] The adequacy argument regarding Plaintiff Holbron relates to the combined subclass. Plaintiff Galdones was also one of the plaintiffs in Bush, and this Court assumes that Defendants also wish to apply this argument to him.
41

Defendants claim that the prior actions show that Plaintiffs
Davis and Galdones each “have his own agenda,” and Plaintiff
Galdones’s retaliation claim shows that “he might be motivated to
abandon class members to pursue his own interests.” [Mem. in
Opp. at 20 n.14.] Again, Defendants do not identify any specific
aspect of those prior cases or Plaintiff Galdones’s retaliation
claim that conflicts with the interests of the other proposed
representatives or the members of the proposed Prospective Relief
Class.
The Ninth Circuit has stated that:
a district court retains the flexibility to address problems with a certified class as they arise, including the ability to decertify. “Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); see also Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009) (“A district court may decertify a class at any time.”); Cummings [v. Connell], 316 F.3d [886,] 896 [(9th Cir. 2003)] (finding “the district court’s approach [to be] entirely appropriate” where the court determined that a potential class “conflict was too speculative at the time [of the certification motion] to prevent finding the named plaintiffs to be adequate representatives,” but “remained willing to reconsider and decertify the class if . . . there was evidence of an actual conflict”); Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001) (“Federal Rule of Civil Procedure 23 provides district courts with broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court.”). What a district court may not do is to assume, arguendo, that problems will arise, and decline to certify the
42

class on the basis of a mere potentiality that may or may not be realized. . . . United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 809-10 (9th Cir. 2010) (some alterations in United Steel). This Court finds that Defendants’ arguments about the conflict among Plaintiffs Davis, Galdones, Hughes, and Kane and between one or more of them and the members of the proposed Prospective Relief Class are too speculative to warrant denial of certification based on a failure to identify an adequate class representative. If, after certification of any class or subclass in this case, an actual conflict arises between the appointed representatives or between one or more of the appointed representatives and the class or subclass, Defendants may bring a motion for decertification. Defendants also argue that Plaintiffs Davis, Galdones, Hughes, and Kane are not adequate representatives of the proposed Prospective Relief Class because Plaintiffs appear to have relinquished complete control of this litigation to Plaintiffs’ counsel[,] . . . lack[] even a basic understanding of their duties as representative parties, [and] hav[e] little to no understanding of significant rulings made by the Court during the litigation or the claims that remain in this case after summary judgment rulings. [Mem. in Opp. at 21.] This district court, however, has
43

recognized that:
It is true that “class representative status may properly be denied where the class representatives have so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 61 (2d Cir. 2000) (internal quotation omitted). However, “[i]t is hornbook law . . . [that] in a complex lawsuit, [when] the defendant’s liability can be established only after a great deal of investigation and discovery by counsel against a background of legal knowledge, the representative need not have extensive knowledge of the facts of the case in order to be an adequate representative.” Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430 (4th Cir. 2003). While the named Plaintiffs do not appear to know either the technical aspects of plumbing construction or the legal elements of some of their claims, the record does not suggest that they “have abdicated any role in the case beyond that of furnishing their names as plaintiffs.” Pryor v. Aerotek, 278 F.R.D. 516, 529–530 (C.D. Cal. 2011). . . .
Baker v. Castle & Cooke Homes Hawaii, Inc., Civil No. 11–00616
SOM–RLP, 2014 WL 1669158, at *10-11 (D. Hawai`i Apr. 28, 2014)
(some alterations in Baker). The district court emphasized that
the proposed representatives were “sincere in their desire to
explore any misconduct by [Defendant Castle & Cooke Homes Hawaii,
Inc.].” Id. at *11 (citations omitted).
In arguing that Plaintiffs’ counsel will not provide
adequate representation because they are focused on obtaining
monetary relief, Defendants state that “Plaintiffs’ primary goal
is to achieve greater religious practices” at Saguaro. [Mem. in
44

Opp. at 24.] Thus, even Defendants concede that Plaintiffs Davis, Galdones, Hughes, and Kane have a sincere desire to obtain the relief sought by the proposed Prospective Relief Class. This Court therefore finds that their lack of understanding of the legal and procedural aspects of this case is not a barrier to their service as class representatives.
This Court FINDS that Plaintiffs Davis, Galdones, Hughes, and Kane are adequate representatives of the proposed Prospective Relief Class.
2. Subclasses a. Administrative Segregation and SHIP Prospective Relief Subclasses
Plaintiff Holbron is the proposed representative of both the Administrative Segregation Prospective Relief Subclass and the SHIP Prospective Relief Subclass. [Motion at 3.] According to the Administrative Segregation Description and the SHIP Description, no Plaintiff is currently assigned either to administrative segregation or SHIP. Plaintiff Holbron was in administrative segregation from the date he was admitted to Saguaro, on or around July 17, 2007, until he moved to SHIP. He was in SHIP from approximately April 10, 2009 to February 2012. [Holbron Summary Judgment Decl. at ¶¶ 8-9.] Thus, Plaintiff Holbron has not been in administrative segregation in over five years, and he has not been in SHIP for over two years. This Court therefore cannot find that he has shared interests with
45

inmates in either administrative segregation or inmates in SHIP.
Moreover, in the 6/13/14 Order, this Court stated:
Plaintiff Holbron is apparently no longer in any form of restricted housing at Saguaro. Viewing the current record in the light most favorable to Plaintiff Holbron, this Court finds that there are genuine issues of material fact as to the existence of a reasonable expectation that he may be placed in a form of restricted custody at Saguaro in the future. If this Court ultimately finds that there is no reasonable expectation of such placement, Plaintiff Holbron’s claims seeking prospective declaratory and injunctive relief regarding restricted custody at Saguaro will be moot.
2014 WL 2716856, at *5. Plaintiff Holbron may not be able to
pursue any claims for prospective relief regarding the practice
of the Native Hawaiian religion in administrative segregation or
SHIP.
This Court therefore FINDS that Plaintiff Holbron would
not be an adequate representative of: the proposed Administrative
Segregating Prospective Relief Subclass; the proposed SHIP
Prospective Relief Subclass; or a combined Prospective Relief
Subclass of administrative segregation inmates and SHIP
inmates.22
22 This Court will not allow Plaintiffs additional time to identify other potential representatives from administrative segregation and SHIP. Plaintiff Holbron has not been in either administrative segregation or SHIP since February 2012, and Plaintiffs have known that he may not be able to prosecute any claims for prospective declaratory and injunctive relief since this Court filed the 3/31/14 Summary Judgment Order, 2014 WL 1321006. Thus, Plaintiffs have had ample time to identify an
(continued...)
46

b. Protective Custody Prospective Relief Subclass
Plaintiffs Kane and Keawe are the proposed representatives of the Protective Custody Prospective Relief Subclass. [Motion at 3.] The parties’ Protective Custody Description confirms that both are currently assigned to Saguaro’s protective custody pod. For the reasons set forth supra Discussion Section II.D.1., this Court: finds that Plaintiff Keawe would not be an adequate representative of the Protective Custody Prospective Relief Subclass; and rejects Defendants’ arguments challenging Plaintiff Kane’s ability to serve as the representative of the subclass. This Court therefore FINDS that Plaintiff Kane would be an adequate representative of the proposed Protective Custody Prospective Relief Subclass.
E. Summary of the Court’s Rule 23(a) Findings This Court FINDS that the proposed Prospective Relief
Class, with Plaintiffs Davis, Galdones, Hughes, and Kane as the class representatives and Sharla Manley, David Keith Kopper, Moses Haia, Shawn Westrick, and James Kawahito23 as class counsel, meets the requirements of Fed. R. Civ. P. 23(a).
22(...continued) alternative representative for each of those proposed subclasses.
23 Mr. Kawahito’s appointment as class counsel would be conditioned upon his filing of a formal notice of appearance in this case.
47

Further, this Court FINDS that the proposed Protective Custody Prospective Relief Subclass, with Plaintiff Kane as the representative of the subclass and Ms. Manley, Mr. Kopper, Mr. Haia, Mr. Westrick, and Mr. Kawahito as counsel for the subclass, meets the requirements of Rule 23(a).
This Court also FINDS that the proposed Administrative Segregation Prospective Relief Subclass and the SHIP Prospective Relief Subclass do not meet the requirements of Rule 23(a). This Court therefore DENIES Plaintiffs’ Motion insofar as this Court declines to certify either the proposed Administrative Segregation Prospective Relief Subclass or the SHIP Prospective Relief Subclass. Further, this Court FINDS that a combined Prospective Relief Subclass of administrative segregation inmates and SHIP inmates would not satisfy the requirements of Rule 23(a).
This Court therefore turns to the Rule 23(b) analysis for the proposed Prospective Relief Class and the proposed Protective Custody Prospective Relief Subclass.
F. Rule 23(b) Analysis Plaintiffs’ proposed class and subclass may satisfy
Rule 23(b) by meeting the criteria in either Rule 23(b)(1), (b)(2), or (b)(3). Plaintiffs argue that both the proposed Prospective Relief Class and the proposed Protective Custody Prospective Relief Subclass satisfy Rule 23(b)(2). [Motion at 2-
48

3.] This district court has stated:
“Class certification under Rule 23(b)(2) requires that the primary relief sought is declaratory or injunctive.” Rodriguez v. Hayes, 578 F.3d 1032, 1051 (9th Cir. 2009) (internal quotations omitted) superseded on other grounds by Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010). “The rule does not require [a court] to examine the viability or bases of class members’ claims for declaratory and injunctive relief, but only to look at whether class members seek uniform relief from a practice applicable to all of them.” Rodriguez, 591 F.3d at 1125. “[I]t is sufficient to meet the requirements of Rule 23(b)(2) that ‘class members complain of a pattern or practice that is generally applicable to the class as a whole.’” Id. (quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). . . .
R.P.-K. ex rel. C.K. v. Dep’t of Educ., Hawaii, 272 F.R.D. 541,
551 (D. Hawai`i 2011) (alterations in R.P.-K.).
1. Prospective Relief Class
The parties opposing class certification - CCA and
Defendant Sakai on behalf of DPS - have acted on grounds that
uniformly apply to all inmates in the general population at
Saguaro who have registered as practitioners of the Native
Hawaiian religion. Plaintiffs seek prospective declaratory and
injunctive relief addressing Defendants’ policies and procedures.
Thus, the relief that Plaintiffs seek would be appropriate for
the proposed class as a whole. This Court therefore FINDS that
the proposed Prospective Relief Class meets the criteria set
forth in Rule 23(b)(2).
49

Insofar as this Court has found that the proposed Prospective Relief Class satisfies both Rule 23(a) and Rule 23(b), this Court GRANTS Plaintiffs’ Motion as to the proposed Prospective Relief Class.
2. Protective Custody Prospective Relief Subclass Similarly, CCA and DPS have acted on grounds that uniformly apply to all inmates in protective custody at Saguaro who have registered as practitioners of the Native Hawaiian religion. Plaintiffs seek prospective declaratory and injunctive relief addressing Defendants’ policies and procedures. Thus, the relief that Plaintiffs seek would be appropriate for the proposed subclass as a whole. This Court therefore FINDS that the proposed Protective Prospective Relief Subclass meets the criteria set forth in Rule 23(b)(2). Insofar as this Court has found that the proposed Protective Custody Prospective Relief Subclass satisfies both Rule 23(a) and Rule 23(b), this Court GRANTS Plaintiffs’ Motion as to the proposed Protective Custody Prospective Relief Subclass. This Court now turns to Plaintiffs’ request to certify a class and subclasses addressing damages. III. Class Certification as to Claims for Damages At the outset, this Court emphasizes that, in the 7/31/14 Summary Judgment Order, it ruled that: Plaintiffs’
50

remaining § 1983 claims and RLUIPA claims for damages are limited
to compensatory damages and nominal damages; and Plaintiffs
cannot seek damages for their remaining claims based on the state
constitution. 2014 WL 3809499, at *18. The 7/31/14 Summary
Judgment Order also stated:
Although this Court by no means minimizes the importance of the federal rights that Plaintiffs allege were violated, it is well established that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages in [§ 1983] cases.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986). This Court finds that the spiritual injuries that Plaintiffs allege in this case are comparable to humiliation, embarrassment, or disappointment and are therefore mental or emotional injuries subject to [42 U.S.C.] § 1997e(e). Plaintiffs cannot pursue claims for damages based on their spiritual injuries without a prior showing of physical injury.
Id. at *10 (some alterations in 7/31/14 Summary Judgment Order).
This Court also ruled that Plaintiffs could not seek damages for
their alleged spiritual injuries because they have not made the
required showing of physical injury. Id. Thus, this Court could
not certify class or subclass seeking damages for spiritual
injury, or any other form of mental or emotional injury, because
no Plaintiff would be an adequate representative. This Court
will only address whether it is appropriate to certify the
proposed Damages Class and/or the proposed Damages Subclasses to
seek compensatory and nominal damages.
51

A. Compensatory Damages
Even assuming, arguendo, that Plaintiffs could satisfy the numerosity and adequacy requirements for the proposed Damages Class and/or the proposed Damages Subclasses, Plaintiffs could not satisfy the commonality and typicality requirements. The determination of entitlement to, and the amount of, compensatory damages would require examination of an individual inmate’s alleged deprivation of rights on specific occasions. For example, examining whether an inmate was entitled to compensatory damages for the denial of access to a personal amulet would require the consideration of: the character of the individual amulet at issue; and whether there were case-specific reasons for its confiscation, such as history of violent use of the amulet or hiding contraband in the amulet. See, e.g., Mem. in Opp. at 9 (noting that Plaintiff Davis’s personal amulet was a kukui nut, and potential class members’ personal amulets included hooks, niho mano, shells, kukui nut lei, and a necklace made of the inmate’s hair (citing Doc. 466-1, ¶¶ 30-42; Doc. 320-9, ¶ 15; Doc. 320-2, ¶ 17; Doc. 320-4, ¶ 8; Doc. 320-39, ¶ 15)).24 Such inquiries are not capable of class-wide resolution, and the
24 Docket number 466-1 is the Declaration of Richard Davis attached to the Amended Separate Concise Statement of Facts in Opposition to Defendants’ Motion for Summary Judgment, filed January 6, 2014 (“Plaintiffs’ Responsive CSOF”). Docket numbers 320-9, 320-2, 320-4, and 320-39 are declarations in support of the 2103 Certification Motion by, respectively: John DeCambra; Kekona Anthony; William Jackson Barnes; and Richard Taylor.
52

inmate’s arguments, as a general rule, will not be reasonably
coextensive with each other.
This Court therefore FINDS that Plaintiffs could not
satisfy the commonality and typicality requirements as to any
class or subclass seeking compensatory damages. In light of this
finding, this Court need not conduct a detailed analysis of
whether the proposed Damages Class and each of the proposed
Damages Subclasses satisfies each of the Rule 23(a) requirements
as to the claims for compensatory damages. This Court emphasizes
that, although class certification is unwarranted as to
compensatory damages, the named Plaintiffs may pursue their
claims for compensatory damages on an individual basis, unless
precluded by a prior order of this Court.
B. Nominal Damages
This Court begins its analysis of whether Plaintiffs
are entitled to certification of a damages class (and/or
subclasses) by reviewing the nature and purpose of nominal
damages. The Ninth Circuit has stated that:
As distinguished from punitive and compensatory damages, nominal damages are awarded to vindicate rights, the infringement of which has not caused actual, provable injury.
Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law
53

recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of right.
Carey[ v. Piphus], 435 U.S. [247,] 266, 98 S. Ct. 1042[, 55 L. Ed. 2d 252 (1978)]. Nominal damages, as the term implies, are in name only and customarily are defined as a mere token or “trifling.” See, e.g., id. at 267, 98 S. Ct. 1042; Magnett v. Pelletier, 488 F.2d 33, 35 (1st Cir. 1973) (per curiam). Although the amount of damages awarded is not limited to one dollar, the nature of the award compels that the amount be minimal. See Romano v. U–Haul Intern., 233 F.3d 655, 671 (1st Cir. 2000). Nominal damages serve one other function, to clarify the identity of the prevailing party for the purposes of awarding attorney’s fees and costs in appropriate cases. Cf. Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992) (stating that “a plaintiff who wins nominal damages is a prevailing party under [42 U.S.C.] § 1988”).
Cummings, 402 F.3d at 942-43. In Cummings, the Ninth Circuit
held that “when nominal damages are awarded in a civil rights
class action, every member of the class whose constitutional
rights were violated is entitled to nominal damages.” Id. at
940. In other words, “[w]here a plaintiff proves a violation of
constitutional rights, nominal damages must be awarded as a
matter of law.” Id. at 944 (citation omitted).
Plaintiffs’ proposed Damages Class would include all
inmate practitioners of the Native Hawaiian religion at either
Saguaro or Red Rock at any time during the period from four years
54

prior to the filing of this action through the resolution of this case. As stated supra Discussion Section III.A., the determination of whether an inmate’s rights were violated in a particular instance - such as the confiscation of a sacred item or the exclusion from a specific religious activity - requires the determination of issues that are not suitable for class determination. Thus, to the extent that the proposed Damages Class and the proposed Damages Subclasses would seek nominal damages based on specific incidents that allegedly violated the proposed members’ rights under RLUIPA or the United States Constitution, Plaintiffs would not be able to satisfy the commonality and typicality requirements.
Plaintiffs, however, can also argue that all inmate practitioners of the Native Hawaiian religion at Saguaro or Red Rock within the relevant time period were subjected to the same CCA policies and procedures that allegedly violated their rights under RLUIPA and/or the United States Constitution. In this respect, the analysis of Plaintiffs’ proposed Damages Class and proposed Damages Subclasses is the same as the analysis of Plaintiffs’ proposed Prospective Relief Class. The claims pursued by the proposed Prospective Relief Class, however, were limited to prospective declaratory and injunctive relief because Plaintiffs bring those claims against CCA and Defendant Sakai. Plaintiffs cannot pursue claims for damages or other
55

retrospective relief against Defendant Sakai because he is not a
person for purposes of § 1983 claims seeking damages or other
retrospective relief. However, the proposed Damages Class and
the proposed Damages Subclasses would pursue claims against only
CCA, and the prospective relief limitation would not apply.
Plaintiffs, and any damages class or subclass certified, may also
seek retrospective relief and nominal damages against CCA based
on prior policies and procedures that are no longer in effect.25
Whether the CCA policies and procedures violated RLUIPA or were
unconstitutional are issues that are capable of class-wide
resolution, and the class members’ (or subclass members’)
arguments, as a general rule, would be reasonably coextensive
with each other. It is arguably possible for the proposed
Damages Class and the proposed Damages Subclasses to satisfy the
commonality and typicality requirements. This Court therefore
25 With the exception of Count XXI (which was dismissed with prejudice), this Court has not issued any rulings as to the ultimate merit of any of Plaintiffs’ claims for damages. To the extent that this Court granted Defendants’ Motion for Summary Judgment, [filed 7/31/13 (dkt. no. 361),] those rulings were limited to Plaintiffs’ claims for prospective declaratory and injunctive relief. See 6/13/14 Summary Judgment Order, 2014 WL 2716856, at *3 (“To the extent that any of the pending motions seek summary judgment as to any claims seeking damages or any claims seeking retrospective equitable relief, the motions are DENIED WITHOUT PREJUDICE.” (emphasis in original)). Further, the 7/31/14 Summary Judgment Order limited the type of damages available and ruled that damages were only available against CCA in Plaintiffs’ claims alleging violation of RLUIPA or the United States Constitution. That order did not contain any ruling on the merits of those claims.
56

turns to the analysis of whether the proposed Damages Class and each of the proposed Damages Subclasses meets each of the Rule 23(a) requirements.
1. Damages Class a. Numerosity
As previously noted, there are 179 inmates at Saguaro that have registered as practitioners of the Native Hawaiian religion. 2014 WL 2716856, at *23. In addition, the Damages Class would include inmate practitioners who were previously incarcerated at Saguaro or Red Rock but are no longer at either facility. Thus, the Damages Class clearly satisfies the numerosity requirement.
b. Typicality To the extent that the claims of the proposed Damages Class are limited to claims arising from the policies and procedures applicable at each facility, the proposed class members who are or were housed at Saguaro present common questions of law or fact, and the proposed class members who were housed at Red Rock presents common questions of law or fact. This Court, however, cannot say that the Damages Class as a whole present common questions of law or fact. Thus, separate damages classes - one class of inmates who are or were housed at Saguaro (“Saguaro Damages Class”) and one class of inmates who were housed at Red Rock (“Red Rock Damages Class”) - would meet the
57

commonality requirement. A separate Saguaro Damages Class would also satisfy the
numerosity requirement. Based on the existing record, however, this Court cannot find that a separate Red Rock Damages Class would satisfy the numerosity requirement. When Red Rock housed Hawai`i inmates, the average number was approximately fifty. [Defs.’ Reply in Supp. of Motion for Summary Judgment (Doc. 361), Decl. of Warden Stolc, filed 1/13/14 (dkt. no. 483-17), at ¶ 4.] Plaintiffs have not identified evidence establishing how many Red Rock inmates (from Hawai`i or otherwise) registered as practitioners of the Native Hawaiian religion. A Red Rock Damages Class would not satisfy Rule 23(a).
c. Commonality Insofar as this Court has limited the claims at issue for the Saguaro Damages Class to claims asserting that Saguaro’s policies and procedures violated RLUIPA or the United States Constitution, the claims of the representative Plaintiffs would be typical of the class’s claims. Thus, a Saguaro Damages Class would satisfy the commonality requirement.
d. Adequacy Plaintiffs were all proposed representatives of the Damages Class. [Motion at 3.] Each is, or was previously, incarcerated at Saguaro. [Manley 2013 Decl., Exh. 33 (Davis Decl.) at ¶ 3, Exh. 34 (Hughes Decl.) at ¶ 3, Exh. 35 (Kane
58

Decl.) at ¶ 3, Exh. 36 (Keawe Decl.) at ¶ 3;26 2013 Certification Motion, Decl. of Robert Holbron at ¶ 4; Pltfs.’ Responsive CSOF, Decl. of Tyrone Galdones at ¶ 3, Decl. of Damien Kaahu at ¶ 3, Decl. of Kalai Poaha at ¶ 3.]
This Court previously dismissed, for failure to exhaust his administrative remedies, Plaintiff Keawe’s federal claims based on: 1) daily religious congregation; and 2) access to an outdoor altar. 4/11/13 Exhaustion Order, 2013 WL 1568425, at *13. This Court also dismissed Plaintiffs Davis, Galdones, Hughes, Kaahu, and Poaha’s federal claims regarding access to a spiritual advisor on exhaustion grounds. Id. This Court has ruled that Plaintiff Keawe’s inability to pursue RLUIPA and § 1983 claims regarding daily group worship rendered him an inadequate class representative for the Prospective Relief Class. See supra Discussion Section II.D.1. The analysis of who is an adequate representative of the Saguaro Damages Class, however, is distinguishable. The Prospective Relief Class will seek relief that is specific and unique to each group of claims (worship and access to sacred items). Thus, a proposed representative who cannot pursue one group of claims has very distinct interests from the proposed representative, and the members, of the
26 Kane’s Declaration and Keawe’s Declaration, both dated in February 2013, each states that he is incarcerated at Red Rock. As previously noted, by May 30, 2013, all of the Hawai`i inmates at Red Rock were transferred to Saguaro. See supra note 13.
59

proposed class who are pursing both types of claims. In contrast, the Saguaro Damages Class will seek
nominal damages for violation of their rights under RLUIPA and/or the United States Constitution. If Plaintiffs prevail and establish a violation or multiple violations, Plaintiffs and each class member will be entitled to an award of nominal damages. The award, however, will be a general nominal damages award recognizing the violation their rights. They will not receive an award of nominal damages for each established violation. See Cummings, 402 F.3d at 936 (analyzing the plaintiffs’ argument that the district court erred in awarding a general nominal damages award, affirming the district court’s award of $1.00, and rejecting the plaintiffs argument that the district court should have awarded “separate nominal damages of $1.00 for each of the seventeen acts that resulted in a constitutional violation”). Thus, proposed class representatives who are not pursuing all of the claims that the other representatives - and the class members - are pursuing, have different interests. But, due to the nature of the relief sought, those differences are not significant and do not prevent them from being adequate class representatives.
For these reasons, and for the reasons set forth supra Discussion Section II.D.1., Plaintiffs would be adequate representatives of a Saguaro Damages Class. Further, for the reasons set forth supra Section II.D., Plaintiffs’ counsel would
60

be adequate class counsel for a Saguaro Damages Class. This Court therefore FINDS that a Saguaro Damages Class
would satisfy the requirements of Rule 23(a).
2. Administrative Segregation Damages Subclasses
The Motion does not specifically address the Rule 23(a) factors as they apply to the proposed Damages Class and Damages Subclasses. Instead, Plaintiffs rely on their Rule 23(a) analysis of the proposed Prospective Relief Class and Prospective Relief Subclasses. [Mem. in Supp. of Motion at 31-32.] Plaintiffs have not identified any evidence of the number of inmate practitioners of the Native Hawaiian religion who are, or were, in administrative segregation at Saguaro or Red Rock. Thus, neither a Saguaro Administrative Segregation Damages Subclasses nor a Red Rock Administrative Segregation Damages Subclasses would meet the numerosity requirement.
This Court FINDS that neither a Saguaro Administrative Segregation Damages Subclass nor a Red Rock Administrative Segregation Damages Subclass would satisfy the requirements of Rule 23(a).27
27 In the analysis of the Proposed Prospective Relief Subclasses, this Court discussed the possibility of a combined subclass of administrative segregation practitioners and SHIP practitioners. The combination would not be appropriate for the proposed Damages Subclasses. Because SHIP is a Saguaro program, there is no Red Rock SHIP Damages Subclass to combine with the Red Rock Administrative Segregation Damages Subclasses. Further, the SHIP Damages Subclass for Saguaro is sufficiently numerous by
(continued...) 61

3. SHIP Damages Subclass a. Numerosity
This Court has found that there are twenty potential members of the SHIP Prospective Relief Subclass, i.e. there are twenty inmate practitioners of the Native Hawaiian religion currently in SHIP. See supra Discussion Section II.A.2.a. In light of the fact that the intended duration of that program is eighteen months, this Court can reasonably infer that there were more than forty inmate practitioners of the Native Hawaiian religion in SHIP over the course of the relevant time period (four years prior the filing of this case until the resolution of the case). Thus, the SHIP Damages Subclass would satisfy the numerosity requirement.
b. Commonality and Typicality For the same reasons set forth supra Discussion Sections II.B.2.a. and C.2.a., the proposed SHIP Damages Subclass would only meet the commonality requirement and the typicality requirement as to the claims regarding individual access to a spiritual advisor.
c. Adequacy Plaintiff Holbron is the proposed representative of the SHIP Damages Subclass. He was in SHIP from approximately
27(...continued) itself.
62

April 10, 2009 to February 2012. [Holbron Summary Judgment Decl. at ¶¶ 8-9.] For this reason, and for the reasons set forth supra Discussion Section II.D.1., Plaintiff Holbron would be an adequate representative of the SHIP Damages Subclass. Further, for the reasons set forth supra Section II.D., Plaintiffs’ counsel would provide adequate representation for the SHIP Damages Subclass.
This Court therefore FINDS that the SHIP Damages Subclass would satisfy the requirements of Rule 23(a), but only as to the claims regarding individual access to a spiritual advisor.
4. Protective Custody Damages Subclasses a. Numerosity
Again, Plaintiffs failed to identify any evidence of the number of inmate practitioners of the Native Hawaiian religion who are, or have been, in protective custody at Saguaro or Red Rock. Based on Defendants’ concession, this Court has found that there are thirty-seven potential members of the Protective Custody Prospective Relief Subclass. See supra Discussion Section II.A.2.c. This Court can reasonably infer that there were more than forty inmate practitioners of the Native Hawaiian religion in protective custody at Saguaro over the course of the relevant time period, which spans over seven years. Thus, the Saguaro Protective Custody Damages Subclass
63

would satisfy the numerosity requirement. The Red Rock Protective Custody Damages Subclass, however, would not satisfy the numerosity requirement.
b. Commonality and Typicality For the same reasons set forth supra Discussion Sections II.B.2.b. and C.2.b., the proposed Saguaro Protective Custody Damages Subclass would meet the commonality and typicality requirements.
c. Adequacy Plaintiffs Kane and Keawe are the proposed representatives of the Saguaro Protective Custody Damages Subclass. The parties’ Protective Custody Description confirms that Plaintiffs Kane and Keawe are currently housed in protective custody at Saguaro. For this reason, and for the reasons set forth supra Discussion Section II.D.1.d., Plaintiffs Kane and Keawe would be an adequate representatives of the Saguaro Protective Custody Damages Subclass. Further, for the reasons set forth supra Section II.D., Plaintiffs’ counsel would provide adequate representation for the Saguaro Protective Custody Damages Subclass. This Court therefore FINDS that the Saguaro Protective Damages Subclass satisfies the requirements of Rule 23(a). This Court next turns to the issue of whether the proposed Saguaro Damages Class, SHIP Damages Subclass, and
64

Saguaro Protective Custody Damages Subclass also meet the
Rule 23(b) requirements.
C. Rule 23(b) Requirements
Plaintiffs seek certification of the proposed Damages
Class and the proposed Damages Subclasses pursuant to Rule
23(b)(3). The two requirements of Rule 23(b)(3) are predominance
and superiority. Defendants raise the same objections as to all
of the proposed Damages Class and Damages Subclasses.
1. Predominance
This district court has stated:
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997). “Though there is substantial overlap between the [commonality and predominance] tests, the [predominance] test is far more demanding” Wolin [v. Jaguar Land Rover N. Am., LLC], 617 F.3d [1168,] 1172 [(9th Cir. 2010)] (internal quotation omitted). A class cannot meet the predominance standard if questions relevant to individual claims “will inevitably overwhelm questions common to the class.” Comcast [v. Behrend], 133 S. Ct. [1426,] 1433 [(2013)].
Baker v. Castle & Cooke Homes Hawaii, Inc., Civil No. 11–00616
SOM–RLP, 2014 WL 1669158, at *11 (D. Hawai`i Apr. 28, 2014) (some
alterations in Baker).
Defendants argue that neither Plaintiffs’ proposed
Damages Class nor the proposed Damages Subclasses can satisfy the
predominance requirement because the individualized issues of,
for example, sincerity of belief and extent of the burden upon
65

the religious exercise, will predominate over the common issues subject to generalized proof. This Court has ruled that the Saguaro Damages Class, the SHIP Damages Subclass, and the Saguaro Protective Custody Damages Subclass would be limited to pursuing the portions of Plaintiffs’ claims alleging that Saguaro’s policies and procedures violated RLUIPA or the United States Constitution. Further, the recovery by the members of the class and subclasses will be limited to nominal damages. In light of those limitations, the issues that would otherwise require individualized evidence - such as sincerity and burden - can be established through generalized or representative proof. While it is true that the class (or subclass) members may differ in degree of sincerity and/or burden, those issues will not dominate the action in light of the limitations that this Court has placed on the damages class and subclasses.
The Saguaro Damages Class, the SHIP Damages Subclass, and the Saguaro Protective Custody Damages Subclass “are sufficiently cohesive to warrant adjudication by representation.” See Amchem, 521 U.S. at 623. This Court therefore FINDS that they meet the predominance requirement.
2. Superiority Rule 23(b)(3) “provides a nonexhaustive list of factors relevant to the superiority inquiry.” Baker, 2014 WL 1669158, at *16. Again, the limitations that this Court has placed on the
66

damages class and subclasses are critical. The limitation to only nominal damages for the class members might suggest that individual members would have an interest in controlling the prosecution of separate actions. Even in separate actions, those individuals would still be limited to only compensatory damages and nominal damages, unless they can prove physical injury. See supra Discussion Section III.A. The relatively small amount of damages that individual plaintiffs could recover in separate actions and the complexities of this type of case would be strong disincentives against pursing individual actions. Similarly, although the limitation of the class and subclasses to issues of policies and procedures that violate RLUIPA or the United States Constitution might suggest that individual inmates would have an interest in presenting their individual violations in separate actions, it would be difficult for individual inmates to litigate cases similar to this one. Thus, it is desirable to concentrate these claims in a class action.
This Court does not find that managing the damages class/subclasses would be unusually difficult in this case because Plaintiffs’ counsel are knowledgeable and experienced in class action litigation. Defendants object that they cannot cross-examine affidavits of class members who cannot be physically present at trial, and that they will not have had the opportunity to depose class members other than the named
67

Plaintiffs. First, as noted in the predominance analysis, individual issues - such as degree of sincerity, burden, and prior history - have a limited role in light of the limitations that this Court has placed on the damages class and subclasses. Further, the parties can make other arrangements, such as having other inmates testify at trial through video-conference. In light of the fact that the trial date in this case has been continued to March 17, 2015, the parties may stipulate to, or seek leave from the magistrate judge, to conduct a reasonable amount of discovery - including depositions - necessary because of class certification.
This Court recognizes that Plaintiffs filed this action more than three years ago, and the litigation made substantial progress prior to the consideration of this Motion. These facts weigh slightly against certification. This Court, however, has already found that Plaintiffs did not engage in undue delay in seeking class certification. The procedural history of this case therefore does not preclude a finding of superiority.
Based upon this Court’s analysis of the relevant factors, a class action is superior to other available methods to fairly and efficiently adjudicate the claims of the Saguaro Damages Class, the SHIP Damages Subclass, and the Saguaro Protective Custody Damages Subclass. See Fed. R. Civ. P. 23(b)(3). This Court therefore FINDS that they meet the
68

superiority requirement. D. Summary This Court GRANTS Plaintiffs’ Motion as to the Saguaro
Damages Class, the SHIP Damages Subclass, and the Saguaro Protective Custody Damages Subclass. The class and subclasses, however, are limited to claims seeking nominal damages on the grounds that CCA’s policies and procedures at Saguaro violate RLUIPA and/or the United States Constitution. In addition, the SHIP Damages Subclass is limited to claims regarding individual access to a spiritual advisor.
This Court DENIES all of Plaintiffs’ other requests to certify a class or subclass as to damages.
CONCLUSION On the basis of the foregoing, Plaintiffs’ Amended Second Motion for Class Certification, filed July 1, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. This Court GRANTS Plaintiffs’ Motion as follows: 1) This Court CERTIFIES a class, seeking prospective declaratory and injunctive relief, as to Plaintiffs’ remaining claims regarding daily, outdoor, group worship and the remaining claims regarding access to sacred items (“the Prospective Relief Class”). The Prospective Relief Class is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai`i and
69

were residents of the state of Hawai`i; b) who are and/or will be confined to Saguaro Correctional Center (“Saguaro”); c) in the general population; and d) who have, according to Saguaro’s established procedures, declared that the Native Hawaiian religion is their faith.
The representatives of the Prospective Relief Class shall be
Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones,
Michael Hughes, and James Kane, III. The class counsel shall be
Sharla Manley, Esq., David Keith Kopper, Esq., Moses Haia, Esq.,
Shawn Westrick, Esq., and James Kawahito, Esq.28
2) This Court CERTIFIES a subclass, seeking prospective
declaratory and injunctive relief, with regard to: 1) the
same claims described supra as to the Prospective Relief
Class; and 2) the remaining state and federal claims
regarding lack of access to communal sacred items in
protective custody (“the Prospective Relief Subclass”). The
Prospective Relief Subclass is defined as:
a) all persons who were convicted of violating crimes under the laws of the State of Hawai`i and were residents of the state of Hawai`i; b) who are and/or will be confined to Saguaro; c) in protective custody; and d) who have, according to Saguaro’s established procedures, declared that the Native Hawaiian religion is their faith.
The representative of the Prospective Relief Subclass shall be
Plaintiff Kane. The class counsel shall be the counsel described
28 Mr. Kawahito’s appointment as class counsel is conditioned upon his filing of a formal notice of appearance in this case by no later than October 6, 2014.
70

supra.
3) This Court CERTIFIES a class, seeking nominal damages and
other retrospective relief, as to Counts I through X, and
XXII through XXVI (“the Damages Class”). The Damages Class
is defined as:
a) all persons who were convicted of violating crimes under the laws of the State of Hawai`i and were residents of the state of Hawai`i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the general population; and d) who have, according to Saguaro’s established procedures, declared that the Native Hawaiian religion is their faith.
The representatives of the Damages Class shall be Plaintiffs
Davis, Galdones, Hughes, Kane, Damien Kaahu, Robert A. Holbron,
Ellington Keawe, and Kalai K. Poaha. The class counsel shall be
the counsel described supra.
4) This Court CERTIFIES a subclass, seeking nominal damages and
other retrospective relief, as to Counts I, II, III, V, VI,
VII, VIII, X, XXII, XXIII, XXIV, and XXVI (“the SHIP Damages
Subclass”). The SHIP Damages Subclass is defined as:
a) all persons who were convicted of violating crimes under the laws of the State of Hawai`i and were residents of the state of Hawai`i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the Special Housing Incentive Program (“SHIP”); and d) who have, according to Saguaro’s established procedures, declared that the Native Hawaiian religion is their faith.
71

The representative of the SHIP Damages Subclass shall be Plaintiff Holbron. The class counsel shall be the counsel described supra. 5) This Court CERTIFIES a subclass, seeking nominal damages and
other retrospective relief, as to Counts I through X, and XXII through XXVI (“the Protective Custody Damages Subclass”). The Protective Custody Damages Subclass is defined as:
a) all persons who were convicted of violating crimes under the laws of the State of Hawai`i and were residents of the state of Hawai`i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in protective custody; and d) who have, according to Saguaro’s established procedures, declared that the Native Hawaiian religion is their faith. The representatives of the Protective Custody Damages Subclass shall be Plaintiffs Keawe and Kane. The class counsel shall be the counsel described supra. Plaintiffs’ Motion is DENIED in all other respects. All other remaining claims shall be prosecuted on behalf of the named Plaintiffs only. IT IS SO ORDERED. // // // //
72

DATED AT HONOLULU, HAWAII, September 30, 2014. /s/ Leslie E. Kobayashi
Leslie E. Kobayashi United States District Judge
RICHARD KAPELA DAVIS, ET AL. VS. NEIL ABERCROMBIE, ET AL.; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AMENDED SECOND MOTION FOR CLASS CERTIFICATION
73

 
 Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 1 of 18 PageID #: 19716

1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, ET AL., )

)

Plaintiffs )

)

vs.

)

)

CORRECTIONS CORPORATION OF

)

AMERICA, ET AL.,

)

)

Defendants. )

)

)

_________________________________)

CASE NO. CV11-00144LEK-BMK
May 14, 2015 3:56 p.m.
U.S. District Court 300 Ala Moana Boulevard Honolulu, Hawaii 96850

TRANSCRIPT OF SETTLEMENT TERMS ON THE RECORD BEFORE THE HONORABLE BARRY M. KURREN UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For Plaintiffs:

NATIVE HAWAIIAN LEGAL CORPORATION By: SHARLA ANN MANLEY, ESQ. 1164 Bishop Street, #1205 Honolulu, HI 96813

For Plaintiffs:

LAW OFFICES OF HOWARD K. LUKE By: HOWARD K. LUKE, ESQ. 841 Bishop Street, #2022 Honolulu, HI 96813

Proceedings recorded by electronic sound recording; transcript produced by transcription service.

Maukele Transcribers LLC Jessica B. Cahill, CET**D-708
P.O. Box 1652 Wailuku, Maui, Hawaii 96793
Telephone: (808)244-0776

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 2 of 18 PageID #: 19717

2

APPEARANCES: (Continued) For Defendants:
For Defendants:

ROECA LURIA & HIRAOKA By: APRIL LURIA, ESQ. 841 Bishop Street, #900 Honolulu, HI 96813
STRUCK WIENEKE & LOVE, PLC By: RACHEL N. LOVE, ESQ. 3100 West Ray Road, #300 Chandler, AZ 85226

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 3 of 18 PageID #: 19718

3

1 MAY 14, 2015

3:56 P.M.

2

THE CLERK: All rise. The United States District

3 Court, for the District of Hawaii, with the Honorable Barry M.

4 Kurren, United States Magistrate Judge presiding is now convened.

5 You may be seated.

6

Calling case number CV11-00144LEK-BMK, Richard Kapela

7 Davis, et al. v. Corrections Corporation of America, et al. This

8 hearing is called for a settlement on the record. Counsel,

9 please make your appearances.

10

MS. MANLEY: Sharla Manley for the plaintiffs.

11

MR. LUKE: Good afternoon, Your Honor, Howard Luke also

12 for the plaintiffs.

13

THE COURT: Yes, good afternoon.

14

MS. LOVE: Rachel Love for defendants.

15

MS. LURIA: And April Luria for defendants.

16

THE COURT: Good afternoon. So I understand we have

17 now reached an agreement. This, of course, will be subject to

18 the consent of members of the class, the plaintiffs. We've

19 discussed this at length during our settlement conference this

20 afternoon, but perhaps this would be a good opportunity to put

21 the material terms of the agreement on the record.

22

I know that some work will be required to finalize a

23 number of the details, but we should put the parameters of this

24 on the record at this time, so that we can be set in place, and

25 then, of course, call off the dogs on our trial prep, and trial

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 4 of 18 PageID #: 19719

4

1 date, and the like.

2

MS. LOVE: Thank you, Your Honor. Subject to approval

3 by the class representatives, the plaintiffs and as to one

4 component, subject to approval by the Hawaii Department of Public

5 Safety, as to memorializing the terms into guidelines that would

6 govern SEC operations, the parties have reached a proposed

7 resolution as to the following.

8

The terms of this will be subject to Rule 23, which

9 will require a court approval --

10

THE COURT: Yes.

11

MS. LOVE: -- of the proposed settlement, a fairness

12 hearing, and notice to the parties.

13

Today, the parties agreed -- and if I ever say

14 something wrong or that you do not believe we agreed to, please

15 jump in from the plaintiffs' side.

16

THE COURT: Yes.

17

MS. LOVE: The parties have agreed that as to Saguaro

18 Correctional Center operations pertaining to registered Native

19 Hawaiian inmate practitioners, that Native Hawaiian practitioners

20 who are registered -- and that will be the same for all of these.

21 All operations will apply to registered Native Hawaiian

22 practitioner inmates -- general population and protective custody

23 inmates may retain kihei and malo, one each, in their cell for

24 in-cell use only.

25

They shall be, pursuant to normal procedures relating

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 5 of 18 PageID #: 19720

5

1 to the lava-lava, which is already permitted to be stored in a

2 gallon Ziploc bag in the inmate's property in the cell with the

3 inmates name and number. When not in use for religious purposes,

4 the items will be stored in the inmate's respective locker. All

5 items are subject to search and handling by officers in the

6 normal course of facility operations and searches.

7

As to the agreement that general population and

8 protective custody inmates may retain kihei and malo in-cell is

9 of the agreement of the parties that these two items will be made

10 by the Native Hawaiian practitioners in their programming classes

11 that are permitted each Wednesday. One is the hula class, the

12 other the ritual and chant class.

13

The parties will work together to find a vendor for the

14 materials that will be purchased by Saguaro Correctional Center.

15 Each inmate who desires to retain one of these items may then pay

16 their pro rata share of the fabric through their inmate account

17 to pay for the item. Donations as to kihei and malo will be

18 restricted and the source and vendor will be subject to approval

19 by the Saguaro Correctional Center.

20

As to inmates who currently retain a lava-lava in their

21 cells, those will be grandfathered into the process, and they may

22 retain those. As to any inmates who in the future request a

23 lava-lava, they will go through the same process whereby the

24 facility will purchase fabric and they can be made in the

25 programming classes.

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 6 of 18 PageID #: 19721

6

1

As to the allowance of inmates to possess -- and this

2 would be general population or protective custody inmates -- to

3 possess bamboo nose flutes, the process that is being currently

4 put into place by the Saguaro Correctional Center, which is a

5 loaner system where an inmate may check out for a weeklong basis,

6 subject to any restriction as to an individual based upon safety

7 and security. There are six nose flutes at the facility

8 available -- that will be available for checkout. SCC agrees to

9 purchase from a vendor, six additional nose flutes that will be

10 permitted for the checkout process.

11

The in-cell retention list will be posted in the

12 chapel. Additionally, Saguaro Correctional Center will add the

13 in-cell retention list to Policy 14-6, in the space that allows

14 for specific protocols as to the Saguaro Correctional Center.

15

If any inmate changes their religion from the Native

16 Hawaiian religion, then they are no longer allowed to possess the

17 in-cell items and those will be dealt with the normal property

18 protocols.

19

As to amulets, those will be allowed to be possessed by

20 the inmates at the facility as to all security levels. There

21 will be a choice of five for the Native Hawaiian practitioners.

22 The parties will work together to identify one to two sources and

23 vendors whereby, the same process, the facility will order the

24 amulets for the inmate. The inmate will pay for the amulet out

25 of his inmate account and the five shapes will be subject to

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 7 of 18 PageID #: 19722

7

1 approval by the facility as to shape and security issues. The

2 parties will work together on that.

3

The facility also agrees -- Saguaro Correctional Center

4 also agrees to continue to implement the process already

5 currently being implemented whereby general population and

6 protective custody inmates only may possess a small amount of

7 coconut oil. The facility will source the coconut oil in bulk

8 form from a Hawaiian company. It will then be parsed out into

9 squeeze bottles for the individual inmates, and they make the

10 request for that just as they do for amulets or any other item.

11

The inmates will pay for their pro rata portion of the

12 oil and the process will be put into place for replenishing of

13 the oil just like the salt process. When I say just like, it may

14 be a little bit different as to frequency based upon how many

15 ounces are allowed.

16

THE COURT: Yes.

17

MS. LOVE: The parties agree that as to any of the

18 programming that are agreed to by the parties that those will be

19 implemented within 60 days of final settlement.

20

Saguaro Correctional Center will continue to provide

21 salt to the registered Native Hawaiian practitioners as it

22 currently does.

23

As to items for communal use that are in the chapel,

24 SCC will not authorize donations. However, if -- of additional

25 items at this time. However, on an individualized basis, if a

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 8 of 18 PageID #: 19723

8

1 communal chapel item becomes broken, unusable, or in need of

2 replacement, then a request can be made and the facility will

3 work with the inmate population to identify a source and/or a

4 vendor for that item. It will be considered on a case-by-case

5 basis as to that individual item.

6

The facility also agrees to publish a communal items

7 list for the general population Native Hawaiian practitioners to

8 be posted in the chapel. Additionally, that will be added to

9 Policy 14-6 in the spot that is unique and specific to the

10 Saguaro Correctional Center.

11

As to outdoor worship by the general population, Native

12 Hawaiian practitioners, Saguaro Correctional Center agrees that

13 six times a year the inmates who are in the Wednesday ritual

14 class will be permitted to have their class outdoors for 1.5

15 hours, which is the total class time.

16

If there is a situation where the inmates elect, as a

17 group, not to go out that day, then that can be accommodated and

18 documented. However, it will be a situation where the whole

19 class goes out or the whole class stays in versus individuals

20 electing to go in or out.

21

The general -- for the general population, the

22 facility's current processes with respect to Makahiki, both

23 opening and closing each year, two solstice celebrations and two

24 equal equinox programs or celebrations will continue as they do

25 currently.

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 9 of 18 PageID #: 19724

9

1

Next, we speak about the Native Hawaiian practitioners

2 who are in protective custody at the Saguaro Correctional Center.

3 The protective custody inmates may retain the same in-cell items

4 as the general population inmates.

5

The registered protective custody Native Hawaiian

6 practitioners may meet once a week in a group and that is a group

7 of protective custody inmates. They will meet once a week in a

8 secure location to be determined by the facility and subject to

9 change during -- due to operations and staffing limitations.

10

The general -- or, I'm sorry -- the protective custody

11 inmates who meet once a week for 1.5 hours, will also be provided

12 access to chapel items in a restricted number and the chaplain

13 and the inmates will work on a list of items that will be taken

14 from the chapel to the protective custody inmates for their

15 weekly gathering, of a reasonable size and amount that can be put

16 on a cart and taken to their location.

17

The parties agree that this will be a list that is

18 primarily consistent and what we are speaking of is to guard

19 against the situation where each week a new list is provided.

20

Protective custody inmates who are Native Hawaiian

21 practitioners at the Saguaro Correctional Center may have a

22 limited opening and closing Makahiki with their protective

23 custody group to take place for operational reasons within a few

24 days of the general population's Makahiki celebration. The

25 location is at the discretion of the facility due to operational

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 10 of 18 19725

PageID #: 10

1 and staffing needs.

2

The general -- I'm sorry -- the protective custody

3 Makahiki will be provided the same food offerings that the

4 general population Makahiki is provided and the Makahiki will be

5 supervised by the chaplain and/or a volunteer spiritual advisor

6 where available.

7

The segregation inmates at Saguaro Correctional Center,

8 which include administrative and segregation status, as well as

9 the SHIP Program, which is the Special Housing Incentive Program,

10 steps 1, 2, and 3 is the following category. SHIP and

11 segregation inmates shall be permitted in-cell retention of

12 amulet, sea salts, written materials, and a choice of one of the

13 following: lava-lava, malo, or kihei.

14

The parties will work together to decide, whether the

15 choice of three, whether it's the lava-lava, malo, or kihei, will

16 decide which one it will be, but this will be standard among all

17 inmates, versus that situation where each inmate gets to pick one

18 of the three, it will be standard for all. For safety and

19 security reasons, SHIP and segregation inmates will not be

20 permitted to possess coconut oil or bamboo nose flutes.

21

SHIP and segregation inmates shall have access to a

22 volunteer spiritual advisor upon request and subject to

23 availability and agreements of this volunteer spiritual advisor

24 to provide services to the SHIP and segregation inmates. SHIP

25 and segregation inmates shall make a request to the chaplain,

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 11 of 18 19726

PageID #: 11

1 which is the normal process, if they desire to communicate or

2 have an interaction with a volunteer who comes to the facility.

3

As to segregation, and SHIP 1 inmates, and Makahiki,

4 they will be allowed a restricted and limited Makahiki based upon

5 safety, security, and security level concerns.

6

The chaplain will provide notice to the Native Hawaiian

7 practitioners in segregation and SHIP 1, approximately two weeks

8 in advance of a Makahiki -- that Makahiki is going to happen and

9 whether a spiritual advisor is available. If there is a

10 spiritual advisor available, the inmate may make a request to

11 meet with the spiritual advisor, and the spiritual advisor may

12 conduct a -- may meet with the inmate through the cell door for

13 approximately 15 to 20 minutes for ministry, prayers, and chants

14 that are non-destructive to the rest of the operations.

15 Additionally, ceremonial food offerings will be administered

16 through the cell food slot.

17

At the inmate's request, which must be made in writing,

18 pursuant to normal protocols at the facility, the inmate may

19 receive a Makahiki meal, the same one that is provided to the

20 general population on the day of the Makahiki.

21

As related to Makahiki, opportunities for SHIP 2 and 3

22 inmates at the Saguaro Correctional Center, again, they will be

23 provided the same notice as the segregation and SHIP 1 inmates as

24 to upcoming Makahiki and whether there will be a spiritual

25 advisor available. If there is a spiritual advisor available and

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 12 of 18 19727

PageID #: 12

1 the spiritual advisor agrees that they want to go to SHIP 2

2 and/or 3, then the registered practitioners in that pod will be

3 able to -- and when I say in that pod, SHIP 2 will do its own,

4 and then SHIP 3 will do its own, because they do not mix -- the

5 inmates who have made a written request will be permitted to come

6 out of cell and gather in the dayroom with the volunteer.

7

The chaplain will also be available at this, and they

8 may chant and pray in a non-disruptive manner. Ceremonial food

9 offerings may be administered to the inmates and if the inmate

10 makes a written request, the inmate may be provided -- or will be

11 provided a Makahiki meal to eat in his cell, the same Makahiki

12 meal that is provided to the general population.

13

And when I say Makahiki meal, both parties understand

14 that those are not special foods or a feast. It is a situation

15 as is current at the facility where those enjoying the Makahiki

16 opportunities are provided a different meal than the general

17 population. That's usually extra food and some extra dessert.

18

All participation in all programming by Native Hawaiian

19 practitioners is subject to individual restriction based upon

20 individual histories or behaviors of an inmate that may pose a

21 safety, security, or operational risk, but that will be

22 determined on an inmate by inmate basis.

23

If an inmate changes his religion from the Native

24 Hawaiian practitioner, then they are not -- they do not have the

25 opportunities for programming or property allowed to the Native

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 13 of 18 19728

PageID #: 13

1 Hawaiian practitioners in the normal course as is the same for

2 all other inmates.

3

None of the operational -- none of the operations that

4 I have just spoke of apply to any Hawaii Department of Public

5 Safety facility, they apply to Saguaro Correctional Center

6 exclusively.

7

It is the understanding of the parties that the

8 plaintiffs will waive all damages claims. The parties agree

9 there will not be a consent decree, and there will not be

10 monitoring, and the Court will not retain jurisdiction of the

11 Court -- or jurisdiction of the matter. However, the parties

12 will work together to come to an agreement as -- for defendants

13 to provide plaintiffs opportunity and notice that the agreed upon

14 programming and operations are in place.

15

It is the parties' agreement that the entire class will

16 release all claims due to this proposed resolution. The parties

17 have agreed to a joint press release, which will be issued at the

18 finalization and approval of the Court of the resolution of this

19 matter. The parties agree that in the interim, there will not be

20 press related to the pending proposal until it is approved by the

21 Court, and then by joint press release.

22

And, finally, the parties agree that subject to Rule

23 23, that all of those procedures that apply to this class as to

24 resolution of the case, including court approval of the proposed

25 resolution, a fairness hearing, and notification to the class

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 14 of 18 19729

PageID #: 14

1 will be adhered to and as ordered by the Court. I believe I've

2 covered it.

3

THE COURT: Anything else?

4

MS. MANLEY: I just want to be crystal clear that for

5 the men in SHIP and administrative segregation, in addition to

6 choosing one sacred garment, either the malo, kihei, or lava-

7 lava, they will also have in-cell an amulet, the pa'akai, and

8 written religious materials like chants or genealogies.

9

MS. LOVE: Yes, you are correct.

10

MS. MANLEY: Okay.

11

MS. LOVE: Okay. And, also, I believe I forgot this

12 portion of this, which is the monetary agreements of the parties.

13

THE COURT: Oh, yes, right. Right.

14

MS. LOVE: That to resolve the case CCA agrees to pay

15 costs incurred by the Native Hawaiian Legal Corporation in the

16 amount of $70,000.

17

THE COURT: Yes.

18

MS. LOVE: All parties to bear their own fees and their

19 own costs --

20

THE COURT: Right.

21

MS. LOVE: -- except for the $70,000, that CCA will pay

22 to the Native Hawaiian Legal Corporation.

23

THE COURT: Okay. Anything else that's been omitted?

24

MS. MANLEY: Nothing further, Your Honor.

25

THE COURT: Okay. So terrific. This is an agreement

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 15 of 18 19730

PageID #: 15

1 that you all have reached, and I know the defendants are fully on

2 board with this. All we need to do is to get the class

3 representatives to agree, and then of course notice out to the

4 class.

5

So at this point, I believe we have enough of an

6 agreement to stop the process of preparing for trial and that's

7 one of the incentives, of course, to, you know, reach this

8 agreement at this time. So I'll go ahead and vacate all of the

9 deadlines that are approaching with respect to trial. Why don't

10 we just hold on to the trial date for a few more days to see what

11 they have to say on Tuesday, although, you know, I'm confident

12 we're just going to go ahead and just vacate everything then.

13

So that's what I would suggest right now, so you don't

14 have to do -- I know what you've been doing around the clock

15 right now. We're going to put that to a halt, and we'll get word

16 on Tuesday, which I -- you know, I'm quite hopeful will be

17 positive, based on the representations that have been made here,

18 and then I think we're good to go, and we'll just set a new

19 process time, and place.

20

I don't know if you have any idea of when we can

21 actually be at a point where we have, you know, the agreement in

22 place, and we, you know, can then go ahead, and send out the

23 notice and the like for purposes of the fairness hearing. Have

24 you thought about that at all yet or do you want to give that

25 some further thought, and then we'll get back together maybe

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 16 of 18 19731

PageID #: 16

1 sometime next week to sort of figure that out?

2

MS. MANLEY: I think if we could set another status

3 conference.

4

THE COURT: No, that's what I'm going to do for sure.

5 Right.

6

MS. MANLEY: And by then, I think we'll have a clear

7 idea.

8

THE COURT: And I'm thinking maybe we ought to have a

9 status conference like around Wednesday of next week.

10

MS. LOVE: Sure.

11

THE COURT: And if you want to participate by phone or

12 -- yes, okay.

13

MS. LOVE: Thank you.

14

THE COURT: That would be fine. Right, right. Let's

15 go see if we can set something up.

16

THE CLERK: Okay. Wednesday, at 10:00.

17

THE COURT: Does that work for everyone?

18

MS. MANLEY: Yes, we're available.

19

MR. LUKE: Uh-huh.

20

THE COURT: Okay.

21

MS. LOVE: Yes, Your Honor.

22

THE COURT: Very good. Okay. I want to thank you very

23 much for the hard work that you put in today and cooperation, the

24 compromises that you've made all the way around to resolve this

25 case, and I think it's clearly in the best interest of all of the

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 17 of 18 19732

PageID #: 17

1 parties. So thank you very much for doing this. Okay.

2

MR. LUKE: Our thanks to the Court.

3

MS. LOVE: Thank you to the Court as well. Thank you,

4 Your Honor.

5

THE CLERK: All rise.

6

(Proceedings Concluded)

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:11-cv-00144-LEK-BMK Document 751 Filed 06/05/15 Page 18 of 18 19733

PageID #: 18

CERTIFICATE I, Jessica B. Cahill, court approved transcriber, do hereby certify that pursuant to 28 U.S.C. §753, the foregoing is a complete, true, and correct transcript from the official electronic sound recording of the proceedings in the aboveentitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
Dated: June 2, 2015

Jessica B. Cahill, CET**D-708

 
 Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 1 of 27 PageID #: 20206

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

RICHARD KAPELA DAVIS, MICHAEL )

HUGHES, DAMIEN KAAHU, ROBERT )

A. HOLBRON, JAMES KANE, III, )

ELLINGTON KEAWE, KALAI POAHA, )

TYRONE KAWAELANILUA`OLE

)

NA`OKI GALDONES,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as the

)

Governor of the State of

)

Hawaii; Director of Public )

Safety of the State of

)

Hawai`i NOLAN ESPINDA;

)

CORECIVIC,

)

)

Defendants.

)

_____________________________ )

CIVIL NO. 11-00144 LEK-BMK

AMENDED ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT On February 24, 2016, Ted Sakai, in his official
capacity as Director of the Hawai`i Department of Public Safety, and Corrections Corporation of America (“CCA”) filed their Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing (“Preliminary Approval Motion”).1 [Dkt. no. 778.] This Court granted the Preliminary Approval Motion at a hearing on August 8,

1 On May 16, 2017, this Court approved the parties’ stipulation to replace CCA with CoreCivic and Ted Sakai with Director of Public Safety of the State of Hawai`i Nolan Espinda. [Dkt. no. 873.] This Court will refer to CoreCivic and Director Espinda collectively as “Defendants.”

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 2 of 27 PageID #: 20207
2016. [Dkt. no. 800 (Minutes).] On February 6, 2017, this matter came before the Court for a final fairness hearing. For the reasons set forth below, and after due consideration of the evidence and arguments presented by the parties and the record in this case, the Court CONCLUDES that good cause exists to GRANT final approval of the settlement in this action pursuant to Fed. R. Civ. P. 23(e).
BACKGROUND I. Procedural History
Plaintiffs Richard Kapela Davis, Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane, III, Ellington Keawe, and Kalai Poaha filed the Second Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Second Amended Complaint”) on August 22, 2012. [Dkt. no. 145.] Plaintiff Tyrone Galdones also filed his Supplemental Complaint for Damages and for Classwide Declaratory and Injunctive Relief (“Supplemental Complaint”) on August 22, 2012. [Dkt. no. 146.]
Plaintiffs are all Hawai`i residents who were convicted and sentenced for committing criminal violations of Hawai`i law. The Second Amended Complaint alleges that, during all periods relevant to the instant case, they were incarcerated at either Saguaro Correctional Center (“Saguaro”) or Red Rock Correctional
2

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 3 of 27 PageID #: 20208
Center (“Red Rock”).2 Each Plaintiff is of Native Hawaiian ancestry and is a practitioner of the Native Hawaiian religion. Saguaro and Red Rock are private prisons in Arizona, operated by CoreCivic. The State of Hawai`i houses inmates at CoreCivic’s facilities pursuant to various contracts. [Second Amended Complaint at ¶¶ 7-10, 12(c), 17-18; Supplemental Complaint at ¶¶ 7-10, 12(c), 17-18.] In the instant case, Plaintiffs allege that Defendants have prohibited them from exercising their constitutional and statutory right to practice their faith.
The Second Amended Complaint alleges the following claims: -Violation of Plaintiffs’ right to the free exercise of their
religion pursuant to the First and Fourteenth Amendments of the United States Constitution as to daily worship practices (“Count I”), the observance of Makahiki3 (“Count II”), access to sacred items (“Count III”), access to sacred space (“Count IV”), and access to a spiritual advisor (“Count V”); -Violation of Plaintiffs’ equal protection rights pursuant to the Fourteenth Amendment of the United States Constitution as to daily worship practices (“Count VI”), the observance of
2 As of May 30, 2013, the Hawai`i inmates who were assigned to Red Rock were permanently transferred to Saguaro. [Defs.’ Concise Statement of Facts in Supp. of Motion for Summary Judgment, filed 7/31/13 (dkt. no. 361-2), Decl. of Warden Thomas at ¶ 5; id., Decl. of Warden Stolc at ¶ 5.]
3 Plaintiffs allege that “[t]he Makahiki season is signaled by the rising of the Makali`i (Pleiades) Constellation in October-November of each year. The Makahiki season ends by the setting of Makali`i (Pleiades) Constellation in February-March of each year.” [Second Amended Complaint at ¶ 47.] There are ceremonies, including customary and traditional activities, marking the beginning and the end of the Makahiki season. [Id. at ¶ 48.]
3

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 4 of 27 PageID #: 20209
Makahiki (“Count VII”), access to sacred items (“Count VIII”), access to sacred space (“Count IX”), and access to a spiritual advisor (“Count X”); -Violation of Plaintiffs’ right to free exercise of their religion pursuant to Article I, § 4 of the Hawai`i State Constitution as to daily worship practices (“Count XI”), the observance of Makahiki (“Count XII”), access to sacred items (“Count XIII”), access to sacred space (“Count XIV”), and access to a spiritual advisor (“Count XV”); -Violation of Plaintiffs’ equal protection rights pursuant to Article I, § 5 of the Hawai`i State Constitution as to daily worship practices (“Count XVI”), the observance of Makahiki (“Count XVII”), access to sacred items (“Count XVIII”), access to sacred space (“Count XIX”), and access to a spiritual advisor (“Count XX”); -Violation of Plaintiffs’ rights relating to native Hawaiian customary and traditional practices pursuant to Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1 as to the observance of Makahiki (“Count XXI”); -Violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), as to daily worship practices (“Count XXII”), the observance of Makahiki (“Count XXIII”), access to sacred items (“Count XXIV”), access to sacred space (“Count XXV”), and access to a spiritual advisor (“Count XXVI”).
The Supplemental Complaint states that Plaintiff Galdones “hereby joins in and asserts COUNTS I through XXVI of the Amended Complaint[4] on his own behalf and on behalf of all those similarly situated.” [Supplemental Complaint at ¶ 124.] The Supplemental Complaint also asserted an additional claim alleging that Defendants retaliated against him, in violation of
4 Plaintiffs’ Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief, [filed 11/14/11 (dkt. no. 42),] alleged the same twenty-six claims that Plaintiffs allege in the Second Amended Complaint.
4

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 5 of 27 PageID #: 20210
both federal law and state law. [Id. at ¶¶ 125-37.] This Court dismissed Galdones’s retaliation claim under federal law for failure to exhaust his administrative remedies. [Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss for Failure to Exhaust, filed 4/11/13 (dkt. no. 286) (“4/11/13 Order”), at 28-29.5] Plaintiff Galdones’s state law retaliation claim and the claims that are asserted in the Second Amended Complaint remained.
On September 30, 2014, this Court issued its Order Granting in Part and Denying in Part Plaintiffs’ Amended Second Motion for Class Certification (“9/30/14 Certification Order”). [Dkt. no. 644.6] This Court certified: -“a class, seeking prospective declaratory and injunctive relief,
as to Plaintiffs’ remaining claims regarding daily, outdoor, group worship and the remaining claims regarding access to sacred items (‘the Prospective Relief Class’)”; 9/30/14 Certification Order, 2014 WL 4956454, at *28; -“a subclass, seeking prospective declaratory and injunctive relief, with regard to: 1) the same claims described supra as to the Prospective Relief Class; and 2) the remaining state and federal claims regarding lack of access to communal sacred items in protective custody (‘the Prospective Relief Subclass’)”; id. at *29;7
5 The 4/11/13 Order is available at 2013 WL 1568425. 6 The 9/30/14 Certification Order is also available at 2014 WL 4956454. 7 The 9/30/14 Certification Order, however, mistakenly refers to the Protective Custody Prospective Relief Subclass as the “Prospective Relief Subclass.” 2014 WL 4956454, at *29.
5

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 6 of 27 PageID #: 20211
-“a class, seeking nominal damages and other retrospective relief, as to Counts I through X, and XXII through XXVI (‘the Damages Class’)”; id.;
-“a subclass, seeking nominal damages and other retrospective relief, as to Counts I, II, III, V, VI, VII, VIII, X, XXII, XXIII, XXIV, and XXVI (‘the SHIP Damages Subclass’)”;8 id.; and
-“a subclass, seeking nominal damages and other retrospective relief, as to Counts I through X, and XXII through XXVI (‘the Protective Custody Damages Subclass’)”; id. A. Remaining Claims By the time of trial, which was scheduled for June 5,
2015, the following claims remained: 1. Class Claims
-Counts I (federal free exercise), VI (federal equal protection), XI (state free exercise), XVI (state equal protection), and XXII (RLUIPA) regarding daily, outdoor, group worship by the Prospective Relief Class and the Protective Custody Prospective Relief Subclass;
-Counts III (federal free exercise), XIII (state free exercise), and XXIV (RLUIPA) regarding lack of daily access to personal amulets and `ohe hano ihu (bamboo nose flute) by the Prospective Relief Class and the Protective Custody Prospective Relief Subclass;
-Counts VIII (federal equal protection) and XVIII (state equal protection) regarding lack of daily access to personal amulets, `ohe hano ihu, coconut oil, and malo, kihei, and pau (native garments) by the Prospective Relief Class and the Protective Custody Prospective Relief Subclass;
-Counts III, VIII, XIII, XVIII, and XXIV regarding lack of access to communal sacred items in protective custody by the Protective Custody Prospective Relief Subclass;
8 “SHIP” refers to Saguaro’s Special Housing Incentive Program. 9/30/14 Certification Order, 2014 WL 4956454, at *29.
6

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 7 of 27 PageID #: 20212
-Counts I through V (federal free exercise), VI through X (federal equal protection), and XXII through XXVI (RLUIPA) by the Damages Class and the Protective Custody Damages Subclass; and -Counts I, II, III, V, VI, VII, VIII, X, XXII, XXIII, XXIV, and
XXVI by the SHIP Damages Subclass. 2. Individual Claims The individual Plaintiffs had the following claims, in
addition to the claims they were pursuing as class representatives. -Plaintiff Galdones’s state law retaliation claim, set forth in
his Supplemental Complaint. -Plaintiffs Kane and Keawe’s federal claims for compensatory
damages, nominal damages, and retrospective equitable relief based on alleged violations that occurred while they were in protective custody at Red Rock. See Order Granting in Part and Denying in Part Defs.’ Motion for Summary Judgment Re: Sovereign Immunity/Damages, filed 7/31/14 (dkt. no. 596) (“7/31/14 Summary Judgment Order”), at 37, available at 2014 WL 3809499, at *11 (ruling that Plaintiffs’ remaining claims under 42 U.S.C. § 1983 and RLUIPA claims for damages are limited to compensatory and nominal damages). These were the claims regarding: the observance of Makahiki (Counts II, VII, and XXII); access to sacred items (Counts III, VIII, and XXIV); and access to a spiritual advisor (Counts V, X, and XXVI). -Plaintiffs Kane and Keawe’s claims for prospective equitable relief regarding the observance of Makahiki in protective custody at Saguaro (Counts II, VII, XII, XVII, and XXII). -Plaintiff Davis’s federal claims for compensatory damages, nominal damages, and retrospective equitable relief based on the exclusion from certain Makahiki ceremonies (Counts II, VII, and XXII) on the ground that he allegedly had insufficient attendance at the Native Hawaiian religion classes that were a prerequisite to participation. -Plaintiff Holbron’s claims for prospective equitable relief regarding the practice of the Native Hawaiian religion in administrative segregation and SHIP. These are: the observance of Makahiki (Counts II, VII, XII, XVII, and
7

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 8 of 27 PageID #: 20213
XXII); access to sacred items (Counts III, VIII, XIII, XVIII, and XXIV); and access to a spiritual advisor (Counts V, X, XV, XX, and XXVI). However, his claims were subject to him establishing that there is a reasonable expectation that he may be placed in administrative segregation and/or SHIP in the future. See Amended Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron’s Counter-motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act, filed June 13, 2014 (“6/13/14 Summary Judgment Order”) (dkt. no. 544), available at 2014 WL 2716856, at *5. B. Settlement
On May 14, 2015, the magistrate judge held a settlement conference. The case settled and the terms of the settlement were placed on the record (“Settlement on the Record”). [Minutes, filed 5/14/15 (dkt. no. 745).] The magistrate judge stated:
I understand we have now reached an agreement. This, of course, will be subject to the consent of members of the class, the plaintiffs. We’ve discussed this at length during our settlement conference this afternoon, but perhaps this would be a good opportunity to put the material terms of the agreement on the record.
I know that some work will be required to finalize a number of the details, but we should put the parameters of this on the record at this time, so that we can be set in place, and then, of course, call off the dogs on our trial prep, and trial date, and the like. [Trans. of 5/14/15 proceedings (“5/14/15 Trans.”), filed 6/5/15 (dkt. no. 751), at 3-4.] After counsel placed the essential
8

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 9 of 27 PageID #: 20214
terms of the agreement on the record, the magistrate judge stated:
This is an agreement that you all have reached, and I know the defendants are fully on board with this. All we need to do is to get the class representatives to agree, and then of course notice out to the class.
So at this point, I believe we have enough of an agreement to stop the process of preparing for trial and that’s one of the incentives, of course, to, you know, reach this agreement at this time. . . . [Id. at 15.] II. The Settlement Defendants describe the terms of the settlement reached on May 14, 2015 as follows:
Religious Items: - Registered Native Hawaiian practitioners in
[the general population (“GC”)] and [protective custody (“PC”)] may: (1) retain in-cell one each of lava lava (pau), kīhei, and malo in a Ziploc bag with the inmate’s in-cell property; (2) retain previously authorized pa`akai (sea salt), written religious materials (chants/ genealogies), and ti leaf; (3) check out a `ohe hano ihu (bamboo nose flute) for religious use; (4) have access to communal religious items stored in the chapel during group programming; (5) purchase a small amount of coconut oil for in-cell religious use only; and (6) purchase one approved amulet. - Kīhei, malo and lava to be made by [Saguaro] Native Hawaiian practitioners in the GP religious programming classes. Parties to work together to identify a vendor source for materials, [Saguaro] to procure source
9

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 10 of 27 PageID #: 20215
materials, inmates paying their pro rata share for fabric cost through their inmate accounts (donations restricted). - Bamboo nose flute loaner system to be implemented for the six flutes available in the [Saguaro] chapel for week long checkouts, subject to individualized safety/security restriction. [Saguaro] to purchase six additional flutes for the loaner system. - Counsel to work together to identify and approve vendor source for amulets, in five shapes, subject to [Saguaro] approval, inmates paying their pro rata cost for amulets through their inmate accounts. - [Saguaro] to source coconut oil in bulk from a Hawaiian company, inmates paying their pro rata share, with process to be put into place for frequency of refills. - Registered Native Hawaiian practitioners in administrative/ disciplinary segregation custody (including SHIP I/II/III), may retain: (1) one approved amulet; (2) pa`akai (sea salt); (3) written religious materials (chants/genealogies); and (4) either a lava lava, kīhei, or malo (Parties to work together to elect one standard item/no individual inmate election. No possession of coconut oil or bamboo nose flutes for safety/security reasons. - [Saguaro] agrees to publish in-cell retention list in [Saguaro] chapel and add list to [Saguaro] Policy 14-6. - While donations are restricted, replacement of communal use religious items may be requested and [Saguaro] agrees to work with inmate population to identify a source/vendor for replacement. - [Saguaro] agrees to publish a communal items list in [Saguaro] chapel and add list to [Saguaro] Policy 14-6.
10

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 11 of 27 PageID #: 20216
Religious Programming: - Registered Native Hawaiian practitioners in
GP: (1) permitted outdoor worship classes six times a year for 1.5 hours each time during regularly scheduled ritual class; and (2) permitted to participate in two solstice/equinox and two Makahiki celebrations each year. - Registered Native Hawaiian practitioners in PC: (1) permitted once a week group gathering for 1.5 hours in a secure location to be determined by the facility; (2) provided access to limited number of communal items stored in the chapel; and (3) permitted limited, two Makahiki celebrations each year within a few days of the GP Makahiki celebrations, provided the same food offerings permitted for GP. - Upon request and subject to availability, registered Native Hawaiian practitioners in segregation/SHIP I may request to meet with a spiritual advisor (if available) for Makahiki, the spiritual advisor may meet with the inmate through the cell door for approximately 15-20 minutes for nondisruptive ministry/prayers/chants. Ceremonial food offerings administered by the spiritual advisor through the cell door food slot and, by written advance request, inmate may receive (in-cell) the meal tray provided to GP inmates participating in Makahiki. - Upon request and subject to availability, registered Native Hawaiian practitioner inmates in SHIP II/III may request to meet with a spiritual advisor (if available) for Makahiki, the spiritual advisor may meet with the inmates in the dayroom of the SHIP II/III pods (separate gatherings) for non-disruptive chants/prayers/administering of ceremonial food offerings. By written advance request, inmates may receive (in-cell) the meal tray provided to GP inmates participating in Makahiki.
11

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 12 of 27 PageID #: 20217
- Participation in programming subject to restrictions for safety/security/operational risks based on an individualized assessment of an inmate’s history/behavior.
Waiver of Claims/Damages and Costs Payment: - The individual Plaintiffs and the Class waive
and release all claims, including all claims for damages. - Defendant [CoreCivic] agrees to pay a total amount of $70,000.00 to the Native Hawaiian Legal Corporation for costs incurred. Parties to incur their own attorneys’ fees. Other Provisions: - Within sixty (60) days after the Court has approved the final Settlement Agreement, the agreed upon religious programming and items will be made available for [Saguaro] inmates registered as Native Hawaiian practitioners.
- If an inmate changes his religion from Native Hawaiian to another religion, he will no longer be allowed to possess the in-cell items, use any communal religious items, or participate in Native Hawaiian programming.
- The Parties agree there will be no consent decree or court-ordered monitoring, and the Court will not retain jurisdiction over enforcement of this Agreement.
[Mem. in Supp. of Preliminary Approval Motion at 12-15 (footnote and citations omitted).] III. Approval Process
The magistrate judge held two status conferences to address issues related to the settlement during May 2015. [Dkt. nos. 747, 749.] On October 16, 2015, the magistrate judge held a
12

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 13 of 27 PageID #: 20218
further settlement conference. He reiterated that the case had settled and stated that the parties were working on the settlement documents. [Minutes, filed 10/16/15 (dkt. no. 765); Entering Order, filed 10/21/15 (dkt. no. 766) (clarifying deadlines in dkt. no. 765).] The parties, however, had difficulty finalizing the settlement documents, and the magistrate judge held further status conferences to address issues related to the settlement. [Dkt. nos. 769, 772, 776.]
As previously noted, Defendants filed their Preliminary Approval Motion on February 24, 2016. Plaintiffs filed a memorandum in opposition on April 18, 2016, and Defendants filed a reply on April 25, 2016. [Dkt. nos. 789, 790.] This Court granted preliminary approval on August 8, 2016.
On September 7, 2016, this Court issued the Order Approving Notice of Proposed Class Action Settlement and Setting Final Fairness Hearing (“9/7/16 Notice Order”). [Dkt. no. 806.] The 9/7/16 Notice Order set the final fairness hearing for February 6, 2017 and approved the class notice attached to the 9/7/16 Notice Order as Exhibit A. This Court ordered the parties to commence distribution of the approved notice within ten days of the filing of the 9/7/16 Notice Order and issued deadlines for the submission of objections from class members and the filing of the parties’ briefs regarding whether class members could opt-out of the settlement.
13

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 14 of 27 PageID #: 20219
On September 26, 2016, Defendants filed a notice attesting to their compliance with the notice provisions of the 9/7/16 Notice Order. [Dkt. no. 818.] On December 8, 2016, and December 15, 2016, Plaintiffs and Defendants filed their respective statements addressing the opt-out issue. [Dkt. nos. 860, 861.]
Prior to the final fairness hearing, this Court received fourteen letters of objection to the settlement. [Dkt. nos. 815-17, 821-22, 829, 835, 848-51, 857-59, 864.] These include a letter signed by nine inmates and a letter from Class counsel on behalf of Plaintiffs. [Dkt. nos. 857, 858.] Many of the objections expressed personal complaints that were outside of the scope of this litigation. The majority of the objections merely reiterated argument that have already been addressed by this Court.
STANDARD Federal Rule of Civil Procedure 23(e) states, in pertinent part: The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a
14

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 15 of 27 PageID #: 20220
hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court’s approval. “The purpose of Rule 23(e) is to protect the unnamed members of the class from unjust or unfair settlements affecting their rights.” In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008) (citation omitted). This Court must examine the parties’ settlement as a whole for overall fairness. This Court must approve or reject the settlement in this case in its entirety; this Court cannot alter certain provisions. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Hanlon directs a district court evaluating a proposed class action settlement to balance the following factors: the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and
15

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 16 of 27 PageID #: 20221
views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Id. (citations omitted).
DISCUSSION
I. Existence of a Settlement Agreement At the outset, this Court must address Plaintiffs’
argument that the parties never actually reached a settlement agreement. Plaintiffs raised this argument in their memorandum in opposition to the Preliminary Approval Motion, and this Court has already rejected this argument in granting the motion. However, Plaintiffs continue to raise this argument. [Pltfs.’ Statement Regarding Allowing Individuals to Opt-out, filed 12/8/16 (dkt. no. 860), at 1 (asserting that “there is no agreement that Defendants have signed and promised to be bound by”).] This district court has stated:
Federal courts apply state contract law principles to the construction and enforcement of settlement agreements, even if the underlying claims are federal. See O’Neil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004); United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992). In order to be enforceable, a settlement agreement must have the traditional elements of a contract: offer, acceptance, consideration, and parties who have the capacity and authority to enter into the agreement. See Amantiad v. Odum, 90 Hawai`i 152, 162, 977 P.2d 160, 170 (1999). In addition, there must be mutual asset or a meeting of the minds as to all the essential elements of the contract. See Mednick v. Davey, 87 Hawai`i 450, 458, 959 P.2d 439, 447 (Ct. App. 1998). . . .
16

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 17 of 27 PageID #: 20222
If all of the elements of a valid contract are established, the settlement agreement should be given full force and effect unless there is evidence of bad faith or fraud. See Moran v. Guerreiro, 97 Hawai`i 354, 371, 37 P.3d 603, 620 (Ct. App. 2001) (“Generally, in the absence of bad faith or fraud, when parties enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it.” (quoting Miller v. Manuel, 9 Haw. App. 56, 63, 828 P.2d 286, 291 (Ct. App. 1991)). . . . Kaina v. Cty. of Maui, Civil No. 04–00608 DAE–LEK, 2008 WL 4108026, at *1 (D. Hawai`i Sept. 4, 2008); accord Doe v. Washoe Cty., 339 F. App’x 747, 748 (9th Cir. 2009) (“In determining whether a conditional settlement agreement is binding, courts look to whether the parties demonstrated an intent to be bound by the circumstances and the terms of the agreement.”). Based upon counsel’s statements during the Settlement on the Record, this Court FINDS that: there was an offer, acceptance, and agreed upon consideration; the parties who participated in the settlement conference which resulted in the Settlement on the Record had the capacity and authority to enter into the settlement; and counsel agreed to the essential terms of the settlement. Further, this Court rejects Plaintiffs’ argument that, because the parties never generated a signed written agreement, Defendants are not bound by the terms stated during the Settlement on the Record. The representations by Defendants’ counsel at the Settlement on the Record and in their subsequent filings in the settlement approval process are sufficient
17

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 18 of 27 PageID #: 20223
evidence of Defendants’ agreement to the settlement. If Defendants fail to honor the terms of the settlement after this Court grants final approval, Defendants’ breach of the settlement agreement would be actionable. Finally, there is no evidence in the record of bad faith or fraud by Defendants or their counsel in the settlement process. This Court therefore CONCLUDES that, subject to the Court’s approval, there is a valid and enforceable settlement agreement between the parties. II. Request for Litigation Expenses
Insofar as the settlement includes reimbursement of Class counsel’s litigation expenses, this Court must examine the reasonableness of the award before it can grant final approval of the settlement. Fed. R. Civ. P. 23(h) states, inter alia: “In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Thus, pursuant to Rule 23(h), the parties’ settlement agreement alone is a sufficient basis for an award of reasonable nontaxable costs to Plaintiffs. The Court, however, emphasizes that it has only relied upon the parties’ agreement as the basis for Plaintiffs’ entitlement to the award; the Court has not relied upon the parties’ representation that the requested award is reasonable. The Court will independently review the requested award for reasonableness. See In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (noting
18

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 19 of 27 PageID #: 20224
that, even where the parties in a class action have agreed to an amount for attorneys’ fees and costs, “courts have an independent obligation to ensure that the award, like the settlement itself, is reasonable”). Based on this Court’s knowledge of the proceedings in the case, which has been pending in this district court for over six years, this Court FINDS that the payment of $70,000.00 for the litigation costs incurred by Class counsel is reasonable.
The Court next turns the analysis of whether the parties’ settlement meets the requirements set forth in Rule 23(e). III. Rule 23(e) Requirements
A. Request for a Second Opt-out Period This Court certified the Saguaro Damages Class, the
SHIP Damages Subclass, and the Saguaro Protective Custody Damages Subclass pursuant to Rule 23(b)(3). See 9/30/14 Certification Order, 2014 WL 4956454, at *28. Thus, pursuant to Rule 23(e)(4), this Court “may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.” (Emphasis added.) Plaintiffs argue that the Class members should be allowed to opt out of the settlement because Rule 23(e) encourages it, and because it is necessary to protect the Class members’ due process rights.
19

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 20 of 27 PageID #: 20225
This Court disagrees with Plaintiffs that Rule 23(e)(4) encourages or favors allowing a post-settlement opt-out process. Rule 23(e)(4)’s use of the word “may” does not support Plaintiffs’ position; it means that the decision to require a post-settlement opt-out process is within the court’s sound discretion. See, e.g., In re Washington Mut., Inc., No. 2:08-md-1919 MJP, 2015 WL 12803633, at *1 (W.D. Wash. June 22, 2015) (“[T]he Court will exercise its discretion under Rule 23(e)(4) and will not provide Class Members with a second opportunity to exclude themselves from the Class in connection with this Settlement.”); Klein v. O’Neal, Inc., 705 F. Supp. 2d 632, 663 (N.D. Tex. 2010) (“Under Rule 23(e)(4), the decision whether to allow a second opt out is left to the court’s discretion.”).
Further, in a related context, the district court in Klein stated, “class members who object to a proposed settlement on due process grounds ‘must allege constitutional violations with factual detail and particularity.’” 705 F. Supp. 3d at 663 (some citations and internal quotation marks omitted) (quoting Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004)). While this Court does not conclude that Plaintiffs’ argument in favor of a post-settlement opt-out process must meet this same standard, this Court does conclude that the facts and legal
20

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 21 of 27 PageID #: 20226
arguments Plaintiffs have presented do not warrant ordering a post-settlement opt-out process based on due process grounds.
Plaintiffs also argue that a second opt-out period is necessary to protect the Class members’ due process rights because Defendants are seeking approval of a settlement that they themselves are not bound to, and because Plaintiffs have not actually agreed to the purported settlement. This Court has already rejected these arguments, and therefore CONCLUDES that these arguments do not constitute grounds for a second opt-out period.
Further, this Court notes that only the Damages Class and subclasses were certified – to seek nominal damages only – pursuant to Rule 23(b)(3). See 9/30/14 Certification Order, 2014 WL 4956454, at *21 (finding that the Prospective Relief Class and the Protective Custody Prospective Relief Subclass met the Rule 23(b)(2) requirements). “In a Rule 23(b)(2) class action, . . . class members are not allowed to opt out.” Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000). The fact that the Rule 23(b)(2) class and subclasses were not entitled to an opt-out period in the fist instance and the fact that the settlement does not include any award of damages weigh against the requirement of a post-settlement opt-out process.
This Court, in the exercise of its sound discretion, DECLINES to order a second opt-out period in the instant case.
21

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 22 of 27 PageID #: 20227
B. Remaining Requirements Based on the class notification efforts described
above, the Court FINDS that, as required by Rule 23(e)(1), notice of the settlement was directed in a reasonable manner to all Class members who would be bound by the settlement.
Further, at the August 8, 2016 hearing, this Court granted the Preliminary Approval Motion, finding that the proposed settlement was “fair, reasonable, and adequate,” as required by Rule 23(e)(2). Defendants’ Preliminary Approval Motion also satisfies Rule 23(e)(3)’s requirement of a statement identifying the parties’ agreement.
This Court received objections from Class members for approximately three months prior to the final fairness hearing. This Court FINDS that any Class member who objected to the settlement had the opportunity to present his objections to this Court, as required by Rule 23(e)(5).
In light of the foregoing, this Court FINDS that all of the Rule 23(e) requirements have been satisfied in this case. This Court now turns to the evaluation of the settlement under the Hanlon analysis. IV. Hanlon Factors
As to the first Hanlon factor, the strength of the plaintiffs’ case, while Plaintiffs had multiple claims survive summary judgment, at the time of the Settlement on the Record,
22

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 23 of 27 PageID #: 20228
Defendants’ motion for de-certification was pending, as were numerous motions in limine.9 The rulings on these motions could have had a significant effect on the course of the trial. Based on the existing record, it is not clear that which side would have prevailed at trial. This Court therefore FINDS that the first Hanlon factor weighs in favor of approving the settlement.
As to the second Hanlon factor, the risk, expense, complexity, and likely duration of the rest of the case, the trial was scheduled to begin on June 2, 2015. The trial was expected to last approximately ten days. [Minutes, filed 5/1/15 (dkt. no. 703) (final pretrial conference before the magistrate judge).] This Court FINDS that the risk, expense, and complexity of the trial weighs in favor of approving the settlement.
As to the third Hanlon factor, the risk of maintaining class action status, Defendants’ decertification motion was pending at the time of the Settlement on the Record. This Court therefore FINDS that this factor weighs in favor of approving the settlement.
As to the fourth Hanlon factor, the amount offered in settlement, the settlement does not involve any monetary payments to the Class. However, it involves significant policy and
9 Defendants filed their Motion for Decertification of Class Action Claims on April 24, 2015. [Dkt. no. 696.] On May 11, 2015, Plaintiffs filed eleven motions in limine. [Dkt. nos. 71019, 729.] On May 12, 2015, Defendants filed fourteen motions in limine. [Dkt. nos. 723-28, 730-31, 734-36, 738, 741-42.]
23

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 24 of 27 PageID #: 20229
programming changes at Saguaro that will benefit the members of the Class and will address many of the conditions challenged in this case. This Court therefore FINDS that the fourth Hanlon factor weighs in favor of approving the settlement.
As to the fifth Hanlon factor, the extent of discovery completed and the stage of the proceedings, the Settlement on the Record occurred less than three weeks prior to the start of trial. Compared to the significant amount of time the case had been pending and the extensive litigation practice that occurred prior to the Settlement on the Record, there was a relatively short time remaining until the expected end of the trial. However, settling the case avoided, not only the trial itself, but also the possibility of post-trial motions and appeals. This Court therefore FINDS that the fifth Hanlon factor is neutral.
As to the sixth Hanlon factor, it is undisputed that both the Class and Defendants are represented by experienced counsel who have specialized knowledge of cases such as this one. At the time of the Settlement on the Record, Class counsel and Defendants’ counsel agreed to the terms of the settlement, which the magistrate judge described as “clearly in the best interest of all of the parties.” [5/14/15 Trans. at 16-17.] Defendants have continued to advocate the reasonableness of the settlement. Although Class counsel filed objections to the settlement on behalf of Plaintiffs prior to the final fairness hearing, Class
24

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 25 of 27 PageID #: 20230
counsel’s current position must be viewed in light of their position at the time of the Settlement on the Record and in light of the fact that this Court has already rejected Plaintiffs’ arguments that an agreement was never reached and that Defendants are not bound by the settlement of which they seek approval. This Court therefore FINDS that the sixth Hanlon factor weighs in favor of approving the settlement.
This Court FINDS that the seventh Hanlon factor, the presence of government participants, weighs in favor of approving the settlement because two of the defendants are State of Hawai`i officials sued in their official capacity. See, e.g., California v. eBay, Inc., Case No. 5:12–cv–05874–EJD, 2015 WL 5168666, at *5 (N.D. Cal. Sept. 3, 2015) (noting in its analysis of this Hanlon factor that “the State is charged with the trust of protecting the state and its citizens”).
Finally, this Court must consider the Class members’ reaction to the settlement. In the 9/30/14 Certification Order, this Court noted that “there are 179 inmates at Saguaro . . . that have registered as practitioners of the Native Hawaiian religion.” 2014 WL 4956454, at *7. Although this Court received objections from more than twenty members of the Class (including Plaintiffs), the vast majority of the Class members who will be affected by the settlement have not objected. This Court
25

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 26 of 27 PageID #: 20231
therefore FINDS that the final Hanlon factor weighs in favor of approving the settlement.
Thus, none of the Hanlon factors weigh against settlement approval, and the majority of the factors weigh in favor of approval. This Court FINDS that the settlement – including the reimbursement of Class counsel’s litigation costs – is fair, reasonable, and adequate.
CONCLUSION On the basis of the foregoing, this Court HEREBY GRANTS final approval of the settlement and ORDERS the parties to implement the terms of the settlement. Pursuant to the terms of the settlement, all of the remaining claims in this case are HEREBY DISMISSED WITH PREJUDICE, with all parties to bear their own respective attorneys’ fees and costs of suit, except as expressly provided in this Order. There being no remaining claims in this case, the Court DIRECTS the Clerk’s Office to close this case immediately. IT IS SO ORDERED.
26

Case 1:11-cv-00144-LEK-BMK Document 875 Filed 05/22/17 Page 27 of 27 PageID #: 20232
DATED AT HONOLULU, HAWAII, May 22, 2017. /s/ Leslie E. Kobayashi
Leslie E. Kobayashi United States District Judge
RICHARD KAPELA DAVIS, ET AL. VS. NEIL ABERCROMBIE, ET AL.; CIVIL NO. 11-00144 LEK-BMK; AMENDED ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT
27

 
 Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 1 of 98
U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:11−cv−00144−LEK−BMK

CLOSED

Davis et al v. Abercrombie et al Assigned to: JUDGE LESLIE E. KOBAYASHI Referred to: MAGISTRATE JUDGE BARRY M. KURREN Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/08/2011 Date Terminated: 05/22/2017 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Richard Kapela Davis

represented by Leina'ala L. Ley Bays Lung Rose Holma 700 Bishop Street, Suite 900 Honolulu, HI 96813 808−523−9000 Fax: 808−533−4184 Email: lley@legalhawaii.com TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Sprenger Kaneohe Lawyer, LLLC P.O. Box 6288 Kaneohe, Hi 96744 206−6292 Email: anspren@nhlchi.org TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED

David Keith K Kopper Native Hawaiian Legal Corporation 1164 Bishop Street Ste 1205 Honolulu, HI 96813 521−2302 Email: dakoppe@nhlchi.org ATTORNEY TO BE NOTICED

Howard K.K. Luke Law Office of Howard K K Luke 841 Bishop St Ste 410 Honolulu, HI 96813 545−5000 Email: howard@hkkluke.com ATTORNEY TO BE NOTICED

James Kazuo Kawahito Kawahito, Shraga, Westrick, LLP 1990 S. Bundy Dr. Suite 280 Los Angeles, CA 90025 310−746−5300 Fax: 310−593−2520 Email: jkawahito@kswlawyers.com ATTORNEY TO BE NOTICED

Moses K.N. Haia , III Native Hawaiian Legal Corporation 1164 Bishop Street, Suite 1205 Honolulu, Hi 96813 521−2302 Email: mohaia@nhlchi.org

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 2 of 98

ATTORNEY TO BE NOTICED

Sharla Ann Manley Native Hawaiian Legal Corporation 1164 Bishop Street, Suite 1205 Honolulu, Hi 96813 3698393 Email: smanley@kllawhawaii.com ATTORNEY TO BE NOTICED

Shawn Westrick Kawahito, Shraga & Westrick LLP 1990 S Bundy Dr., Ste 280 Los Angeles, CA 90025 Email: swestrick@kswlawyers.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Michael Hughes

represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Sprenger (See above for address) TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED

David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED

Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED

James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED

Moses K.N. Haia , III (See above for address) ATTORNEY TO BE NOTICED

Sharla Ann Manley (See above for address) ATTORNEY TO BE NOTICED

Shawn Westrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Damien Kaahu

represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Sprenger (See above for address)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 3 of 98

TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED

David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED

Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED

James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED

Moses K.N. Haia , III (See above for address) ATTORNEY TO BE NOTICED

Sharla Ann Manley (See above for address) ATTORNEY TO BE NOTICED

Shawn Westrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Robert A. Holbron

represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Sprenger (See above for address) TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED

David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED

Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED

James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED

Moses K.N. Haia , III (See above for address) ATTORNEY TO BE NOTICED

Sharla Ann Manley (See above for address) ATTORNEY TO BE NOTICED

Shawn Westrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 4 of 98

Plaintiff James Kane, III
Plaintiff Ellington Keawe

represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew B. Sprenger (See above for address) TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED
David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED
Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED
James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED
Moses K.N. Haia , III (See above for address) ATTORNEY TO BE NOTICED
Sharla Ann Manley (See above for address) ATTORNEY TO BE NOTICED
Shawn Westrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew B. Sprenger (See above for address) TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED
David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED
Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED
James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED
Moses K.N. Haia , III (See above for address)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 5 of 98

ATTORNEY TO BE NOTICED

Sharla Ann Manley (See above for address) ATTORNEY TO BE NOTICED

Shawn Westrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Tyrone K. N. Galdones

represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharla Ann Manley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED

Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED

James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED

Moses K.N. Haia , III (See above for address) ATTORNEY TO BE NOTICED

Andrew B. Sprenger (See above for address) TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED

Plaintiff Kalai K. Poaha

represented by Leina'ala L. Ley (See above for address) TERMINATED: 07/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Sprenger (See above for address) TERMINATED: 12/17/2013 ATTORNEY TO BE NOTICED

David Keith K Kopper (See above for address) ATTORNEY TO BE NOTICED

Howard K.K. Luke (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 6 of 98
James Kazuo Kawahito (See above for address) ATTORNEY TO BE NOTICED
Moses K.N. Haia , III (See above for address) ATTORNEY TO BE NOTICED
Sharla Ann Manley (See above for address) ATTORNEY TO BE NOTICED
Shawn Westrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Neil Abercrombie in his official capacity as the Governor of the State of Hawaii TERMINATED: 09/13/2013

represented by Daniel P. Struck Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road, Suite 300 Chandler, AZ 85226 480−420−1600 Fax: 480−420−1695 Email: DStruck@strucklove.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Lewis Struck Wieneke & Love P.L.C. 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Email: dlewis@swlfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel N. Love Struck Love Bojanowski & Acedo, PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Email: RLove@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
April Luria Roeca Luria Hiraoka LLP Davies Pacific Center 841 Bishop St Ste 900 Honolulu, HI 96813 538−7500 Email: aluria@rlhlaw.com ATTORNEY TO BE NOTICED
Jamie Guzman Struck Wieneke and Love PLC 300 − 3100 West Ray Road Chandler, AZ 85226

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 7 of 98

(480) 420−1600 Email: jguzman@swlfirm.com TERMINATED: 06/12/2015 ATTORNEY TO BE NOTICED

Jodie D. Roeca Roeca Luria Shin LLP Davies Pacific Center 841 Bishop St Ste 900 Honolulu, HI 96813 538−7500 Fax: 521−9648 Email: jroeca@rlhlaw.com ATTORNEY TO BE NOTICED

Defendant
Jodie Maesaka−Hirata in her official capacity as Interim Director of the Hawaii Department of Public Safety TERMINATED: 08/22/2012

represented by David Lewis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel N. Love (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

April Luria (See above for address) ATTORNEY TO BE NOTICED

Defendant
CoreCivic formerly known as Corrections Corporation of America

represented by Daniel P. Struck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Lewis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Rachel N. Love (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

April Luria (See above for address) ATTORNEY TO BE NOTICED

Jodie D. Roeca (See above for address) ATTORNEY TO BE NOTICED

Kathleen L Wieneke Struck Wieneke & Love, PLLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1617 Fax: (480) 420−1690

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 8 of 98

Email: KWieneke@swlfirm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jamie Guzman (See above for address) TERMINATED: 06/12/2015 ATTORNEY TO BE NOTICED

Defendant
Nolan Espinda in his official capacity as Directory of the Hawaii Department of Public safety other Ted Sakai

represented by April Luria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P. Struck (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Lewis (See above for address) ATTORNEY TO BE NOTICED

Jodie D. Roeca (See above for address) ATTORNEY TO BE NOTICED

Kathleen L Wieneke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jamie Guzman (See above for address) TERMINATED: 06/12/2015 ATTORNEY TO BE NOTICED

Rachel N. Love (See above for address) ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union of Hawaii Foundation

represented by Daniel M. Gluck American Civil Liberties Union Hawaii P O Box 3410 Honolulu, HI 96801 8085870460 Fax: 8085870470 Email: daniel.m.gluck@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus HUY

represented by James J. Bickerton Bickerton Lee Dang & Sullivan Fort St Tower 745 Fort St Ste 801 Honolulu, HI 96813 599−3811 Email: bickerton@bsds.com LEAD ATTORNEY

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 9 of 98 ATTORNEY TO BE NOTICED

Date Filed 03/08/2011
03/08/2011 03/08/2011 03/08/2011 03/09/2011 03/10/2011
03/23/2011 03/23/2011
03/23/2011
03/24/2011

# Docket Text
1 Defendants' NOTICE OF REMOVAL;# 1 Declaration of April Luria, # 2 Exhibit A, # 3 Certificate of Service by Ellington Keawe, Damien Kaahu, Neil Abercrombie, Corrections Corporation of America, Michael Hughes, Jodie Maesaka−Hirata, Richard Kapela Davis, Robert A. Holbron, James Kane, III from Circuit Court of the First Circuit, State of Hawaii, case number 11−1−0266−02RMB. (Attachments: # 4 Civil Cover Sheet) (bbb, ) (Entered: 03/09/2011)
2 Removal Filing fee: $ 350.00,receipt number 254766 re 1 Notice of Removal, (bbb, ) (Entered: 03/09/2011)
3 ORDER SETTING RULE 16 SCHEDULING CONFERENCE for 09:00AM on 4/4/2011 before Magistrate Judge BARRY M. KURREN. Signed by Chief JUDGE SUSAN OKI MOLLWAY on March 8, 2011. (Attachments: # 1 MEMO To All Counsel re: Corporate Disclosure Statements)(bbb, )No COS issued for this docket entry (Entered: 03/09/2011)
4 Defendant Corrections Corporation of America's CORPORATE DISCLOSURE STATEMENT; Certificate of Service. (bbb, ) (Entered: 03/09/2011)
5 ANSWER to Complaint with Jury Demand by Neil Abercrombie, Jodie Maesaka−Hirata, and Corrections Corporation of America. (Attachments: # 1 Demand for Jury Trial, # 2 Certificate of Service) (afc) (Entered: 03/10/2011)
6 TRANSMITTAL of DOCUMENTS: First Circuit Court, State of Hawaii's − # 1 Table of Contents; # 2 Civil Information Sheet; # 3 Complaint; # 4 Governor Abercrombie, # 5 Jodie Maesaka−Hirata,, # 6 David M. Louie, # 7 Jodie Maesaka−Hirata, in her official capacity as Interim Director, # 8 Governer Neil Abercrombie, # 9 Corrections Corporation of America; # 10 Reassignment of Case; # 11 Notice of Filing Notice of Removal (part 1of2), # 12 Notice of Filing Notice of Removal (part 2of2). (bbb, ) (Entered: 03/14/2011)
7 MOTION to Change Venue April Luria appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Service)(Luria, April) (Entered: 03/23/2011)
8 NOTICE of Hearing on Motion 7 MOTION to Change Venue : Motion Hearing set for 6/6/2011 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )
CERTIFICATE OF SERVICE
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. (Entered: 03/23/2011)
9 EO: Defendants' Motion to Transfer Venue set for 6/6/2011 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI is Vacated.Motion will be scheduled before JUDGE BARRY M. KURREN. (JUDGE LESLIE E. KOBAYASHI)(wnn, )
CERTIFICATE OF SERVICE
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 (Entered: 03/23/2011)
10 EO: Rule 16 Scheduling Conference set for 4/4/2011 is continued to 4/7/2011 @ 01:30 PM before Judge BARRY M. KURREN. Rule 16 Scheduling Conference Statements are due 3/31/2011. (Judge BARRY M. KURREN)(tyk)
CERTIFICATE OF SERVICE
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 (Entered: 03/24/2011)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 10 of 98

03/28/2011 03/28/2011 03/29/2011

11 Scheduling Conference Statement. (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 03/28/2011)
12 REPORT of Planning Meeting of the Parties, Pursuant to Fed. R. Civ.P. 26(f). (Attachments: # 1 Certificate of Service)(Sprenger, Andrew) (Entered: 03/28/2011)
13 NOTICE of Hearing on 7 Defendants' Motion to Transfer Venue. Motion Hearing set for 4/28/2011 at 2:00PM before Judge BARRY M. KURREN. (kur2)

03/29/2011

CERTIFICATE OF SERVICE
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. (Entered: 03/29/2011)
14 EO: The Rule 16 Scheduling Conference set for 4/7/2011 is CONTINUED to 2:00PM on 4/28/2011 before Judge BARRY M. KURREN. Scheduling Conference Statements, if not already submitted, are due 4/21/2011. (Judge BARRY M. KURREN)(kur2)

04/04/2011

CERTIFICATE OF SERVICE
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 (Entered: 03/29/2011)
15 EO: At the agreement of counsel, the hearing on 7 Defendants' Motion to Transfer Venue set for 4/28/2011 is CONTINUED to 5/10/2011 at 1:30 PM before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(kur1)

04/04/2011

CERTIFICATE OF SERVICE
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 (Entered: 04/04/2011)
16 EO: The Rule 16 Scheduling Conference set for 4/28/2011 is CONTINUED to 1:30 PM on 5/10/2011 before Judge BARRY M. KURREN. Scheduling Conference Statements are due 5/3/2011. (Judge BARRY M. KURREN)(kur1)

04/08/2011 04/08/2011 04/08/2011 04/08/2011 04/19/2011
04/20/2011

CERTIFICATE OF SERVICE
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 (Entered: 04/04/2011)
17 CERTIFICATE OF SERVICE by Richard Kapela Davis First Set of Interrogatories to Defendant Neil Abercrombie (Sprenger, Andrew) (Entered: 04/08/2011)
18 CERTIFICATE OF SERVICE by Richard Kapela Davis First Set of Requests for Production of Documents to Defendant Neil Abercrombie (Sprenger, Andrew) (Entered: 04/08/2011)
19 CERTIFICATE OF SERVICE by Richard Kapela Davis First Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Sprenger, Andrew) (Entered: 04/08/2011)
20 CERTIFICATE OF SERVICE by Richard Kapela Davis First Set of Requests for Production of Documents to Defendant Jodie Maesaka−Hirata in Her Official Capacity as Interim Director of the Hawaii Department of Public Safety (Sprenger, Andrew) (Entered: 04/08/2011)
21 MEMORANDUM in Opposition to Defendants' Motion to Transfer Venue, filed March 23, 2011 filed by Richard Kapela Davis. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Declaration of Andrew B. Sprenger, # 11 Certificate of Word Count, # 12 Certificate of Service)(Sprenger, Andrew) (Entered: 04/19/2011)
ADVISORY NOTICE ~ personal identifer disclosed within docket entry no. 21 : "Plaintiffs' Opposition to Defendants' Motion to Transfer Venue...." Please be advised that Exhibit "4" discloses the Social Security Number for Michael Hughes. As it is the

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 11 of 98

04/26/2011 04/28/2011 04/28/2011 04/29/2011 05/03/2011 05/10/2011
05/27/2011
06/01/2011 06/22/2011
06/24/2011

responsibility of counsel to protect personal identifiers, counsel may refer to Fed.R.Civ.P. 5.2 "Privacy Protection for Filings Made with the Court", Local Rule 100.11.1 "Personal Identifiers," Local Rule 100.11.2 "Redaction/Reference List," and Local Rule 100.11.3 "Responsibility of Counsel" for guidance in redacting the information. (afc) (Entered: 04/20/2011)
22 RESPONSE in Support re 7 MOTION to Change Venue filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Declaration of April Luria, # 2 Exhibit 1, # 3 Affidavit of Todd Thomas, # 4 Affidavit of Bruno Stolce, # 5 Certificate of Service)(Luria, April) (Entered: 04/26/2011)
23 CERTIFICATE OF SERVICE by Richard Kapela Davis Plaintiffs' Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (Manley, Sharla) (Entered: 04/28/2011)
24 INITIAL DISCLOSURE by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 04/28/2011)
25 INITIAL DISCLOSURE by Richard Kapela Davis. (Manley, Sharla) (Entered: 04/29/2011)
26 Scheduling Conference Statement. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 05/03/2011)
27 EP: Hearing on 7 Defendants' Motion to Transfer Venue held. This Motion is taken under advisement. Court to prepare order. Rule 16 Scheduling Conference not held. A Scheduling Conference is set for 6/22/2011 at 9:00 a.m. before Judge Barry M. Kurren. (C7F 1:32−1:46pm.) (Judge BARRY M. KURREN)(kur2)
CERTIFICATE OF SERVICE
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 (Entered: 05/10/2011)
28 ORDER DENYING DEFENDANTS' MOTION TO TRANSFER VENUE 7 − Signed by Judge BARRY M. KURREN on 5/27/11. (emt, )
CERTIFICATE OF SERVICE
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 (Entered: 05/27/2011)
29 CERTIFICATE OF SERVICE by Neil Abercrombie (re Defendant Abercrombie's Responses to Plaintiff Davis' First Set of Interrogatories) (Luria, April) (Entered: 06/01/2011)
30 EP: Scheduling Conference held. New dates and deadlines given, as shown below. Court to prepare Rule 16 Scheduling Order. Discovery due 5/4/2012. Motions due 2/1/2012. Final Pretrial Conference set for 5/22/2012 at 9:00 AM before Judge BARRY M. KURREN. Jury Selection/Trial set for 9:00 AM on 7/3/2012 before JUDGE LESLIE E. KOBAYASHI. Settlement Conference set for 4/11/2012 at 1:30 PM before Judge BARRY M. KURREN. (C7 no record 9:07−9:12 AM.) (Judge BARRY M. KURREN)(kur1)
CERTIFICATE OF SERVICE
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 (Entered: 06/22/2011)
31 RULE 16 SCHEDULING ORDER: Signed by Judge BARRY M. KURREN on 6/23/2011. (afc)
CERTIFICATE OF SERVICE
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 (Entered: 06/24/2011)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 12 of 98

06/27/2011 06/27/2011 06/27/2011 07/05/2011 09/14/2011 09/21/2011

32 CERTIFICATE OF SERVICE by Neil Abercrombie [re: Defendant Neil Abercrombie, in his official capacity As the Governor of The State of Hawaii's Answer to Plaintiff Richard Davis' First Set of Requests for Production of Documents (dated April 8, 2011)] (Luria, April) (Entered: 06/27/2011)
33 CERTIFICATE OF SERVICE by Corrections Corporation of America [re: Defendant Corrections Corporation of America's Answer to Plaintiff Richard Davis' First Set of Requests for Production of Documents (dated April 8, 2011)] (Luria, April) (Entered: 06/27/2011)
34 CERTIFICATE OF SERVICE by Jodie Maesaka−Hirata [re: Defendant Jodie Maesaka−Hirata, in her official capacity as Interim Director of the Hawaii Department of Public Safety's First Set of Requests for Production of Documents (dated April 8, 2011)] (Luria, April) (Entered: 06/27/2011)
35 CERTIFICATE OF SERVICE by Neil Abercrombie (re Defendant Abercrombies First Supplemental Responses To Plaintiff Davis First Set of Interrogatories) (Luria, April) (Entered: 07/05/2011)
36 MOTION for Leave to File Amended Complaint Andrew B. Sprenger appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Andrew B. Sprenger, # 3 Exhibit A, # 4 Certificate of Service)(Sprenger, Andrew) (Entered: 09/14/2011)
37 NOTICE of Hearing on 36 Plaintiff's Motion for Leave to File Amended Complaint. Motion Hearing set for 10/20/2011 at 2:00 PM before Judge BARRY M. KURREN. (kur2)

09/29/2011 10/05/2011 10/20/2011

CERTIFICATE OF SERVICE
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. (Entered: 09/21/2011)
38 MEMORANDUM in Opposition re 36 MOTION for Leave to File Amended Complaint (filed September 14, 2011) filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 09/29/2011)
39 REPLY to Defendants' Opposition to Motion for Leave to File Amended Complaint filed by Richard Kapela Davis. (Attachments: # 1 Certificate of Service)(Sprenger, Andrew) (Entered: 10/05/2011)
40 EP:Hearing on 36 Plaintiff's Motion for Leave to File Amended Complaint held. This Motion is GRANTED. Andrew B. Sprenger to prepare order.A Status Conference is set for 12/2/2011 at 9:00 a.m. before Judge Barry M. Kurren.(C7F 2:03−2:13pm.) (Judge BARRY M. KURREN)(kur2)

11/04/2011

CERTIFICATE OF SERVICE
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 (Entered: 10/20/2011)
41 ORDER GRANTING PLAINTIFFS' 36 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT. related: 40 Minutes, Follows oral order of 10/20/2011. Signed by Magistrate Judge BARRY M. KURREN on November 4, 2011. (bbb, )

11/14/2011

CERTIFICATE OF SERVICE
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 (Entered: 11/04/2011)
42 AMENDED COMPLAINT for Damages and for Classwide Declaratory and Injunctive Relief against All Defendants, filed by Ellington Keawe, Damien Kaahu, Michael Hughes, Richard Kapela Davis, Robert A. Holbron, James Kane, III. (Attachments: # 1 Summons and Proof of Service)(Sprenger, Andrew) (Entered: 11/14/2011)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 13 of 98

11/15/2011 11/22/2011
11/28/2011 11/28/2011 11/28/2011 11/28/2011 12/02/2011
12/02/2011

43 SUMMONS Issued as to Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (bbb, ) (Entered: 11/15/2011)
44 CERTIFICATE OF SERVICE by Richard Kapela Davis First Set of Interrogatories to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 11/22/2011)
45 SUMMONS Returned Executed by Richard Kapela Davis. Neil Abercrombie served on 11/21/2011, answer due 12/12/2011. (Manley, Sharla) (Entered: 11/28/2011)
46 SUMMONS Returned Executed by Richard Kapela Davis. (Manley, Sharla) (Entered: 11/28/2011)
47 SUMMONS Returned Executed by Richard Kapela Davis. Jodie Maesaka−Hirata served on 11/22/2011, answer due 12/13/2011. (Manley, Sharla) (Entered: 11/28/2011)
48 SUMMONS Returned Executed by Richard Kapela Davis. (Manley, Sharla) (Entered: 11/28/2011)
49 WAIVER OF SERVICE Returned Executed by Ellington Keawe, Damien Kaahu, Michael Hughes, Richard Kapela Davis, Robert A. Holbron, James Kane, III. Corrections Corporation of America waiver sent on 11/22/2011, answer due 1/23/2012. (Sprenger, Andrew) (Entered: 12/02/2011)
50 EP: Status Conference held. All prior dates and deadlines are VACATED; new dates given as shown below. Court to prepare scheduling order. Discovery due by 11/16/2012. Motions due by 8/15/2012. Final Pretrial Conference set for 12/4/2012 09:00 AM before Judge BARRY M. KURREN. Jury Selection/Trial set for 09:00 AM on 1/15/2013 before JUDGE LESLIE E. KOBAYASHI. Settlement Conference set for 10/18/2012 02:00 PM before Judge BARRY M. KURREN. (C7 no record 9:19−9:29am.) (Judge BARRY M. KURREN)(kur2)

12/05/2011 12/06/2011

CERTIFICATE OF SERVICE
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 (Entered: 12/02/2011)
51 ANSWER to 42 Amended Complaint, (filed November 14, 2011) by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Jury Demand, # 2 Certificate of Service)(Luria, April) (Entered: 12/05/2011)
52 AMENDED RULE 16 SCHEDULING ORDER. Signed by Magistrate Judge BARRY M. KURREN on December 6, 2011. (bbb, )

01/03/2012 01/03/2012 01/03/2012 01/03/2012 01/03/2012

CERTIFICATE OF SERVICE
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 (Entered: 12/06/2011)
53 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe 2nd Set of Interrogs to Def Neil Abercrombie (Sprenger, Andrew) (Entered: 01/03/2012)
54 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe 2nd Set of Interrogs to CCA (Sprenger, Andrew) (Entered: 01/03/2012)
55 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe 1st Set of Interros to Jodie Maesaka−Hirata (Sprenger, Andrew) (Entered: 01/03/2012)
56 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe Req for Admissions to Neil Abercrombie (Sprenger, Andrew) (Entered: 01/03/2012)
57 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe Req for Admissions to CCA

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 14 of 98

01/03/2012 01/03/2012 01/03/2012 01/03/2012 01/04/2012
02/02/2012 02/02/2012 02/02/2012 02/02/2012 03/22/2012
03/23/2012
03/23/2012

(Sprenger, Andrew) (Entered: 01/03/2012)
58 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe Req for Admissions to Jodie Maesaka−Hirata (Sprenger, Andrew) (Entered: 01/03/2012)
59 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe 2nd Req for POD to Neil Abercrombie (Sprenger, Andrew) (Entered: 01/03/2012)
60 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe 2nd Req for POD to CCA (Sprenger, Andrew) (Entered: 01/03/2012)
61 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe 2nd Req for POD to Jodie Maesaka−Hirata (Sprenger, Andrew) (Entered: 01/03/2012)
ADVISORY ENTRY. The entry docket number 55 Certificate of Service, 56 Certificate of Service, 54 Certificate of Service, 57 Certificate of Service and 58 Certificate of Service filed by Damien Kaahu, Michael Hughes, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis was signed by an attorney that differ from the atty's log−in, which appears at the end of the each docket entry as: [Atty's name]). Counsel is advised to refer to page 6 of the Amended General Order Adopting Electronic Case Filing Procedures, Section 5 Signatures. NO FURTHER ACTION REQUIRED.. (bbb, ) (Entered: 01/04/2012)
62 CERTIFICATE OF SERVICE by Corrections Corporation of America [re Defendant Corrections Corporation of Americas Responses to Plaintiffs Richard Davis et al.s Request for Admissions to Defendant Corrections Corporation of America] (Luria, April) (Entered: 02/02/2012)
63 CERTIFICATE OF SERVICE by Corrections Corporation of America [re Defendant Corrections Corporation of America's Responses to Plaintiffs Richard Davis et al.'s Second Set of Requests for Production of Documents to Defendant Corrections Corporation] (Luria, April) (Entered: 02/02/2012)
64 CERTIFICATE OF SERVICE by Corrections Corporation of America [re Defendant Corrections Corporation of America's Answers to Plaintiff Richard Davis' Second Set of Interrogatories to Defendant Corrections Corporation of America] (Luria, April) (Entered: 02/02/2012)
65 CERTIFICATE OF SERVICE by Corrections Corporation of America [re Defendant CCA's Response to Plaintiff Richard Davis' First Set of Interrogatories to Defendant Corrections Corporation of America (dated December 19, 2011)] (Luria, April) (Entered: 02/02/2012)
66 MOTION to Compel Class Certification Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Certificate of Conferring in Good Faith, # 17 Certificate of Service)(Manley, Sharla) Modified on 3/23/2012 to add "DISCOVERY" to description (afc). (Entered: 03/22/2012)
67 NOTICE of Hearing on Motion 66 MOTION MOTION to Compel Class Certification : Motion Hearing set for 7/6/2012 at 02:00 PM before JUDGE LESLIE E. KOBAYASHI. (wnn, )
CERTIFICATE OF SERVICE
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. (Entered: 03/23/2012)
68 EO: Plaintiffs' Motion to Compel Class Certification set for 7/6/2012 at 02:00 PM before Judge Leslie E. Kobayashi is Vacated. Motion is actually a Motion to Compel

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 15 of 98

03/28/2012 04/10/2012 04/17/2012 04/24/2012 04/26/2012 04/26/2012 04/26/2012

Discovery, which will be referred to Magistrate Judge Barry M. Kurren. (JUDGE LESLIE E. KOBAYASHI)(wnn, )
CERTIFICATE OF SERVICE
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 (Entered: 03/23/2012)
69 NOTICE of Hearing on 66 Plaintiffs' Motion To Compel Class Certification set for 5/1/2012 @ 10:00 AM before Judge BARRY M. KURREN. (tyk)
CERTIFICATE OF SERVICE
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. (Entered: 03/28/2012)
70 MEMORANDUM in Opposition [Defendants' Combined Response to Plaintiffs' Motion to Compel Class Certification and CROSS−MOTION for Protective Order] re 66 MOTION to Compel Class Certification Discovery filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Declaration Warden Thomas, # 2 Declaration Warden Griego, # 3 Declaration April Luria, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit B−1, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Declaration Kimoto, # 12 Declaration Valenzuela, # 13 Certificate of Service)(Luria, April) Docket text modified on 4/11/2012 to clarify title of document. (afc). (Entered: 04/10/2012)
71 REPLY re 66 MOTION MOTION to Compel Class Certification Discovery and Opposition to Defendants' Cross−Motion for Protective Order filed by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Declaration Supplemental Declaration of Sharla Manley, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17, # 6 Certificate of Word Count, # 7 Certificate of Service)(Manley, Sharla) (Entered: 04/17/2012)
72 MOTION to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Certificate of Conferring in Good Faith, # 20 Certificate of Service)(Manley, Sharla) (Entered: 04/24/2012)
73 NOTICE of Hearing on 72 Plaintiff Richard Davis' Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense. Motion Hearing set for 5/31/2012 at 2:00PM before Judge BARRY M. KURREN. (kur2)
CERTIFICATE OF SERVICE
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. (Entered: 04/26/2012)
74 Declaration re 70 Memorandum in Opposition to Motion,,, [Submission of Original Declarations of Thomas, Griego, Kimoto and Valenzuela to (Doc. 70) Defendants' Combined Response to Plaintiffs' Motion to Compel Class Certification (Doc. 66) and Cross−Motion for Protective Order (Filed April 10, 2012)]. (Attachments: # 1 Declaration Thomas, # 2 Declaration Griego, # 3 Declaration Kimoto, # 4 Declaration Valenzuela, # 5 Certificate of Service)(Luria, April) (Entered: 04/26/2012)
75 MOTION for Preliminary Injunction Andrew B. Sprenger appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Richard Kapela Davis, # 3 Declaration of James Kane III, # 4 Declaration of Ty Preston Kawika Tengan, # 5 Declaration of Counsel, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Certificate of Word Count, # 11 Certificate of Service)(Sprenger, Andrew) (Entered: 04/26/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 16 of 98

04/27/2012 04/30/2012

ADVISORY ENTRY. The entry docket number 75 MOTION for Preliminary Injunction filed by Richard Kapela Davis was filed incorrectly in this case. Exhibits should be submitted as separate attachments and not as one pdf within the declaration. No further action necessary. (gab, ) (Entered: 04/27/2012)
76 NOTICE of Hearing on Motion 75 MOTION for Preliminary Injunction : Motion Hearing set for 8/20/2012 at 11:15 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

04/30/2012 04/30/2012

CERTIFICATE OF SERVICE
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. (Entered: 04/30/2012)
77 MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery] April Luria appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 04/30/2012)
78 NOTICE of Hearing on Motion 77 MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery] MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery] : Motion Hearing set for 8/20/2012 at 11:15 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

04/30/2012

CERTIFICATE OF SERVICE
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. (Entered: 04/30/2012)
79 EO: 75 MOTION for Preliminary Injunction, 77 MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery] MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery]. Motion Hearing set for 8/20/2012 at 11:15 AM is moved to 8/27/2012 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

05/01/2012

CERTIFICATE OF SERVICE
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 (Entered: 04/30/2012)
80 EP: Hearing on 66 Plaintiffs' Motion To Compel Class Certification held. This Motion is GRANTED IN PART and DENIED IN PART. Plaintiffs' request for fees and costs is denied. Sharla Ann Manley to prepare and submit an order on this Motion. (C7F 9:58−10:19am.) (Judge BARRY M. KURREN)(kur2)

05/08/2012 05/09/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/01/2012)
81 Ex Parte MOTION for Extension of Time to File Response/Reply as to 72 MOTION to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense April Luria appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata (Attachments: # 1 Declaration of April Luria, # 2 Certificate of Service)(Luria, April) (Entered: 05/08/2012)
82 MEMORANDUM in Opposition to Defendants' Ex Parte Motion for Relief in the Form of an Extension of Time to Respond to Plaintiffs' Motion to Compel E−Discovery filed by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Service)(Sprenger, Andrew) (Entered: 05/09/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 17 of 98

05/09/2012

83 EO: The Court GRANTS 81 Defendants' Ex Parte Motion for Relief in the Form of an Extension of Time to Respond to Plaintiffs' Motion to Compel E−Discovery. Defendants' opposition memorandum to Plaintiffs' Motion to Compel E−Discovery is due 5/14/2012; Plaintiffs' reply memorandum is due 5/21/2012. (Judge BARRY M. KURREN)(kur2)

05/10/2012 05/11/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/09/2012)
84 Ex Parte MOTION to Shorten Time to hear Motion re 75 MOTION for Preliminary Injunction Andrew B. Sprenger appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Declaration of Andrew B. Sprenger, # 2 Exhibit 1, # 3 Certificate of Service)(Sprenger, Andrew) (Entered: 05/10/2012)
85 ORDER GRANTING IN PART PLAINTIFFS' 66 MOTION TO COMPEL CLASS CERTIFICATION DISCOVERY AND GRANTING IN PART DEFENDANTS' CROSS MOTION FOR A PROTECTIVE ORDER. related 80 Order. Follows oral order of 05/01/2012. Signed by Judge BARRY M. KURREN on May 10, 2012. (bbb, )

05/14/2012 05/16/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/11/2012)
86 MEMORANDUM in Opposition re 72 MOTION to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Table of Contents & Authorities, # 2 Memorandum, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Certificate of Service)(Luria, April) (Entered: 05/14/2012)
87 EO: COURT ORDER DENYING PLAINTIFFS EX PARTE MOTION TO ADVANCE THE HEARING DATE FOR PRELIMINARY INJUNCTION−Before the Court is Plaintiffs Richard Kapela Davis and James Kane, IIIs (collectively Plaintiffs) Ex Parte Motion to Advance the Hearing Date for Preliminary Injunction (Ex Parte Motion), filed 5/10/2012. [Dkt. no. 84.] Plaintiffs Motion for Preliminary Injunction, filed 4/26/2012, [dkt. no. 75,] and Defendants Neil Abercrombie, Jodie Maesaka−Hirata, and Corrections Corporation of Americas (collectively Defendants) Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery (Class Motion), filed 4/30/2012, [dkt. no. 77,] are currently set for hearing on 8/27/2012. Plaintiffs seek to advance the hearing on their Motion for Preliminary Injunction. Defendants do not object to advancing the hearing on Plaintiffs Motion for Preliminary Injunction, assuming that the hearing on Defendants Class Motion is also advanced. [Ex Parte Motion, Decl. of Andrew B. Sprenger, Exh. 1.] After consultation with Defendants counsel, Plaintiffs propose the following dates for the hearing on the motions: July 9 or 10, 2012; or August 1, 2, 3, 6, 7 or 8, 2012. [Ex Parte Motion at 2.] In light of court congestion, however, this Court cannot accommodate the parties on those dates. Plaintiffs Ex Parte Motion is therefore DENIED. (JUDGE LESLIE E. KOBAYASHI)(lls, )

05/21/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/16/2012)
88 REPLY re 72 MOTION to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense Plaintiffs' Reply in Support filed by Richard Kapela Davis. (Attachments: # 1 Declaration Supplemental Declaration of Sharla Manley, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19, # 5 Certificate of Word Count, # 6 Certificate of Service)(Manley, Sharla) (Entered: 05/21/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 18 of 98

05/25/2012 05/25/2012

89 MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion,, (re Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery) April Luria appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 05/25/2012)
90 EO: COURT ORDER re 89 MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion, (re Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

05/29/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/26/2012)
91 EO: Regarding the Courts 5/25/2012 Order re: Defendants MOTION for Reconsideration re 90 . Minute Order is Withdrawn, issued inadvertently. Motion is Referred to Magistrate Judge Barry M. Kurren. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

05/29/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/29/2012)
92 EO: Defendant's 89 Motion for Reconsideration will be a non−hearing motion, and briefing will proceed according to the Local Rules. (Judge BARRY M. KURREN)(kur1)

05/31/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/29/2012)
93 EP: Hearing on 72 Plaintiffs' Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense held. A Further Hearing on 72 Plaintiffs' Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense is set for 6/21/2012 at 10:30 a.m. before Judge Barry M. Kurren. By 6/20/2012, counsel shall submit a status report regarding this Motion.(C7F 1:57−2:15pm.) (Judge BARRY M. KURREN)(kur2)

06/08/2012 06/15/2012

CERTIFICATE OF SERVICE
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 (Entered: 05/31/2012)
94 MEMORANDUM in Opposition re 89 MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion,, (re Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery) MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion,, (re Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery) filed by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 06/08/2012)
95 MOTION for Leave to File a Second Amended Complaint Andrew B. Sprenger appearing for Plaintiffs Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Andrew B. Sprenger, # 3 Exhibit A part 1, # 4 Exhibit A part 2, # 5 Certificate of Service)(Sprenger, Andrew) (Entered: 06/15/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 19 of 98

06/18/2012 06/19/2012

96 INITIAL DISCLOSURE by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 06/18/2012)
97 NOTICE of Hearing on 95 Plaintiffs' Motion For Leave To File A Second Amended Complaint set for 7/31/2012 @ 10:30 AM before Judge BARRY M. KURREN. (tyk)

CERTIFICATE OF SERVICE

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. (Entered: 06/19/2012)

06/19/2012

98 Application to Permit Shawn Westrick to Appear Pro Hac Vice. (Attachments: # 1 Declaration of Shawn Westrick, # 2 Consent of Andrew B. Sprenger and Sharla Manley, # 3 Proposed Order Granting Application to Permit Shawn Westrick to Appear Pro Hac Vice, # 4 Certificate of Service)(Sprenger, Andrew) (Entered: 06/19/2012)

06/19/2012

99 NOTICE by Ellington Keawe, Damien Kaahu, Michael Hughes, Richard Kapela Davis, Robert A. Holbron, James Kane, III Notice of Association of Counsel Ellington Keawe, Damien Kaahu, Michael Hughes, Richard Kapela Davis, Robert A. Holbron, James Kane, III. (Attachments: # 1 Certificate of Service)(Sprenger, Andrew) (Entered: 06/19/2012)

06/20/2012 102 Pro Hac Vice Filing fee for atty Shawn Westrick: $ 300.00,receipt number HI004242 re 98 Application, (bbb, ) (Entered: 06/22/2012)

06/21/2012

100 EP: The Court allows Jamie Guzman to appear telephonically at today's hearing, over Plaintiffs' objection.Further Hearing on 72 Plaintiffs' Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information at Its Own Expense held. This Motion is GRANTED IN PART and DENIED IN PART. Sharla Ann Manley to prepare order on this Motion. (C7F 10:32−10:56am.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

06/21/2012

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 (Entered: 06/21/2012)
101 ORDER Granting The Application of Shawn Westrick to Appear Pro Hac Vice 98 . Signed by Judge BARRY M. KURREN on 6/20/2012. (gab, )

CERTIFICATE OF SERVICE

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 (Entered: 06/21/2012)

06/22/2012

103 REPLY to Response to Motion re 89 MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion,, (re Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery) MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion,, (re Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery) filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 06/22/2012)

07/02/2012

104 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Notice of Taking Deposition Upon Oral Examination of Todd Thomas, Warden for Defendant Corrections Corporation of America With Request for Production of Documents; Attachment "A" (Sprenger, Andrew) (Entered: 07/02/2012)

07/02/2012

105 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Notice of Taking Deposition Upon Oral Examination of Ben Griego, Assistant Warden for Defendant Corrections Corporation of America With Request for Production of Documents; Attachment "A" (Sprenger, Andrew) (Entered: 07/02/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 20 of 98

07/02/2012 07/02/2012 07/02/2012 07/02/2012 07/05/2012 07/09/2012

106 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Notice of Taking Deposition Upon Oral Examination of Bruno Stolc, Warden for Defendant Corrections Corporation of America With Request for Production of Documents; Attachment "A" (Sprenger, Andrew) (Entered: 07/02/2012)
107 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Notice of Taking Deposition Upon Oral Examination of Chris Aguirre, Chaplain for Defendant Corrections Corporation of America With Request for Production of Documents; Attachment "A" (Sprenger, Andrew) (Entered: 07/02/2012)
108 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Notice of Subpoena to Testify for Shari Kimoto, Administrator of the State of Hawaii Public Safety Department's Mainland and FDC Branch; and Request to Produce Documents; Exhibit 1 (Sprenger, Andrew) (Entered: 07/02/2012)
109 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Notice of Subpoena to Testify at a Deposition for Kaiana Haili, Instructor/Contractor for State of Hawaii Department of Public Safety's Corrections Education Program Services, Department of Public Safety Mainland/FDC Branch & Request to Produce Documents; Exhibit 1 (Sprenger, Andrew) (Entered: 07/02/2012)
110 MOTION for Leave to File a Supplemental Complaint Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe (Attachments: # 1 Memorandum in Support of Motion, # 2 Declaration of Sharla Manley, # 3 Exhibit A, # 4 Certificate of Service)(Manley, Sharla) (Entered: 07/05/2012)
111 NOTICE of Hearing on 110 Plaintiffs' Motion For Leave To File A Supplemental Complaint set for 7/31/2012 @ 10:30 AM before Judge BARRY M. KURREN. The following briefing schedule is set forth: Opposition shall be filed on or before 7/23/2012; any Reply shall be filed on or before 7/27/2012.(tyk)

CERTIFICATE OF SERVICE

07/10/2012

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. (Entered: 07/09/2012)
112 MEMORANDUM in Opposition re 95 MOTION for Leave to File a Second Amended Complaint filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Declaration of April Luria, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Certificate of Service)(Luria, April) (Entered: 07/10/2012)

07/11/2012 113 EO: Status Conference Re: Evidentiary Issues and Scheduling set for 8/6/2012 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

07/16/2012

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 (Entered: 07/11/2012)
114 CERTIFICATE OF SERVICE by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe re Plaintiffs' Expert Report of Ty Preston Kawika Tengan; Exhibit "A" (Sprenger, Andrew) (Entered: 07/16/2012)

07/17/2012

115 REPLY re 95 MOTION for Leave to File a Second Amended Complaint filed by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Sprenger, Andrew) (Entered: 07/17/2012)

07/23/2012

116 MEMORANDUM in Opposition re 110 MOTION for Leave to File a Supplemental Complaint filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Affidavit Warden Todd Thomas, # 2 Exhibit A, # 3 Affidavit Assistant Warden Ben Griego, # 4 Certificate of Service)(Luria, April) (Entered: 07/23/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 21 of 98

07/24/2012 07/24/2012 07/27/2012
07/30/2012
07/30/2012 07/31/2012

117 Return of Service on Subpoena Shari Kimoto was served on 7/5/2012 (Sprenger, Andrew) (Entered: 07/24/2012)
118 Return of Service on Subpoena Kaiana Haili was served on 7/11/2012 (Sprenger, Andrew) (Entered: 07/24/2012)
119 REPLY re 110 MOTION for Leave to File a Supplemental Complaint filed by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Declaration of Andrew B. Sprenger, # 6 Certificate of Word Count, # 7 Certificate of Service)(Sprenger, Andrew) (Entered: 07/27/2012)
120 RESPONSE in Opposition re 75 MOTION for Preliminary Injunction filed by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Attachments: # 1 Affidavit of Assistant Warden Ben Griego (Pt 1), # 2 Affidavit of Assistant Warden Ben Griego (Pt 2), # 3 Affidavit of Assistant Warden Ben Griego (Pt 3), # 4 Affidavit of Assistant Warden Ben Griego (Pt 4), # 5 Affidavit of Assistant Warden Ben Griego (Pt 5), # 6 Affidavit Warden Bruno Stolc, # 7 Affidavit Carl Richey, # 8 Certificate of Service)(Luria, April) (Entered: 07/30/2012)
121 Application for Admission of Pro Hac Counsel Rachel Love and David Lewis. (Attachments: # 1 Declaration Rachel Love, # 2 Declaration David Lewis, # 3 Declaration April Luria, # 4 Certificate of Service)(Luria, April) Modified on 8/1/2012 (bbb, ). (Entered: 07/30/2012)
122 EP: Hearing on 95 Plaintiffs' Motion For Leave To File A Second Amended Complaint held. This Motion is GRANTED. Andrew B. Sprenger to prepare an Order on this Motion. Hearing on 110 Plaintiffs' Motion For Leave To File A Supplemental Complaint held. This Motion is GRANTED IN PART and DENIED IN PART. Andrew B. Sprenger to prepare an Order on this Motion. Discussions regarding redactions held. The Court DENIES 89 Defendants' Motion for Reconsideration of Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery. Court to prepare order.(C7F 10:29−10:56am.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

07/31/2012

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 (Entered: 07/31/2012)
123 ORDER GRANTING IN PART AND DENYING IN PART 72 MOTION to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense;# 1 Exhibit A−B. Follows oral order of 06/21/2012, 100 Minutes. Signed by Judge BARRY M. KURREN on July 31, 2012. (bbb, )

CERTIFICATE OF SERVICE

07/31/2012 08/02/2012

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 (Entered: 07/31/2012)
124 Pro Hac Vice Filing fee for attys Rachel Love and David Lewis: $ 300.00 each,receipt number HI004693 & HI004694 re 121 Application (bbb, ) (Entered: 08/01/2012)
127 Application for Admission of Pro Hac Counsel (Jamie Guzman). (Attachments: # 1 Declaration Jamie Guzman, # 2 Declaration April Luria, # 3 Certificate of Service)(Luria, April) Modified on 8/3/2012 (bbb, ). (Entered: 08/02/2012)

08/03/2012 08/06/2012

130 Pro Hac Vice Filing fee for atty Jamie Guzman: $ 300.00,receipt number HI004727 re 127 MOTION for Pro Hac Vice (bbb, ) (Entered: 08/07/2012)
128 EP: Status Conference held on 8/6/2012. (Court Reporter Katherine Eismann) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE
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 (Entered: 08/06/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 22 of 98

08/06/2012 08/08/2012

129 MEMORANDUM in Opposition re 77 MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery] MOTION to Certify Class [re Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery] filed by Richard Kapela Davis, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 08/06/2012)
131 STIPULATED PROTOCOL FOR THE SEARCH AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION. Signed by Judge BARRY M. KURREN on August 7, 2012. (bbb, )

CERTIFICATE OF SERVICE

08/08/2012

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 (Entered: 08/08/2012)
132 AGREED PROTECTIVE ORDER. Signed by Judge BARRY M. KURREN on August 7, 2012. (bbb, )

CERTIFICATE OF SERVICE

08/08/2012

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 (Entered: 08/08/2012)
133 EP: Status Conference held.The following dates are VACATED: the Final Pretrial Conference set for 12/4/2012 and the Jury Trial set for 1/15/2013. The Settlement Conference set for 10/18/2012 at 2:00 p.m. remains on the calendar as scheduled.Defendants shall produce e−discovery by 8/31/2012. Plaintiffs shall file their Motion for Class Certification by 10/31/2012.The Court will hold a Scheduling Conference after Plaintiffs' Motion for Class Certification is ruled on. (C7 no record 3:05−3:36pm.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

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 (Entered: 08/09/2012)

08/10/2012

134 CERTIFICATE OF SERVICE by Corrections Corporation of America [re: Defendant Corrections Corporation of Americas Supplemental Responses to Plaintiffs Richard Davis et al.s Second Set of Requests for Production of Documents to Corrections Corporation of America (dated August 10, 2012)] (Luria, April) (Entered: 08/10/2012)

08/13/2012 136 ORDER GRANTING IN PART PLAINTIFFS' 110 MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT. Follows oral 122 order of 07/31/2012.. Signed by Judge BARRY M. KURREN on August 13, 2012. (bbb, )

CERTIFICATE OF SERVICE

08/13/2012

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 (Entered: 08/13/2012)
137 ORDER GRANTING PLAINTIFFS' 95 MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT. Follows oral 122 order of 07/31/2012.. Signed by Judge BARRY M. KURREN on August 13, 2012. (bbb, )

CERTIFICATE OF SERVICE

08/14/2012

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 (Entered: 08/13/2012)
140 EO: COURT ORDER − Regarding hearing on Plaintiffs Motion For Preliminary Injunction and defendants Motion For Rule 23(C)(1)(A) Class Determination 77 and Motion For Interim Stay In Class Discovery 75 (JUDGE LESLIE E. KOBAYASHI)(apg, )

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 23 of 98

CERTIFICATE OF SERVICE

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 (Additional attachment(s) added on 8/15/2012: # 1 Main Document) (apg, ). (Entered: 08/14/2012)

08/14/2012

141 NOTICE by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata re 78 Notice of Hearing on Motion,,, [re Withdrawal of Defendants' Motion for Rule 23(c)(1)(A) Class Determination and Motion for Interim Stay in Class Discovery (77 filed 4/30/12)] Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata. (Luria, April) (Entered: 08/14/2012)

08/14/2012 142 EO: COURT ORDER− Regarding hearing on plaintiffs' Motion for Preliminary Injunction. (JUDGE LESLIE E. KOBAYASHI)(apg, )

CERTIFICATE OF SERVICE

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 (Additional attachment(s) added on 8/15/2012: # 1 Main Document) (apg, ). (Entered: 08/14/2012)

08/20/2012

144 Declaration re 121 MOTION for Pro Hac Vice [re Supplemental Declarations of Rachel Love and David Lewis to Their Application for Admission of Pro Hac Counsel (Filed July 30, 2012)]. (Attachments: # 1 Certificiate of Service)(Luria, April) (Entered: 08/20/2012)

08/22/2012

145 AMENDED COMPLAINT Second Amended Complaint for Damages and for Classwide Declaratory and Injunctive Relief against All Defendants, filed by Ellington Keawe, Damien Kaahu, Michael Hughes, Richard Kapela Davis, Robert A. Holbron, James Kane, III.(Sprenger, Andrew) (Entered: 08/22/2012)

08/22/2012 146 AMENDED COMPLAINT Supplemental Complaint for Damages and for Classwide Declaratory and Injunctive Relief against All Defendants, filed by Tyrone K. N. Galdones. (Attachments: # 1 Summons)(Sprenger, Andrew) (Entered: 08/22/2012)

08/23/2012 149 SUMMONS Issued as to Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (bbb, ) (Entered: 08/23/2012)

08/27/2012

150 EO: COURT ORDER REGARDING HEARING ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION. 75 MOTION for Preliminary Injunction. Re 75 MOTION for Preliminary Injunction. Motion Hearing set for 9/17/2012 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/27/2012

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 (Entered: 08/27/2012)
151 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Jodie Maesaka−Hirata (re Defendants' Second Supplemental Disclosure Statement) (Luria, April) (Entered: 08/27/2012)

08/27/2012

152 ORDER GRANTING THE APPLICATIONS OF RACHEL LOVE AND DAVID LEWIS TO APPEAR PRO HAC VICE re: 121 . Signed by Judge BARRY M. KURREN on 8/24/2012. ~ Rachel Love, Esq. and David Lewis, Esq. (Law firm Struck Wieneke &
Love PLC) ADDED as attorneys pro hac vice for defendants Neil Abercrombie, in his official capacity as the Governor of the State of Hawaii, Jodie Maesaka−Hirata, in her official capacity as Interim Director of the Hawaii Department of Public Safety, and Corrections Corporation of America. Local
Counsel: April Luria, Esq. and law firm of Roeca Luria Hiraoka LLP ~ (afc)

CERTIFICATE OF SERVICE

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 will be served by first
class mail on August 28, 2012. (Entered: 08/27/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 24 of 98

08/27/2012 153 EO: Supplemental Declaration to Defendant's 127 Application for Pro Hac Vice is due on or before 9/10/2012. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

08/31/2012 09/05/2012

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 (Entered: 08/27/2012)
154 REPLY Memorandum in Support of Motion for Preliminary Injunction re: 75 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit E, # 2 Exhibit F, # 3 Declaration of Counsel, # 4 Declaration of Richard Davis, # 5 Declaration of James Kane III, # 6 Declaration of Ty Tengan, # 7 Certificate of Word Count, # 8 Certificate of Service)(Manley, Sharla) Modified on 9/4/2012: (1) Declarations of Richard Davis and James Kane III are unsigned. (2) Motion for Preliminary Injunction: doc. no. 75 . (afc). (Entered: 08/31/2012)
155 STATUS REPORT regarding Status of E−Discovery by Corrections Corporation of America. (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(Love, Rachel) (Entered: 09/05/2012)

09/06/2012 09/06/2012 09/06/2012

156 SUMMONS Returned Executed by Richard Kapela Davis. Corrections Corporation of America served on 9/5/2012, answer due 9/26/2012. (Manley, Sharla) (Entered: 09/06/2012)
157 SUMMONS Returned Executed by Richard Kapela Davis. Neil Abercrombie served on 9/5/2012, answer due 9/26/2012. (Manley, Sharla) (Entered: 09/06/2012)
158 SUMMONS Returned Executed by Richard Kapela Davis. Ted Sakai served on 9/5/2012, answer due 9/26/2012. (Manley, Sharla) (Entered: 09/06/2012)

09/06/2012 09/07/2012

159 Letter from Warren N. Nakamura Re: Real Time Court Reporting (wnn, ) (Entered: 09/06/2012)
160 NOTICE by Ted Sakai, Neil Abercrombie, Corrections Corporation of America re 159 Letter re: List of Parties, Attorneys, Witnesses and Exhibits Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Love, Rachel) (Entered: 09/07/2012)

09/07/2012 161 Declaration re 127 MOTION for Pro Hac Vice (Supplemental Declaration re Jamie Guzman). (Attachments: # 1 Certificate of Service)(Luria, April) (Entered: 09/07/2012)

09/10/2012 09/11/2012

162 MOTION for Sanctions for Failure to Comply with Order Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum in Support of Motion, # 2 Declaration of Sharla Manley, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Certificate of Compliance, # 17 Certificate of Service)(Manley, Sharla) (Entered: 09/10/2012)
163 ORDER GRANTING 127 THE APPLICATION OF JAMIE GUZMAN TO APPEAR PRO HAC VICE. Signed by Judge BARRY M. KURREN on September 10, 2012. (bbb, )

CERTIFICATE OF SERVICE

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 (Entered: 09/11/2012)

09/11/2012

164 Declaration Submission of Original Supplemental Declarations in Support of Motion for Preliminary Injunction. (Attachments: # 1 Declaration Original, # 2 Declaration Original, # 3 Declaration Original, # 4 Certificate of Service)(Manley, Sharla) (Entered: 09/11/2012)

09/12/2012 166 Declaration Supplemental Dec of Sharla Manley in Support of Motion for Preliminary Injunction. (Attachments: # 1 Exhibit G, # 2 Certificate of Service)(Manley, Sharla) (Entered: 09/12/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 25 of 98

09/12/2012 09/17/2012

167 Ex Parte MOTION to Shorten Time to hear Motion for Sanctions Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Declaration of S. Manley, # 2 Certificate of Service)(Manley, Sharla) (Entered: 09/12/2012)
168 EP: Motion Hearing held on 9/17/2012 re 75 MOTION for Preliminary Injunction filed by Richard Kapela Davis. Motion Taken Under Advisement: 75 MOTION for Preliminary Injunction. (Court Reporter Cynthia Fazio) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

09/19/2012

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 (Entered: 09/17/2012)
169 EO: 167 Plaintiffs' Ex Parte Application to Shorten Time for Hearing on Plaintiffs' Motion for Sanctions for Failure to Comply with Order Granting In Part and Denying in Part Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information At Its Own Expense is DENIED. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

09/19/2012

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 (Entered: 09/19/2012)
170 NOTICE of Hearing on 162 Plaintiffs' Motion for Sanctions For Failure to Comply with Order Granting in Part and Denying in Part Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information at Its Own Expense. Motion Hearing set for 10/18/2012 at 2:00PM before Judge BARRY M. KURREN. (kur2)

CERTIFICATE OF SERVICE

09/20/2012

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. (Entered: 09/19/2012)
171 ORDER DENYING DEFENDANTS' 89 MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL CLASS CERTIFICATION DISCOVERY, Follows oral order of 07/31/2012 122 Order on Motion for Reconsideration. Signed by Judge BARRY M. KURREN on September 20, 2012. (bbb, )

CERTIFICATE OF SERVICE

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 (Entered: 09/20/2012)

09/20/2012

172 MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum in Support of Motion, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Declaration of Richard Kapela Davis, # 6 Exhibit to Richard Davis Declaration, # 7 Declaration of Michael Hughes, # 8 Exhibit to Michael Hughes Declaration, # 9 Declaration of Tyrone Galdones, # 10 Exhibit to Tyrone Galdones Declaration, # 11 Certificate of Service)(Manley, Sharla) (Entered: 09/20/2012)

09/21/2012 173 ANSWER to 145 Amended Complaint, (Second) by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Jury Demand)(Love, Rachel) (Entered: 09/21/2012)

09/21/2012 174 ANSWER to 146 Amended Complaint (Supplemental re: Galdones) by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Jury Demand)(Love, Rachel) (Entered: 09/21/2012)

09/24/2012 175 STATUS REPORT (Second Status Report Regarding E−Discovery) by Corrections Corporation of America. (Attachments: # 1 Exhibit No. 1, # 2 Cert. of Service)(Love, Rachel) (Entered: 09/24/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 26 of 98

09/24/2012 176 NOTICE of Hearing on Motion 172 Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court−Ordered Confidential Calls set for 11/8/2012 09:30 AM before Judge BARRY M. KURREN. (sna, )

CERTIFICATE OF SERVICE

09/25/2012 09/26/2012

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. (Entered: 09/24/2012)
177 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Kapela Davis' Amended Notice of Deposition for Shari Kimoto, Administrator of the State of Hawaii Public Safety Department's Mainland and FDC Branch; And Request to Produce Documents; Exhibit 1 (Manley, Sharla) (Entered: 09/25/2012)
178 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiffs' Richard Davis et al.'s Third Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 09/26/2012)

09/26/2012 09/27/2012 09/27/2012

179 CERTIFICATE OF SERVICE by Richard Kapela Davis re Plaintiff Richard Davis' Third Set of Requests for Production of Documents to Defendant Ted Sakai, in his Official Capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 09/26/2012)
180 NOTICE by Ted Sakai, Neil Abercrombie, Corrections Corporation of America of Service of Defendants' Third Supplemental Disclosure Statement Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Guzman, Jamie) (Entered: 09/27/2012)
181 RESPONSE in Opposition re 162 MOTION for Sanctions for Failure to Comply with Order filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Exhibit Exhibits 1 − 6)(Guzman, Jamie) (Entered: 09/27/2012)

09/28/2012

ADVISORY ENTRY: Regarding the entry docket number 181 Response in Opposition to Motion filed by Ted Sakai, Neil Abercrombie, Corrections Corporation of America. For further pleadings, all counsel are cautioned to file documents as separate attachments, pursuant to LR100.2.6. It is advised that all counsel refer to the Amended General Order Adopting Electronic Case Filing Procedures & the US DISTRICT COURT DISTRICT OF HAWAII CM/ECF Guide. NO FURTHER ACTION REQUEST ON DOCKET ENTRY #181. (bbb, ) (Entered: 09/28/2012)

09/30/2012

182 ORDER DENYING PLAINTIFF RICHARD KAPELA DAVIS'S AND PLAINTIFF JAMES KANE III'S MOTION FOR PRELIMINARY INJUNCTION re: 75 . Signed by JUDGE LESLIE E. KOBAYASHI on 9/30/2012. [Order follows hearing held 9/17/2012. Minutes: 168 ] (afc)

CERTIFICATE OF SERVICE

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 (Entered: 10/01/2012)

10/02/2012

183 NOTICE of Appearance by Leinaala L. Ley on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Service)(Ley, Leinaala) (Entered: 10/02/2012)

10/02/2012 184 Return of Service on Subpoena Shari Kimoto was served on 9/27/2012 (Manley, Sharla) (Entered: 10/02/2012)

10/04/2012

185 REPLY re 162 MOTION for Sanctions for Failure to Comply with Order Reply Memorandum in Support of Plaintiffs' Motion for Sanctions filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 10/04/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 27 of 98

10/08/2012 10/12/2012

186 NOTICE by Ted Sakai, Neil Abercrombie, Corrections Corporation of America Certificate of Service re Corrections Corporation of America's 2nd Supplemental Responses to Plaintiffs' 2nd Set of Requests for Production Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Guzman, Jamie) (Entered: 10/08/2012)
187 EO: At the request of the parties, the Settlement Conference set for 10/18/2012 is vacated. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

10/16/2012

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 (Entered: 10/12/2012)
190 TRANSCRIPT of Proceedings (PLTFFS' M/PREL INJUNC) held on 9/17/12 − before Judge LESLIE E. KOBAYASHI. Court Reporter Cynthia Fazio, Telephone number 808.541.2063. Transcript may be viewed at the court public terminal or ordered through the Court Reporter before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a),FRCrP 49.1(a) and FRBP 9037(a) Redaction Request due 11/5/2012. Redacted Transcript Deadline set for 11/13/2012. Release of Transcript Restriction set for 1/11/2013. (75 pp.) (cf@hid.uscourts.gov) (Entered: 10/16/2012)

10/16/2012

191 MOTION for Leave to File Brief of Amicus Curiae ACLU of Hawaii Foundation in Support of Plaintiffs' Motion for Confidential Telephone Calls Daniel M. Gluck appearing for Amicus American Civil Liberties Union of Hawaii Foundation (Attachments: # 1 Memorandum in Support of Motion for Leave to File Amicus Brief, # 2 Memorandum Proposed Brief of Amicus ACLU of Hawaii Foundation, # 3 Declaration of Daniel M. Gluck, # 4 Exhibit 1, # 5 Certificate of Service)(Gluck, Daniel) (Entered: 10/16/2012)

10/16/2012

192 CERTIFICATE OF SERVICE by American Civil Liberties Union of Hawaii Foundation re 191 MOTION for Leave to File Brief of Amicus Curiae ACLU of Hawaii Foundation in Support of Plaintiffs' Motion for Confidential Telephone Calls −− Revised to Reflect Service by U.S. Mail on Attorneys Westrick and Lewis (Gluck, Daniel) (Entered: 10/16/2012)

10/17/2012 193 STATUS REPORT Third Status Report by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Exhibit Exhibit 1, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 10/17/2012)

10/18/2012

194 MEMORANDUM in Opposition re 172 MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Exhibit Affidavit of Warden Thomas, # 2 Exhibit Affidavit of S. Williamson, # 3 Cert. of Service)(Love, Rachel) (Entered: 10/18/2012)

10/18/2012

195 EP: Hearing on 162 Plaintiffs' Motion for Sanctions For Failure to Comply with Order Granting in Part and Denying in Part Motion to Compel Defendant CCA to Produce Its Electronically−Stored Information at Its Own Expense held. This Motion is DENIED without prejudice. The deadline for Plaintiffs to file their Motion for Class Certification, which was set for 10/31/2012, is VACATED. This deadline will be rescheduled at the Status Conference set for 11/8/2012 at 9:30 a.m. before Judge Barry M. Kurren.A Status Conference is set for 11/8/2012 at 9:30 a.m. before Judge Barry M. Kurren. By 11/7/2012, counsel shall submit a letter to Judge Barry M. Kurren discussing the issues to be discussed at this Status Conference. (C7F 2:02−2:52pm.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE
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 (Entered: 10/18/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 28 of 98

10/19/2012 10/22/2012

196 AMENDED MEMORANDUM in Opposition re 172 MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls [FIRST AMENDED OPPOSITION] filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Exhibit Affidavit of Warden Thomas, # 2 Exhibit Affidavit of S. Williamson, # 3 Amended Cert. of Service)(Love, Rachel) Modified on 10/22/2012 (afc) (Entered: 10/19/2012)
197 EO: The 191 Motion For Leave to File Amicus Brief is GRANTED. Defendants may file a response no later than 11/2/2012. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

10/22/2012 10/24/2012

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 (Entered: 10/22/2012)
198 MEMORANDUM re 172 MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls −− Brief of Amicus Curiae in Support of Plaintiffs' Motion filed by American Civil Liberties Union of Hawaii Foundation. (Attachments: # 1 Declaration of Daniel M. Gluck, # 2 Exhibit 1 to Declaration of Daniel M. Gluck, # 3 Certificate of Service)(Gluck, Daniel) (Entered: 10/22/2012)
199 EO: 172 Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court−Ordered Confidential Calls; and Status Conference set for 11/8/2012 are continued to 11/15/2012 @ 10:30 AM before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

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 (Entered: 10/24/2012)

10/25/2012

200 EO: "MINUTE ORDER" − It appears that Plaintiff Tyrone K. Galdones is pursuing two identical actions in this court, one represented by counsel, 1:11−cv−00144 LEK−BMK, and one proceeding pro se, 1:12−cv−00551 LEK−RLP. A Status Conference is set for Thursday, November 15, 2012 @ 9:30 a.m., before Magistrate Judge Barry M. Kurren, to discuss this issue and Defendant DPS's Motion to Stay, 1:12−cv−00551, ECF #9, and Plaintiff Galdones's Motion for Remand, 1:12−cv−00551, ECF #10. Defendants to Arrange for Plaintiff Galdones's Participation by Telephone.(Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

10/26/2012

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 (Entered: 10/25/2012)
201 NOTICE by Ted Sakai, Neil Abercrombie, Corrections Corporation of America Certificate of Service Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Guzman, Jamie) (Entered: 10/26/2012)

10/29/2012

ADVISORY ENTRY (document need not be re−filed) re: Filing−event of "Notice" selected for docket entry number 201 : Certificate of Service filed on behalf of defendants. For the filing party's future reference, a helpful tool in determining the correct filing event is the "SEARCH" option located on the CM/ECF tool bar. A text window will appear wherein the filer may type in a word that describes the filing. For example, by using the SEARCH option, a pop−up window will allow the user to type in a word (e.g. "certificate") and search for appropriate filing events that the filer may

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 29 of 98

10/29/2012 10/30/2012 10/31/2012
11/01/2012

choose from. In this instance, the Certificate of Service filing category is located under Civil Event "Service of Process." (afc) (Entered: 10/29/2012)
202 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai [Re: Defendant Ted Sakai's Responses to Plaintiffs' Third Requests for Production of Documents and CCA's Responses to Plaintiffs' Third Requests for Production of Documents (Guzman, Jamie) (Entered: 10/29/2012)
203 MOTION for Extension of Time to File Answer re 198 Memorandum, (Amicus Brief of ACLU of Hawai), April Luria appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Luria, April) Modified on 10/31/2012: duplicate text deleted. (afc) (Entered: 10/30/2012)
204 MOTION for Extension of Time to File Response/Reply as to 172 MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Counsel, # 3 Certificate of Service)(Manley, Sharla) (Entered: 10/31/2012)
205 EO: Defendants' 203 Motion for Extension of Time and Plaintiffs' 204 Motion for Extension of Time are GRANTED. Defendants' response to the amicus brief and Plaintiffs' reply brief are now due on 11/5/2012. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

11/05/2012

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 (Entered: 11/01/2012)
206 RESPONSE re 198 Memorandum,,, (Defendants' Response to 198 Amicus Brief of ACLU of Hawaii) filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Luria, April) (Entered: 11/05/2012)

11/05/2012

207 REPLY re 172 MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls MOTION for Hearing on Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court Ordered Confidential Calls filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Declaration of John Rapp, # 2 Exhibit 3, # 3 Certificate of Service)(Ley, Leinaala) (Entered: 11/05/2012)

11/06/2012

208 EO: Status Conference set for 11/15/2012 @ 9:30 AM is moved to 10:30 AM the same day before Judge BARRY M. KURREN. DEFENDANTS TO ARRANGE FOR PLAINTIFF GALDONES' PARTICIPATION BY TELEPHONE. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

11/13/2012

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 (Entered: 11/06/2012)
209 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai re Corrections Corporation of America's Third Supplemental Responses to Plaintiffs Richard Davis, et al.'s Second Set of Requests for Production (Guzman, Jamie) (Entered: 11/13/2012)

11/14/2012 210 CERTIFICATE OF SERVICE by Richard Kapela Davis re Third Set of Interrogatories to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 11/14/2012)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 30 of 98

11/15/2012

211 EP: Hearing on 172 Plaintiffs' Motion for an Order Under Federal Rule of Civil Procedure 23(D) and the All Writs Act for Court−Ordered Confidential Calls held. This Motion is DENIED without prejudice. Status Conference held. Court's inclination as to the location of depositions of Arizona−based witnesses should be conducted in Arizona. Parties can file formal motions on this matter. As to production of Class Discovery, Jamie Guzman stated that documents have been sent out and should be received by Plaintiffs sometime this week. Court ordered that privilege and relevant detailed logs be produced to Plaintiffs by 12/6/2012. Plaintiffs revisited their motion for sanctions as to outstanding discovery issues. Court stated that sanctions are not appropriate at this time. Court stands by its earlier ruling. A Further Status Conference is set for 12/13/2012 at 11:00 a.m. before Judge Barry M. Kurren. (FTR C7; 10:52−11:12) (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

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 (Entered: 11/15/2012)

11/16/2012 212 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai of CCA's 1st Supplemental Responses to Plaintiffs' 3rd Set of Requests for Production of Documents (Guzman, Jamie) (Entered: 11/16/2012)

12/06/2012 213 CERTIFICATE OF SERVICE by Richard Kapela Davis re Fourth Set of Requests for Production of Documents to Defendant Ted Sakai, in his Official Capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 12/06/2012)

12/07/2012

CORRECTIVE ENTRY. The entry docket number 213 Certificate of Service filed by Richard
Kapela Davis was filed incorrectly in this case. The filing party is advised that the pdf image affixed to
this entry is incomplete. The filing party should resubmit this entry in its entirety. (emt, ) (Entered: 12/07/2012)

12/07/2012 214 CERTIFICATE OF SERVICE by Richard Kapela Davis re Fourth Set of Requests for Production of Documents to Defendant Ted Sakai, in his Official Capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 12/07/2012)

12/11/2012 215 CERTIFICATE OF SERVICE by Corrections Corporation of America of Responses to Richard Davis' Third Set of Interrogatories (Guzman, Jamie) (Entered: 12/11/2012)

12/13/2012 216 EO: Further Status Conference set for 12/13/2012 is continued to 12/20/2012 @ 10:00 AM before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

12/20/2012

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 (Entered: 12/13/2012)
217 EP: Further Status Conference held. Parties ordered to meet and confer within one week upon April Luria's return. Once the date of the meeting with counsel has been set, Sharla Manley to contact the court to set a Further Status Conference before Judge Barry M. Kurren. (C7 No Record; 10:05−10:15) (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

12/21/2012 12/27/2012

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 (Entered: 12/20/2012)
218 CERTIFICATE OF SERVICE by Ted Sakai of Responses to Plaintiff Richard Davis' Fourth Set of Requests for Production of Documents (Guzman, Jamie) (Entered: 12/21/2012)
219 EO: Further Status Conference set for 1/18/2013 @ 02:00 PM before Judge BARRY M. KURREN. The Court will contact James Kawahito and Jamie Guzman via phone at the time of this conference. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 31 of 98

12/31/2012 01/02/2013

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 (Entered: 12/27/2012)
220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service Rachel Love appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum Points and Authorities, # 2 Declaration of Rachel Love, # 3 Exhibit A − Signed Affidavit of Juan Valenzuela + Supporting Attachments A − R, # 4 Exhibit B − Signed Affidavit of Carl Richey + Supporting Attachments A − E, # 5 Affidavit Certificate of Service)(Love, Rachel) (Entered: 12/31/2012)
221 NOTICE of Hearing on Motion 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust: Motion Hearing set for 3/25/2013 at 02:00 PM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

01/18/2013

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. (Entered: 01/02/2013)
222 EP: Further Status Conference held. Plaintiff is allowed to inspect documents withheld on the basis of relevance. Sharla Ann Manley to prepare Order. (C7 No Record; 2:00 − 2:15) (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

01/28/2013

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 (Entered: 01/18/2013)
223 EO: A Status Conference Re Request for Clarification is set for 2/4/2013 at 10:30 AM before Judge BARRY M. KURREN. Plaintiffs' counsel may file an optional letter in response to Defendant's letter no later than 1/31/2013. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

01/30/2013

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 (Entered: 01/28/2013)
224 EO: At the request of the parties, the Status Conference Re Clarification set for 2/4/2013 is CONTINUED to 02:30 PM on the same day before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

02/04/2013

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 (Entered: 01/30/2013)
225 EO: The Status Conference Re Request for Clarification, which set for 2/4/2013 at 2:30PM is CONTINUED to 2/7/2013 at 10:00 AM before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

02/06/2013

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 (Entered: 02/04/2013)
226 CERTIFICATE OF SERVICE by Richard Kapela Davis re Second Set of Requests for Admissions to Defendant Corrections Corporation of America; Exhibits "A"−"E" (Manley, Sharla) (Entered: 02/06/2013)

02/06/2013 227 CERTIFICATE OF SERVICE by Richard Kapela Davis re Fourth Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 02/06/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 32 of 98

02/07/2013

228 EP: Status Conference Re Request for Clarification held. Sharla Manley to identify on the privilege log what other documents to be reviewed for her eyes only. Unless there is a security issue, Defendants are required to produce the documents identified by Ms. Manley for inspection. If there is a disagreement between the parties, Court will set a status conference. If Ms. Manley cannot discern what the document is from the privilege log then counsel is to contact Ms. Guzman to get a further description of the nature of the document. Further Status Conference is set for 3/18/2013 @ 10:00 a.m. before Judge Barry M. Kurren. Additional briefing to be submitted to the court by 3/15/2013. Ms. Manley to prepared Amended Order. (FTR C7; 10:02−10:22) (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

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 (Entered: 02/07/2013)

02/15/2013 229 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai [Defendant CCA's Second Supp. Response to Plaintiffs' Third Request for Production of Documents] (Guzman, Jamie) (Entered: 02/15/2013)

02/15/2013 230 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai [Defendant Sakai's First Supp. Response to Plaintiff Davis' Third Request for Production of Documents] (Guzman, Jamie) (Entered: 02/15/2013)

02/15/2013 231 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai [Defendant CCA's Fourth Supp. Response to Plaintiffs' Second Request for Production of Documents] (Guzman, Jamie) (Entered: 02/15/2013)

02/19/2013 232 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant CCA's Response to Plaintiffs' Fourth Set of Request for Production of Documents (Guzman, Jamie) (Entered: 02/19/2013)

02/28/2013 233 Return of Service on Subpoena Shari Kimoto was served on 2/28/2013 (Manley, Sharla) (Entered: 02/28/2013)

02/28/2013

234 CERTIFICATE OF SERVICE by Richard Kapela Davis re Second Amended Notice of Deposition for Shari Kimoto, Administrator of the State of Hawaii Public Safety Department's Mainland and FDC Branch, and Request to Produce Documents; Exhibit 1 (Manley, Sharla) (Entered: 02/28/2013)

03/04/2013

235 MEMORANDUM in Opposition re 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service Plaintiffs' Opposition to Defendants' Motion to Dismiss for Failure to Exhaust filed by Richard Kapela Davis. (Attachments: # 1 Declaration of Richard Davis, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Declaration of Michael Hughes, # 13 Exhibit 1, # 14 Exhibit 2, # 15 Exhibit 3, # 16 Declaration of James Kane, # 17 Exhibit 1, # 18 Exhibit 2, # 19 Exhibit 3, # 20 Exhibit 4, # 21 Exhibit 5, # 22 Exhibit 6, # 23 Exhibit 7, # 24 Declaration of Ellington Keawe, # 25 Exhibit 1, # 26 Exhibit 2, # 27 Exhibit 3, # 28 Exhibit 4, # 29 Exhibit 5, # 30 Exhibit 6, # 31 Exhibit 7, # 32 Exhibit 8, # 33 Exhibit 9, # 34 Declaration of Sharla Manley, # 35 Exhibit A, # 36 Exhibit B, # 37 Exhibit C, # 38 Exhibit D, # 39 Exhibit E, # 40 Exhibit F, # 41 Exhibit G, # 42 Exhibit H, # 43 Exhibit I, # 44 Exhibit J, # 45 Exhibit K, # 46 Exhibit L, # 47 Exhibit M, # 48 Exhibit N, # 49 Exhibit O, # 50 Exhibit P, # 51 Exhibit Q, # 52 Evidentiary Objections, # 53 Certificate of Word Count, # 54 Certificate of Service)(Manley, Sharla) (Entered: 03/04/2013)

03/04/2013 236 Application for Admission of Pro Hac Vice Counsel (re Daniel P. Struck). (Attachments: # 1 Declaration of April Luria, # 2 Declaration of Daniel P. Struck, # 3 Certificate of Service)(Luria, April) (Entered: 03/04/2013)

03/05/2013 237 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant Sakai's Second Supplemental Reponse to Plaintiffs' Third Request for Production of Documents (Guzman, Jamie) (Entered: 03/05/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 33 of 98

03/05/2013 03/05/2013 03/06/2013
03/06/2013 03/06/2013

238 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant Sakai's First Supplemental Response to Plaintiffs' Fourth Request for Production (Guzman, Jamie) (Entered: 03/05/2013)
245 Pro Hac Vice Filing fee: $ 300.00, receipt number HI007188 re 236 Pro Hac Vice Application of Daniel P. Struck, Esq. (afc) (Entered: 03/07/2013)
239 MOTION for Extension of Time to File Response/Reply as to 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service Jamie Guzman appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Attachments: # 1 Declaration of Jamie Guzman, # 2 Exhibit A, # 3 Certificate of Service)(Guzman, Jamie) (Entered: 03/06/2013)
240 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant CCA's Responses to Plaintiffs' Second Requests for Admission (Guzman, Jamie) (Entered: 03/06/2013)
241 ORDER GRANTING DEFENDANT'S APPLICATION FOR ADMISSION OF PRO HAC VICE COUNSEL re 236 . Signed by JUDGE BARRY M. KURREN on 3/5/2013 ~ Daniel P. Struck, Esq. (Law firm Struck Wieneke & Love P.L.C) ADDED as attorney pro
hac vice for defendants Neil Abercrombie, in his official capacity as the Governor of the State of Hawaii; Ted Sakai, in his official capacity as Director of the Hawaii Department of Public Safety; and Corrections Corporation of America. Local Counsel: April Luria, Esq. (Law firm of Roeca Luria
Hiraoka LLP) ~ (afc)

CERTIFICATE OF SERVICE

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 (Entered: 03/06/2013)

03/06/2013

242 OBJECTION Plaintiffs' Opposition to Defendants' Application for Admission of Daniel P. Struck as Pro Hac Vice filed by Richard Kapela Davis. (Attachments: # 1 Certificate of Service)(Sprenger, Andrew) Modified on 3/7/2013: PHV application: doc no. 236 . Order granting PHV: doc no. 241 . (afc) (Entered: 03/06/2013)

03/06/2013

243 MEMORANDUM in Opposition re 239 MOTION for Extension of Time to File Response/Reply as to 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service Plaintiffs' Opposition to Defendants' Motion for an Extension of Time to File Reply in Support of Motion to Dismiss for Failure to Exhaust filed by Richard Kapela Davis. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 03/06/2013)

03/07/2013

244 REPLY to Response to Motion re 239 MOTION for Extension of Time to File Response/Reply as to 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service Defendants Reply Re: Motion for Extension of Time to File Reply in Support of Motion to Dismiss for Failure to Exhaust; Certificate of Service filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Service)(Guzman, Jamie) (Entered: 03/07/2013)

03/11/2013 246 EO: COURT'S ORDER Granting 239 Motion for Extension of Time to File Response/Reply. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

03/11/2013

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 (Entered: 03/11/2013)
247 MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation of Witnesses Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum in Support of Motion, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Declaration of Richard Davis, # 11 Declaration of Tyrone Galdones [Unsigned], # 12 Exhibit 1, # 13 Exhibit 2, # 14 Exhibit 3, # 15

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 34 of 98

03/13/2013 03/13/2013

Exhibit 4, # 16 Exhibit 5, # 17 Declaration of Michael Hughes, # 18 Declaration of Damien Kaahu, # 19 Declaration of James Mundon, # 20 Exhibit 1, # 21 Exhibit 2, # 22 Exhibit 3, # 23 Declaration of Darwin Ramirez, # 24 Exhibit 1, # 25 Exhibit 2, # 26 Declaration of James Trueman, # 27 Declaration of Arthur Vinhaca, # 28 Certificate of Service)(Manley, Sharla) Modified on 3/12/2013: Declaration of Tyrone Galdones is not signed. (afc) (Entered: 03/11/2013)
248 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendants' Fourth Supplemental Disclosure Statement (Guzman, Jamie) (Entered: 03/13/2013)
249 NOTICE of Hearing on 247 Plaintiffs' Motion For A Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation Of Witnesses set for 3/18/2013 @ 10:00 AM before Judge BARRY M. KURREN. The following briefing schedule is set forth: Opposition shall be filed on or before 3/15/2013. Arguments in reply may be made at the hearing.(tyk)

CERTIFICATE OF SERVICE

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. (Entered: 03/13/2013)

03/14/2013

250 MOTION to Continue Hearing on Plaintiffs' Motion for Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation of Witnesses (Doc. 247) and for Extension of Time to File Opposition to Plaintiffs' Motion − Expedited Ruling Requested Jamie Guzman appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 03/14/2013)

03/14/2013

251 EO: The Court GRANTS 250 Defendants' Motion For A Continuance Of Hearing On Plaintiffs' Motion For A Protective Order prohibiting Retaliation Against Plaintiffs And Intimidation Of Witnesses And For Extension Of Time To File Opposition To Plaintiffs' Motion. 247 Plaintiffs' Motion For A Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation Of Witnesses; and Status Conference are continued from 3/18/2013 to 4/18/2013 @ 9:30 AM before Judge BARRY M. KURREN. Parties are instructed to follow local rules of practice for the United States District Court for the District of Hawaii for briefing schedule. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

03/15/2013

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 (Entered: 03/14/2013)
252 CERTIFICATE OF SERVICE by Richard Kapela Davis re Notice of Taking Deposition Upon Oral Examination of Charles Miller, Former Saguaro Correctional Center Chaplain for Defendant Corrections Corporation of America; Request for Production of Documents (Manley, Sharla) (Entered: 03/15/2013)

03/15/2013

253 CERTIFICATE OF SERVICE by Richard Kapela Davis re Notice of Taking Deposition Upon Oral Examination of Bruno Stolc, Warden for Defendant Corrections Corporation of America; Request for Production of Documents (Manley, Sharla) (Entered: 03/15/2013)

03/15/2013

254 CERTIFICATE OF SERVICE by Richard Kapela Davis re Notice of Taking Deposition Upon Oral Examination of Todd Thomas, Warden for Defendant Corrections Corporation of America; Request for Production of Documents (Manley, Sharla) (Entered: 03/15/2013)

03/18/2013

255 MOTION for Leave to File Excess Pages /Exceed Word Limit on Reply in Support of Motion to Dismiss for Failure to Exhaust Jamie Guzman appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Attachments: # 1 Certificate of Service)(Guzman, Jamie) (Entered: 03/18/2013)

03/18/2013 256 REPLY re 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love;

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 35 of 98

03/18/2013

Exhibits A B; Certificate of Service filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration of Jamie Guzman, # 3 Exhibit A, # 4 Declaration of Mainland Branch Administrator Kimoto, # 5 Certificate of Word Count, # 6 Defendants' Evidentiary Objections and Response to Plaintiffs' Objections, # 7 Certificate of Service)(Guzman, Jamie) (Entered: 03/18/2013)
257 EO: COURT'S ORDER Granting 255 Motion for Leave to File Excess Pages. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

03/18/2013

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 (Entered: 03/18/2013)
258 EO: Defendants' Attorney Jamie Guzman's Letter Request to participate by telephone for the hearing set for 3/25/2013 at 02:00 PM is Granted and terminated.Courtroom Manager will be contacting Ms. Guzman from the Courtroom at 02:00 PM Hawaii time. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

03/19/2013

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 (Entered: 03/18/2013)
259 CERTIFICATE OF SERVICE by Richard Kapela Davis re Fifth Set of Requests for Production of Documents to Defendant Ted Sakai, in his Official Capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 03/19/2013)

03/19/2013 260 CERTIFICATE OF SERVICE by Richard Kapela Davis re Fifth Set of Requests for Production of Documents to Defendant Corrections Corporation of America; Exhibit 1 (Manley, Sharla) (Entered: 03/19/2013)

03/21/2013

261 SUPPLEMENT re 256 Reply,, filed by Ted Sakai, Neil Abercrombie, Corrections Corporation of America, 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service filed by Ted Sakai, Neil Abercrombie, Corrections Corporation of America by Neil Abercrombie, Corrections Corporation of America, Ted Sakai Defendants Supplemental Citation of Legal Authority. (Attachments: # 1 Supplement Citation of Legal Authority, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 03/21/2013)

03/22/2013 03/22/2013

262 Scheduling Conference Statement ~ Plaintiffs' Request for an Expedited Scheduling of a Mandatory Settlement Conference ~ (Attachments: # 1 Declaration of Andrew B. Sprenger, # 2 Certificate of Service)(Sprenger, Andrew) Filing event modified on 3/25/2013 from "Scheduling Conference Statement" to "Motion for Settlement" (afc) (Entered: 03/22/2013)
263 Return of Service on Subpoena Kaiana Haili was served on 3−21−2013 (Sprenger, Andrew) (Entered: 03/22/2013)

03/22/2013 264 CERTIFICATE OF SERVICE by Richard Kapela Davis re Second Amended Notice of Deposition for Ka'iana Haili, Spiritual Advisor and Cultural Consultant; Exhibit 1 (Manley, Sharla) (Entered: 03/22/2013)

03/25/2013

265 EP: Motion Hearing held on 3/25/2013 re 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust. Motion Taken Under Advisement: 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust. (Court Reporter Gloria Bediamol.) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

03/27/2013

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 (Entered: 03/25/2013)
266 Declaration re 247 MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation of Witnesses Plaintiffs' Submission of Original Declaration

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 36 of 98

03/27/2013

in Support of Plaintiffs' Motion for a Protective Order. (Attachments: # 1 Declaration of Tyrone Galdones, # 2 Certificate of Service)(Manley, Sharla) (Entered: 03/27/2013)
267 EO: Plaintiff's 262 Request for an Expedited Scheduling of a Mandatory Settlement Conference is GRANTED. A Settlement Conference is set for 4/18/2013 at 10:00AM before Judge Barry M. Kurren. Settlement Conference Statements are due by 4/11/2013. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

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 (Entered: 03/27/2013)

03/27/2013 268 CERTIFICATE OF SERVICE by Richard Kapela Davis re Notice of Deposition of Ted Sakai in his Official Capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 03/27/2013)

03/28/2013

269 RESPONSE in Opposition re 247 MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation of Witnesses filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum Memorandum of Law, # 2 Declaration Warden T. Thomas, # 3 Exhibit A − Thomas Decl., # 4 Exhibit B − Thomas Decl., # 5 Exhibit C − Thomas Decl., # 6 Declaration AW B. Griego, # 7 Exhibit A − Griego Decl., # 8 Exhibit B − Griego Decl., # 9 Exhibit C − Griego Decl., # 10 Exhibit D − Griego Decl., # 11 Exhibit E − Griego Decl. to be supplemented, # 12 Declaration CO N. Acuna, # 13 Declaration CM S. Blank, # 14 Declaration PO R. Streeter, # 15 Exhibit A − Streeter Decl., # 16 Exhibit B − Streeter Decl., # 17 Exhibit C − Streeter Decl., # 18 Declaration GC J. Valenzuela, # 19 Exhibit A − Valenzuela Decl., # 20 Exhibit B − Valenzuela Decl., # 21 Exhibit C − Valenzuela Decl., # 22 Declaration J. Guzman, # 23 Exhibit A − Guzman Decl., # 24 Certificate of Word Count, # 25 Certificate of Service)(Guzman, Jamie) (Entered: 03/28/2013)

03/29/2013

270 Additional Exhibits to 269 Response in Opposition to Motion,,,, Attachment E to Declaration of Assistant Warden Griego (Doc. 269−11) filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Exhibit E − Griego Affidavit (Doc.269−11), # 2 Certificate of Service)(Guzman, Jamie) (Entered: 03/29/2013)

03/29/2013

271 Declaration re 269 Response in Opposition to Motion,,,, SIGNED Declaration of Correctional Officer N. Acuna filed at Doc. 269−12. (Attachments: # 1 Declaration Correctional Officer N. Acuna − SIGNED, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 03/29/2013)

04/01/2013 273 Declaration re 269 Response in Opposition to Motion,,,, SIGNED Declaration of Warden T. Thomas filed at Doc. 269−2.. (Attachments: # 1 Declaration of Warden T. Thomas − SIGNED, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 04/01/2013)

04/01/2013

274 Ex Parte MOTION for Extension of Time to File Response/Reply as to 247 MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation of Witnesses Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Counsel, # 3 Proposed Order Granting Plaintiffs' Ex Parte Motion for Extension of Time, # 4 Certificate of Service)(Manley, Sharla) (Entered: 04/01/2013)

04/02/2013

ADVISORY ENTRY re: docket entry number 274 Ex Parte MOTION for Extension of Time to File Response/Reply filed by Richard Kapela Davis. Local Rule 100.5.3 "Third Party Signatures" states in part: "An electronically filed document requiring the signature of an individual other than the ECF User, such as a...declaration, must contain the original or a scanned image of that individual's signature." Thus the declaration of Leinaala Ley should reflect an original signature. Unless ordered by the court the document need not be re−filed in its entirety. However, upon receipt of the original endorsement of declarant Leinaala Ley, the "original" declaration may be e−filed. (afc) (Entered: 04/02/2013)

04/02/2013 275 EO: The Court GRANTS 274 Plaintiffs' Ex Parte Motion for an Extension of Time to File Reply Brief on Plaintiffs' Motion for a Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation Of Witnesses. Plaintiffs' Reply Memorandum is

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 37 of 98

due 4/11/2013. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

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 (Entered: 04/02/2013)

04/02/2013

276 NOTICE re 220 MOTION to Dismiss Defendants Motion to Dismiss for Failure to Exhaust; Memorandum of Points and Authorities; Declaration of Rachel Love; Exhibits A B; Certificate of Service − NOTICE of Filing Exhibit Regarding Pending Motion to Dismiss (Doc. 220) − Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Attachments: # 1 Declaration of Marnee Rosenberg, # 2 Exhibit A − Rosenberg Declaration, # 3 Certificate of Service)(Guzman, Jamie) (Entered: 04/02/2013)

04/02/2013

277 EO: 247 Plaintiffs' Motion For A Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation Of Witnesses and Status Conference set for 4/18/2013 @ 9:30 AM and Settlement Conference set for 4/18/2013 @ 10:00 AM are continued to 10:30 AM the same day before Judge Barry M. Kurren. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

04/04/2013

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 (Entered: 04/02/2013)
278 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendants' Fifth Supplemental Disclosure Statement (Guzman, Jamie) (Entered: 04/04/2013)

04/08/2013 279 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant Sakai's Third Supplemental Response to Plaintiffs' Third Request for Production (Guzman, Jamie) (Entered: 04/08/2013)

04/08/2013

280 MOTION for Protective Order re Haili Deposition Scheduled for April 10, 2013 − EXPEDITED RULING REQUESTED Jamie Guzman appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Declaration of Jamie Guzman, # 3 Exhibit A − Guzman Declaration, # 4 Exhibit B − Guzman Declaration, # 5 Exhibit C − Guzman Declaration, # 6 Certificate of Service)(Guzman, Jamie) (Entered: 04/08/2013)

04/08/2013

281 MEMORANDUM in Opposition re 280 MOTION for Protective Order re Haili Deposition Scheduled for April 10, 2013 − EXPEDITED RULING REQUESTED filed by Richard Kapela Davis. (Attachments: # 1 Declaration of Andrew B. Sprenger, # 2 Certificate of Service)(Sprenger, Andrew) (Entered: 04/08/2013)

04/09/2013

282 EO: Status Conference re 280 Motion For Protective Order Regarding Haili Deposition Scheduled For April 10, 2013 set for 4/9/2013 @ 02:00 PM before Judge BARRY M. KURREN. This status conference will be conducted by phone. Please provide Judge Kurren's Courtroom Manager (808−541−1306) asap with the phone numbers at which counsel may be reached. (Judge BARRY M. KURREN)(tyk)

CERTIFICATE OF SERVICE

04/09/2013

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 (Entered: 04/09/2013)
283 REPLY to Response to Motion re 280 MOTION for Protective Order re Haili Deposition Scheduled for April 10, 2013 − EXPEDITED RULING REQUESTED filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration of Jamie Guzman, # 3 Exhibit A − Guzman Decl, # 4 Exhibit B − Guzman Decl, # 5 Exhibit C − Guzman Decl, # 6 Exhibit D − Guzman Decl, # 7 Exhibit E − Guzman Decl, # 8 Certificate of Service)(Guzman, Jamie) (Entered: 04/09/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 38 of 98

04/09/2013 04/09/2013

284 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai −− Defendant CCA's First Request for Production of Documents to Plaintiffs (Guzman, Jamie) (Entered: 04/09/2013)
285 EP: Hearing on 280 Motion For Protective Order Regarding Haili Deposition Scheduled For April 10, 2013 held. This Motion is GRANTED IN PART and DENIED IN PART. The Motion is granted to the extent that Haili's deposition shall take place at or about the time of the Settlement Conference. The Court declines to issue a blanket order regarding the privilege issue. The parties shall share in the expense of Haili's air travel for the scheduled deposition on April 10, 2013. (C7F 2:03−2:29pm.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

04/11/2013

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 (Entered: 04/09/2013)
286 ORDER GRANTING IN PART AND DENYING IN PART 220 DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST: "...Defendants' Motion to Dismiss for Failure to Exhaust, filed on December 31, 2012, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to: (1) the claims for regular meetings with a spiritual advisor made by Plaintiffs Davis, Hughes, Kaahu, and Poaha; (2) Plaintiff Galdones's retaliation claims and claims for regular meetings with a spiritual advisor; and (3) Plaintiff Keawe's claims for daily religious congregation and establishment of an outdoor altar. The Motion is DENIED as to: (1) the state law claims; (2) Plaintiff Galdones's claims for congregation with other practitioners on a daily basis, participation in certain Makahiki rituals and ceremonies, access to sacred items, and establishment of an outdoor altar; (3) Plaintiff Keawe's claims for participation in certain Makahiki rituals and ceremonies, regular meetings with a spiritual advisor, and access to sacred items; and (3) all of Plaintiff Kane's religious claims. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on April 11, 2013. (bbb, )

CERTIFICATE OF SERVICE

04/11/2013

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 (Entered: 04/11/2013)
287 REPLY re 247 MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation of Witnesses filed by Richard Kapela Davis. (Attachments: # 1 Supplemental Declaration of Sharla Manley, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Supplemental Declaration of Darwin Ramirez, # 5 Exhibit 3, # 6 Certificate of Word Count, # 7 Certificate of Service)(Manley, Sharla) (Entered: 04/11/2013)

04/12/2013 288 CERTIFICATE OF SERVICE by Richard Kapela Davis re First Amended Notice of Deposition of Ted Sakai in his Official Capacity as Director of the Hawaii Department of Public Safety (Sprenger, Andrew) (Entered: 04/12/2013)

04/12/2013 289 CERTIFICATE OF SERVICE by Richard Kapela Davis re Third Amended Notice of Deposition for Kaiana Haili, Spiritual Advisor and Cultural Consultant; Exhibit 1 (Sprenger, Andrew) (Entered: 04/12/2013)

04/18/2013

290 EP: Settlement Conference was held. No settlement at this time. A Further Settlement Conference is set for 5/15/2013 at 2:00 p.m. before Judge Barry M. Kurren.Status Conference was not held.Hearing re 247 Plaintiffs Motion For A Protective Order Prohibiting Retaliation Against Plaintiffs and Intimidation Of Witnesses was held. This motion is DENIED without prejudice. (Chambers no record 10:31−1:05 p.m.; C7F 2:34−2:56 p.m.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

04/22/2013

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 (Entered: 04/18/2013)
291 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant Sakai's Response to Plaintiffs' Fifth Request for

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 39 of 98

04/22/2013 04/25/2013
04/26/2013

Production (Guzman, Jamie) (Entered: 04/22/2013)
292 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant CCA's Response to Plaintiffs' Fifth Request for Production (Guzman, Jamie) (Entered: 04/22/2013)
293 MOTION for Reconsideration re 286 Order Granting in Part and Denying in Part Defendants' Motion to Dismiss for Failure to Exhaust Order on Motion to Dismiss, − Andrew B. Sprenger appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Andrew B. Sprenger, # 3 Exhibit A, # 4 Certificate of Service)(Sprenger, Andrew) Modified on 4/26/2013 (afc). (Entered: 04/25/2013)
294 EO: COURT'S ORDER re 293 MOTION for Partial Reconsideration re 286 Order Granting in Part and Denying in Part Defendants' Motion to Dismiss for Failure to Exhaust. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

05/01/2013

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 (Entered: 04/26/2013)
295 First MOTION re 132 Protective Order, Plaintiffs' Motion for Limited Relief From Agreed Protective Order Andrew B. Sprenger appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Certificate of Service)(Sprenger, Andrew) (Entered: 05/01/2013)

05/02/2013

CORRECTIVE ENTRY. The entry docket number 295 Plaintiffs' Motion for Limited Relief From Agreed Protective Order WITH A DECLARATION OF SHARLA MANLEY filed by Richard Kapela Davis was filed incorrectly in this case. The filing party shall re−submit a SIGNED DECLARATION ONLY with a full caption page. (bbb, ) (Entered: 05/02/2013)

05/03/2013

296 NOTICE of Hearing on 295 Plaintiffs' Motion for Limited Relief from Agreed Protective Order. Motion Hearing set for 5/15/2013 at 2:00PM before Judge BARRY M. KURREN. Any Opposition is due 5/10/2013. Arguments in Reply may be made orally at the hearing.(kur2)

CERTIFICATE OF SERVICE

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. (Entered: 05/03/2013)

05/06/2013 297 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant Sakai's Second Supplemental Response to Plaintiffs' Fourth Requests for Production (Guzman, Jamie) (Entered: 05/06/2013)

05/10/2013

298 RESPONSE in Opposition re 295 First MOTION re 132 Protective Order, Plaintiffs' Motion for Limited Relief From Agreed Protective Order filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration of Jamie Guzman, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Certificate of Service)(Guzman, Jamie) (Entered: 05/10/2013)

05/13/2013

299 RESPONSE in Opposition re 293 MOTION for Partial Reconsideration re 286 Order Granting in Part and Denying in Part Defendants' Motion to Dismiss for Failure to Exhaust filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Lewis, David) (Entered: 05/13/2013)

05/14/2013 300 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant CCA's 3rd Supplemental Response to Plaintiffs' 3rd Request for Production (Guzman, Jamie) (Entered: 05/14/2013)

05/15/2013 301 MOTION for Certification of Finality Certificate of Appealability Leinaala L. Ley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum In Support of

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 40 of 98

05/15/2013

Motion, # 2 Certificate of Service)(Ley, Leinaala) Docket text modified on 5/15/2013. (afc) (Entered:
05/15/2013)
302 EP: Further Settlement Conference held. A Further Settlement Conference is set for 6/14/2013 at 11:00 a.m. before Judge Barry M. Kurren. The hearing on 295 Plaintiffs' Motion for Limited Relief from Agreed Protective Order is CONTINUED to 5/24/2013 at 11:00 a.m. before Judge Barry M. Kurren. (Chambers no record 2:00−2:35pm.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

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 (Entered: 05/15/2013)

05/15/2013

303 EO:On 5/15/2013, the Court received Plaintiff Richard Kapela Davis Motion for Certification of Finality [Doc.301] Pursuant to Local Rule 7.2 (d), the Court elects to decide the motion on the pleadings without a hearing.Briefing Schedule: The Opposition Memorandum is to be filed on or before Monday, 6/3/2013. The Reply Memorandum to be filed on or before Thursday, 6/20/2013. (JUDGE LESLIE E. KOBAYASHI)(lls, )

CERTIFICATE OF SERVICE

05/21/2013

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 (Entered: 05/15/2013)
304 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant CCA's 5th Supplemental Response to Plaintiffs' 2nd Request for Production (Guzman, Jamie) (Entered: 05/21/2013)

05/23/2013 305 CERTIFICATE OF SERVICE by Richard Kapela Davis Plaintiffs' Response to Defendant Corrections Corporation of America's First Request for Production of Documents to Plaintiffs (Ley, Leinaala) (Entered: 05/23/2013)

05/24/2013

306 EP: Hearing re 295 Plaintiffs' Motion for Limited Relief from Agreed Protective Order was held. The Hearing on this motion is CONTINUED to 6/14/2013 at 11:00 a.m. before Judge Barry M. Kurren.(C7F 10−56−11:17 a.m.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

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 (Entered: 05/24/2013)

05/29/2013 307 NOTICE of Cointinued Deposition of Ka'Iana Haili Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Attachments: # 1 Certificate of Service)(Guzman, Jamie) (Entered: 05/29/2013)

05/30/2013

308 REPLY re 299 Response in Opposition to Motion, for Partial Reconsideration filed by Richard Kapela Davis. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Exhibit B, # 3 Declaration Supplemental Declaration of Andrew B. Sprenger, # 4 Certificate of Service)(Sprenger, Andrew) (Entered: 05/30/2013)

06/03/2013 309 RESPONSE in Opposition re 301 MOTION for Certification of Finality filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Lewis, David) (Entered: 06/03/2013)

06/04/2013

310 MOTION to Certify Class Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Word Count, # 3 Declaration of Sharla Manley)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013

311 Additional Exhibits to 310 MOTION to Certify Class filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 6 part 2 of 3, # 7 Exhibit 6 part 3 of 3)(Manley, Sharla) (Entered: 06/04/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 41 of 98

06/04/2013 06/04/2013

312 Additional Exhibits to 310 MOTION to Certify Class Exhibits 7−12 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 8, # 2 Exhibit 9, # 3 Exhibit 10, # 4 Exhibit 11, # 5 Exhibit 12)(Manley, Sharla) (Entered: 06/04/2013)
313 NOTICE of Hearing on Motion 310 MOTION to Certify Class : Motion Hearing set for 8/19/2013 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

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. (Entered: 06/04/2013)

06/04/2013 314 Additional Exhibits to 310 MOTION to Certify Class Exhibits 13−14 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 13 part 2 of 3, # 2 Exhibit 13 part 3 of 3, # 3 Exhibit 14)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013

315 Additional Exhibits to 310 MOTION to Certify Class Exhibits 15−19 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 15 part 2 of 3, # 2 Exhibit 15 part 3 of 3, # 3 Exhibit 16, # 4 Exhibit 17, # 5 Exhibit 18, # 6 Exhibit 19)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013 316 Additional Exhibits to 310 MOTION to Certify Class Exhibits 20−21 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 20 part 2 of 2, # 2 Exhibit 21)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013 317 Additional Exhibits to 310 MOTION to Certify Class Exhibit 22 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 22 part 2 of 4, # 2 Exhibit 22 part 3 of 4, # 3 Exhibit 22 part 4 of 4)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013

318 Additional Exhibits to 310 MOTION to Certify Class Exhibits 23−33 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 24, # 2 Exhibit 25, # 3 Exhibit 26, # 4 Exhibit 27, # 5 Exhibit 28, # 6 Exhibit 29, # 7 Exhibit 30, # 8 Exhibit 31, # 9 Exhibit 32, # 10 Exhibit 33)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013

319 Additional Exhibits to 310 MOTION to Certify Class Exhibits 34−43 filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 35, # 2 Exhibit 36, # 3 Exhibit 37, # 4 Exhibit 38, # 5 Exhibit 39, # 6 Exhibit 40, # 7 Exhibit 41, # 8 Exhibit 42, # 9 Exhibit 43)(Manley, Sharla) (Entered: 06/04/2013)

06/04/2013

320 Additional Exhibits to 310 MOTION to Certify Class filed by Richard Kapela Davis. (Attachments: # 1 Declaration of Kyle Alcott, # 2 Declaration of Kekona Anthony, # 3 Declaration of Franklin Antonio, # 4 Declaration of William Jackson Barnes, # 5 Declaration of Robert Branco, # 6 Declaration of Li'ikaimana Cook, # 7 Declaration of Douglas Cordeiro, # 8 Declaration of Arthur Damasco, # 9 Declaration of John DeCambra, # 10 Declaration of Anthony Delmundo, # 11 Declaration of Calvin Flournoy, # 12 Declaration of Billyblue Holbron, # 13 Exhibit A, # 14 Declaration of Robert Holbron, # 15 Exhibit A, # 16 Declaration of Ronald Jose, # 17 Declaration of Lincoln Kaehu Jr, # 18 Declaration of William Kaohu Sr, # 19 Declaration of Clifford Kau, # 20 Declaration of Samson Kauhi, # 21 Declaration of Jay Lono, # 22 Declaration of Kevin Lono, # 23 Declaration of Justin Luhia, # 24 Declaration of Jonathan Lum, # 25 Exhibit A, # 26 Declaration of Ezra Mahu, # 27 Declaration of Chevas Mahuka−Parrilla, # 28 Declaration of Peter Moses, # 29 Declaration of James Mundon, # 30 Declaration of Tavis Nactor, # 31 Declaration of Peter Pasigan, # 32 Declaration of Rickylee Phillips, # 33 Declaration of Tomas Quirantes, # 34 Declaration of Darwin Ramirez, # 35 Declaration of Shane Rodrigues, # 36 Declaration of Eugene Ruiz, # 37 Exhibit A, # 38 Declaration of Roland Silva, # 39 Declaration of Richard Taylor, # 40 Declaration of Eric Vance, # 41 Certificate of Service)(Manley, Sharla) (Entered: 06/04/2013)

06/06/2013

321 ORDER DENYING PLAINTIFF RICHARD DAVIS'S MOTION FOR PARTIAL RECONSIDERATION OF ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST re: 293 , 286 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/6/2013. (afc)

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 42 of 98

06/07/2013 06/07/2013

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 (Entered: 06/06/2013)
322 MOTION for Judgment on the Pleadings Jamie Guzman appearing for Defendant Neil Abercrombie (Attachments: # 1 Memorandum, # 2 Certificate of Word Count, # 3 Certificate of Service)(Guzman, Jamie) (Entered: 06/07/2013)
323 EO: The Further Settlement Conference and the hearing on 295 Plaintiffs' Motion for Limited Relief from Agreed Protective Order, which are set for 6/14/2013, are MOVED from 11:00AM to 9:15AM on that same date before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

06/07/2013

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 (Entered: 06/07/2013)
324 EO: Regarding 322 MOTION for Judgment on the Pleadings . Motion Hearing set for 7/22/2013 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. Memorandum in Opposition is due 6/24/2013.Reply Memorandum is due 7/1/2013. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

06/10/2013 06/14/2013

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 (Entered: 06/07/2013)
ADVISORY ENTRY. (unless ordered by the court, the document need not be refiled): Docket entry number 322 MOTION for Judgment on the Pleadings filed on behalf of Neil Abercrombie was filed incorrectly in this case. The signature on the document (/s/David C. Lewis) is not that of the log−in assigned to the CM/ECF filer. Pursuant to Local Rule 100.5.1/100.5.2, the name of the ECF User under whose login and password the document is being electronically filed must be preceded by "/s/" and typed in the space where the signature otherwise would appear (in this instance, the e−signature should be reflected as /s/Jamie Guzman). (afc) (Entered: 06/10/2013)
325 EP: Further Settlement Conference held. No settlement at this time. Further Settlement Conference is on call.Hearing on 295 Plaintiffs' Motion for Limited Relief from Agreed Protective Order not held. This Hearing is CONTINUED to 6/20/2013 at 9:00 a.m. before Judge Barry M. Kurren.(Chambers no recor 9:15−9:55am.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

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 (Entered: 06/14/2013)

06/17/2013

326 MOTION to Compel Outstanding Discovery Responses Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 4 part 2 of 2)(Manley, Sharla) (Entered: 06/17/2013)

06/17/2013

327 Additional Exhibits to 326 MOTION to Compel Outstanding Discovery Responses Exhibits "5" − "14" filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14)(Manley, Sharla) (Entered: 06/17/2013)

06/17/2013

328 Additional Exhibits to 326 MOTION to Compel Outstanding Discovery Responses Exhibits "15 − "23", etc filed by Richard Kapela Davis. (Attachments: # 1 Exhibit 15, # 2 Exhibit 16, # 3 Exhibit 17, # 4 Exhibit 18, # 5 Exhibit 19, # 6 Exhibit 20, # 7 Exhibit 21, # 8 Exhibit 22, # 9 Exhibit 23, # 10 Certificate of Compliance, # 11 Certificate of Service)(Manley, Sharla) (Entered: 06/17/2013)

06/18/2013 329 MOTION to Continue Hearing on Plantiffs' Motion for Class Certification (Doc. 310) and for Extension of Time to File Opposition to Plaintiffs' Motion Jamie Guzman appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 43 of 98

06/18/2013

Sakai (Attachments: # 1 Memorandum, # 2 Declaration of Jamie D. Guzman, # 3 Exhibit A − Declaration of Jamie Guzman, # 4 Certificate of Service)(Guzman, Jamie) (Entered: 06/18/2013)
330 EO: COURT'S ORDER re 329 MOTION to Continue Hearing on Plaintiffs' Motion for Class Certification (Doc. 310) and for Extension of Time to File Opposition to Plaintiffs' Motion. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

06/19/2013

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 (Entered: 06/18/2013)
331 EO: Per Janet of Native Hawaiian Legal Corporation, the parties have resolved the issues regarding 295 Plaintiffs' Motion for Limited Relief from Agreed Protective Order. The 6/20/2013 hearing regarding this motion is VACATED and the motion is TERMINATED. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

06/19/2013

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 (Entered: 06/19/2013)
332 MOTION to Seal Document 326 MOTION to Compel Outstanding Discovery Responses Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Declaration of Sharla Manley, # 2 Proposed Order, # 3 Certificate of Service)(Manley, Sharla) (Entered: 06/19/2013)

06/19/2013

333 Plaintiffs' NOTICE OF LODGING of Exhibit "24" in Support of 332 Plaintiffs' MOTION to File Under Seal an Exhibit in Support of Plaintiffs' Motion to Compel Outstanding Discovery Responses; Sealed Exhibit 24 of Plaintiffs' Motion to Compel Outstanding Discovery Responses; Certificate of Service re 326 − Ellington Keawe, Damien Kaahu, Kalai K. Poaha, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III. (emt, ) (Entered: 06/20/2013)

06/20/2013 334 NOTICE of Hearing on 326 Motion to Compel Outstanding Discovery Responses is set for 08/02/2011 @ 11:00 AM before Judge BARRY M. KURREN. (bbb)

CERTIFICATE OF SERVICE

06/20/2013

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. (Entered: 06/20/2013)
335 EO: The Court GRANTS Plaintiffs' 332 Motion to File Under Seal an Exhibit In Support of Plaintiffs' Motion to Compel Outstanding Discovery Responses.Plaintiffs' Exhibit 24 In Support of Plaintiffs' Motion to Compel Outstanding Discovery Responses may be filed under seal. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

06/20/2013

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 (Entered: 06/20/2013)
336 REPLY re 301 MOTION for Certification of Finality filed by Tyrone K. N. Galdones. (Attachments: # 1 Certificate of Service)(Ley, Leinaala) (Entered: 06/20/2013)

06/21/2013

337 SEALED EXHIBIT 24 in Support of 326 Plaintiffs' MOTION to Compel Outstanding Discovery Responses − filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. −− filed under seal pursuant to 335 Minute Order granting [332} Motion to File Under Seal an Exhibit In Support of Plaintiffs' Motion to Compel Outstanding Discovery Responses. (emt, ) (emt, ). (Entered: 06/21/2013)

06/24/2013 338 MEMORANDUM in Opposition re 322 MOTION for Judgment on the Pleadings filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha.

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 44 of 98

06/24/2013

(Attachments: # 1 Memorandum of Points and Authorities, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Declaration of Andrew B. Sprenger, # 13 Certificate of Word Count, # 14 Certificate of Service)(Sprenger, Andrew) (Entered: 06/24/2013)
339 ORDER DENYING PLAINTIFF TYRONE GALDONES'S MOTION FOR CERTIFICATION OF FINALITY re: 301 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/24/2013. (afc)

CERTIFICATE OF SERVICE

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 will be served by first
class mail on June 25, 2013. (Entered: 06/24/2013)

06/28/2013

340 MEMORANDUM in Opposition re 329 MOTION to Continue Hearing on Plantiffs' Motion for Class Certification (Doc. 310) and for Extension of Time to File Opposition to Plaintiffs' Motion filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Service)(Sprenger, Andrew) (Entered: 06/28/2013)

07/01/2013

341 REPLY in Support of 322 MOTION for Judgment on the Pleadings filed by Neil Abercrombie. (Attachments: # 1 Memorandum, # 2 Declaration of David C. Lewis, # 3 Exhibit 1 − Lewis Declaration, # 4 Exhibit 2 − Lewis Declaration, # 5 Certificate of Word Count, # 6 Certificate of Service)(Lewis, David) Modified on 7/2/2013 (emt, ). (Entered: 07/01/2013)

07/01/2013

342 MOTION for Leave to File Excess Pages re: Memorandum in Support of Defendant Abercrombie's Reply re: Motion for Judgment on the Pleadings [filed at Doc. 341 ] David Lewis appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Certificate of Service)(Lewis, David) Modified on 7/2/2013 (emt, ). (Entered: 07/01/2013)

07/01/2013

343 MEMORANDUM in Opposition re 342 MOTION for Leave to File Excess Pages re: Memorandum in Support of Defendant Abercrombie's Reply re: Motion for Judgment on the Pleadings [filed at Doc. 341] filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Sprenger, Andrew) (Entered: 07/01/2013)

07/02/2013 344 Correction on 334 Notice of Hearing setting hearing for the year 2011.

NOTICE of Hearing on 326 Motion to Compel Outstanding Discovery Responses is set for 08/02/2013 11:00 AM before JUDGE BARRY M. KURREN. (bbb)

CERTIFICATE OF SERVICE

07/02/2013

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. (Entered: 07/02/2013)
345 ORDER ON DEFENDANTS' MOTION FOR LEAVE TO EXCEED PAGE/WORD LIMIT ON MEMORANDUM IN SUPP0RT OF DEFENDANT ABERCROMBIE'S REPLY RE: MOTION FOR JUDGMENT ON THE PLEADINGS [DOC 322 ] re 342 − Signed by JUDGE LESLIE E. KOBAYASHI on 7/2/13. (emt, )

CERTIFICATE OF SERVICE

07/03/2013

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 (Entered: 07/02/2013)
346 ORDER GRANTING DEFENDANTS' MOTION FOR A CONTINUANCE OF HEARING ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION re: 329 . ~ The hearing on the Motion for Class Certification (doc 310 ) is continued to 9:45 a.m. on September 23, 2013 before Judge Leslie E. Kobayashi. Defendants' response

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 45 of 98

to Plaintiffs' Motion for Class Certification, [dkt. no. 310,] is due on August 30, 2013. Plaintiffs' reply is due on September 6, 2013. ~ Signed by JUDGE LESLIE E. KOBAYASHI on 7/2/2013. (afc)

CERTIFICATE OF SERVICE

07/09/2013

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 (Entered: 07/03/2013)
347 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Notice of Deposition of Corrections Corporation of America, Pursuant to Federal Rule of Civil Procedure 30(B)(6) (Manley, Sharla) (Entered: 07/09/2013)

07/12/2013

348 RESPONSE in Opposition re 326 MOTION to Compel Outstanding Discovery Responses filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration of Jamie Guzman, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Certificate of Word Count, # 12 Certificate of Service)(Guzman, Jamie) (Entered: 07/12/2013)

07/15/2013

349 MOTION for Leave to File Plaintiffs' Supplemental Opposition to Defendant Abercrombie's Motion for Judgment on the Pleadings and to File Exhibit 11 Andrew B. Sprenger appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Andrew Sprenger, # 2 Certificate of Service)(Sprenger, Andrew) (Entered: 07/15/2013)

07/15/2013

350 MEMORANDUM in Opposition re 322 MOTION for Judgment on the Pleadings SUPPLEMENTAL OPPOSITION filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 11, # 2 Declaration of Andrew Sprenger, # 3 Certificate of Service)(Sprenger, Andrew) (Entered: 07/15/2013)

07/16/2013

351 Errata re 338 Memorandum in Opposition to Motion,, Plaintiffs' Notice of Errata re: Submission of Exhibit 7 Attached to Plaintiffs' Opposition to Defendant Abercrombie's Motion for Judgment on the Pleadings. (Attachments: # 1 Exhibit 7, # 2 Declaration of Andrew B. Sprenger, # 3 Certificate of Service)(Sprenger, Andrew) (Entered: 07/16/2013)

07/17/2013

352 EO: COURT'S ORDER granting 349 Motion for Leave to File; Regarding 322 MOTION for Judgment on the Pleadings . Motion Hearing is continued to 8/5/2013 at 11:15 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

07/19/2013 07/23/2013

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 (Entered: 07/17/2013)
353 REPLY re 326 MOTION to Compel Outstanding Discovery Responses filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration Supplemental, # 2 Exhibit 25, # 3 Certificate of Service)(Manley, Sharla) (Entered: 07/19/2013)
354 MOTION for Reconsideration re 85 Order − Written Order Following Oral Order on Motion,, Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery and Granting in Part Defendants' Cross Motion for Protective Order Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Sharla Manley, # 3 Exhibit A, # 4 Certificate of Conferring in Good Faith, # 5 Certificate of Service)(Manley, Sharla) (Entered: 07/23/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 46 of 98

07/24/2013 07/24/2013 07/24/2013
07/24/2013

355 CERTIFICATE OF SERVICE by Richard Kapela Davis re Sixth Set of Requests for Production of Documents to Defendant Ted Sakai, in his official capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 07/24/2013)
356 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Third Set of Request for Admissions to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 07/24/2013)
357 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Third Request for Admissions to Defendant Ted Sakai, in his official capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 07/24/2013)
358 NOTICE of Hearing on 354 Plaintiffs' Motion for Partial Reconsideration of 85 Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery and Granting in Part Defendants' Cross Motion for a Protective Order Hearing is set for 08/02/2013 11:00 AM before Judge BARRY M. KURREN. Any Opposition Memorandum is due 07/31/2013; arguments in Reply may be made orally at the hearing.(bbb)

CERTIFICATE OF SERVICE

07/25/2013 07/26/2013 07/31/2013
07/31/2013 07/31/2013

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. (Entered: 07/24/2013)
359 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re: First Supplemental Response to Defendant Corrections Corporation of America's First Request for Production of Documents to Plaintiffs (Ley, Leinaala) (Entered: 07/25/2013)
360 RESPONSE re 322 MOTION for Judgment on the Pleadings to Plaintiffs' Supplemental Opposition to Defendant Abercrombie's Motion for Judgment on the Pleadings (per Order − Doc. 352) filed by Neil Abercrombie. (Attachments: # 1 Certificate of Service)(Lewis, David) (Entered: 07/26/2013)
361 MOTION for Summary Judgment David Lewis appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Concise Statement of Fact, # 3 Declaration Guzman, # 4 Exhibit 1 − Guzman Decl, # 5 Exhibit 2 − Guzman Decl, # 6 Exhibit 3 − Guzman Decl, # 7 Exhibit 4 (part 1) − Guzman Decl, # 8 Exhibit 4 (part 2) − Guzman Decl, # 9 Exhibit 4 (part 3) − Guzman Decl, # 10 Exhibit 4 (part 4) − Guzman Decl, # 11 Exhibit 4 (part 5) − Guzman Decl, # 12 Exhibit 4 (part 6) − Guzman Decl, # 13 Exhibit 4 (part 7) − Guzman Decl, # 14 Exhibit 4 (part 8) − Guzman Decl, # 15 Exhibit 5 − Guzman Decl, # 16 Exhibit 6 − Guzman Decl, # 17 Exhibit 7 − Guzman Decl, # 18 Exhibit 8 − Guzman Decl, # 19 Exhibit 9 − Guzman Decl, # 20 Exhibit 10 − Guzman Decl, # 21 Exhibit 11 − Guzman Decl, # 22 Exhibit 12 − Guzman Decl, # 23 Declaration Thomas, # 24 Declaration Stolc, # 25 Declaration Kimoto, # 26 Certificate of Word Count − Memorandum, # 27 Certificate of Word Count − Concise Statement of Fact, # 28 Certificate of Service)(Lewis, David) (Entered: 07/31/2013)
362 MOTION for Leave to File Excess Pages (Defendants' Memorandum in Support of Motion for Summary Judgment and Concise Statement of Fact (Doc. 361) David Lewis appearing for Defendants Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Lewis, David) Docket text modified on 8/1/2013 to note: Document title is styled to include a Certificate of Service ("COS"). The COS is not included with the instant filing. (afc) (Entered: 07/31/2013)
363 RESPONSE in Opposition re 354 MOTION for Partial Reconsideration re 85 Order Granting in Part Plaintiffs' Motion to Compel Class Certification Discovery and Granting in Part Defendants' Cross Motion for Protective Order filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Word Count, # 3 Certificate of Service)(Guzman, Jamie) (Entered: 07/31/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 47 of 98

07/31/2013

364 EO: COURT ORDER REGARDING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Regarding 310 MOTION to Certify Class . Motion Hearing set for 9/23/2013 is continued to 12/2/2013 at 10:30 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

07/31/2013

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 (Entered: 07/31/2013)
365 NOTICE of Hearing on Motion 361 MOTION for Summary Judgment : Motion Hearing set for 9/23/2013 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

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. (Entered: 07/31/2013)

07/31/2013 367 Submission of EXHIBIT 3 [CD] to Declaration of Jamie D. Guzman re 361 MOTION for Summary Judgment ~ filed by Neil Abercrombie, Ted Sakai, Corrections Corporation of America. ~ RETAINED ~ (afc) (Entered: 08/01/2013)

08/01/2013 366 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai (Defendants' Sixth Supplemental Disclosure Statement) (Guzman, Jamie) (Entered: 08/01/2013)

08/02/2013

369 EP: Hearing re 326 Plaintiffs' Motion to Compel Outstanding Discovery Responses and 354 Plaintiffs' Motion for Partial Reconsideration was held. Plaintiffs' Motion for Partial Reconsideration is DENIED without prejudice. Plaintiffs' Motion to Compel is GRANTED IN PART and DENIED IN PART. Sharla Manley to prepare order. (C6F 10:59−11:26 a.m.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

08/05/2013

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 (Entered: 08/02/2013)
370 EP: Motion Hearing held on 8/5/2013 re 322 MOTION for Judgment on the Pleadings filed by Neil Abercrombie. Motion Taken Under Advisement: 322 MOTION for Judgment on the Pleadings . (Court Reporter Cynthia Ott) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/08/2013

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 (Entered: 08/05/2013)
371 ORDER ON DEFENDANTS' MOTION FOR LEAVE TO EXCEED PAGE/WORD LIMIT ON MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND SUPPORTING CONCISE STATEMENT OF FACTS ~ Motion is GRANTED re: 362 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/8/2013. [A certificate of service, as described in the document title, is not appended with the order] (afc)

CERTIFICATE OF SERVICE

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 (Entered: 08/08/2013)

08/20/2013

372 MOTION to Continue hearing on Defendants' Motion for Summary Judgment and for Extension of Time to File Opposition to Defendants' Motion Andrew B. Sprenger appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 48 of 98

08/21/2013

Sharla Manley, # 3 Certificate of Service)(Sprenger, Andrew) (Entered: 08/20/2013)
373 EO: COURT ORDER GRANTING PLAINTIFFS' MOTION FOR A CONTINUANCE OF HEARING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 361) AND FOR EXTENSION OF TIME TO FILE OPPOSITION TO DEFENDANTS' MOTION AND DEEMING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION WITHDRAWN WITHOUT PREJUDICE. terminating 310 Motion to Certify Class; granting 372 Motion to Continue; 361 MOTION for Summary Judgment . Motion Hearing set for 12/2/2013 at 10:30 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 08/21/2013)

08/23/2013

374 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant Sakai's Responses to Plaintiffs' Third Requests for Admission and Sixth Request for Production of Documents (Guzman, Jamie) (Entered: 08/23/2013)

08/23/2013 375 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai − Defendant CCA's Responses to Plaintiffs' Third Requests for Admission (Guzman, Jamie) (Entered: 08/23/2013)

08/23/2013

376 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai Defendants Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Guzman, Jamie) (Entered: 08/23/2013)

08/26/2013

378 ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL CLASS CERTIFICATION DISCOVERY AND GRANTING IN PART DEFENDANTS' CROSS MOTION FOR A PROTECTIVE ORDER re: 354 . Signed by Judge BARRY M. KURREN on 8/23/2013. [Minutes of Hearing held 8/2/2013 on Motion: doc. no. 369 ] (afc, )

CERTIFICATE OF SERVICE

08/26/2013

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 (Entered: 08/28/2013)
379 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL OUTSTANDING DISCOVERY RESPONSES re: 326 . Signed by Judge BARRY M. KURREN on 8/23/2013. [Minutes of Hearing held 8/2/2013 on Motion:
doc. no. 369 ] (afc)

CERTIFICATE OF SERVICE

08/28/2013 08/28/2013 08/28/2013

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 (Entered: 08/28/2013)
380 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Fourth Set of Request for Admissions to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 08/28/2013)
381 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs Richard Davis et al.'s Sixth Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 08/28/2013)
382 Return of Service on Subpoena Ty Preston Kawika Tengan was served on 8/26/13 (Luria, April) (Entered: 08/28/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 49 of 98

08/30/2013

383 EO: COURT ORDER REGARDING DEFENDANT NEIL ABERCROMBIE'S MOTION FOR JUDGMENT ON THE PLEADINGS.granting 322 Motion for Judgment on the Pleadings; DOP=8/30/2013. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

09/05/2013 09/05/2013

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 (Entered: 08/30/2013)
384 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' First Supplemental Disclosure Pursuant to Fed. R. Civ. P. 26(a)(1) (Ley, Leinaala) (Entered: 09/05/2013)
385 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Expert Witness Report of Richard J. Subia, Attachments "A" and "B" (Ley, Leinaala) (Entered: 09/05/2013)

09/06/2013

386 MOTION to Quash or Modify Subpoena Duces Tecum Upon Non−Party Ty Preston Kawika Tengan, Served August 23, 2013 Andrew B. Sprenger appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Ty Preston Kawika Tengan, # 3 Exhibit A, # 4 Exhibit B, # 5 Declaration of Andrew Sprenger, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Certificate of Word Count, # 9 Certificate of Service)(Sprenger, Andrew) (Entered: 09/06/2013)

09/09/2013 09/10/2013

387 Errata re 386 MOTION to Quash or Modify Subpoena Duces Tecum Upon Non−Party Ty Preston Kawika Tengan, Served August 23, 2013 Plaintiffs' Notice of Re−submission of Declaration of Andrew B. Sprenger. (Attachments: # 1 Declaration of Andrew Sprenger, # 2 Cetificate of Service)(Sprenger, Andrew) (Entered: 09/09/2013)
388 NOTICE of Hearing on Motion: Hearing re 386 Motion to Quash or Modify Subpoena Duces Tecum Upon Non−Party Ty Preston Kawika Tengan is set for 10/17/2013 at 11:00 AM before Judge BARRY M. KURREN. (kur1)

CERTIFICATE OF SERVICE

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. (Entered: 09/10/2013)

09/12/2013

389 MOTION for Clarification of Minute Order Granting Defendant Abercrombie's Motion for Judgment on the Pleadings re: 383 Andrew B. Sprenger appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum in Support of Motion, # 2 Certificate of Service)(Sprenger, Andrew) Docket text modified on 9/13/2013 − extraneous text deleted. (afc) (Entered: 09/12/2013)

09/13/2013

390 ORDER GRANTING DEFENDANT NEIL ABERCROMBIE'S MOTION FOR JUDGMENT ON THE PLEADINGS re 322 , 383 − Signed by JUDGE LESLIE E. KOBAYASHI on 9/13/13. "All of Plaintiffs' claims against Defendant Abercrombie in the Second
Amended Complaint and the Supplemental Complaint are HEREBY DISMISSED WITH PREJUDICE. Further, Count XXI (Plaintiffs' claim alleging violations of Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1−1) in the Second Amended Complaint and incorporated into the Supplemental Complaint is HEREBY DISMISSED WITH PREJUDICE as to all Defendants. In addition, Defendant Abercrombie's request for sanctions is HEREBY DENIED WITHOUT PREJUDICE. This Court directs the Clerk's Office to terminate Defendant Abercrombie as a party."
(emt, )

CERTIFICATE OF SERVICE
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 (Entered: 09/13/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 50 of 98

09/13/2013 391 EO: COURT'S ORDER terminating 389 Motion for Clarification. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

09/13/2013

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 (Entered: 09/13/2013)
392 CERTIFICATE OF SERVICE by Richard Kapela Davis (Sprenger, Andrew) (Entered: 09/13/2013)

09/19/2013 09/25/2013 09/26/2013

393 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Subpoena to Produce Documents (Guzman, Jamie) (Entered: 09/19/2013)
394 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendants' 7th Supplemental Disclosure Statement (Guzman, Jamie) (Entered: 09/25/2013)
395 RESPONSE in Opposition re 386 MOTION to Quash or Modify Subpoena Duces Tecum Upon Non−Party Ty Preston Kawika Tengan, Served August 23, 2013 filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration Jamie D. Guzman, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Certificate of Word Count, # 7 Certificate of Service)(Guzman, Jamie) (Entered: 09/26/2013)

09/27/2013 396 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Responses to Plaintiffs' 4th Requests for Admission (Guzman, Jamie) (Entered: 09/27/2013)

09/27/2013 09/27/2013

397 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Responses to Plaintiffs' Sixth Requests for Production (Guzman, Jamie) (Entered: 09/27/2013)
398 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Fifth Set of Request for Admissions to Defendant Corrections Corporation of America; Exhibits "1" − "38" (Sprenger, Andrew) (Entered: 09/27/2013)

10/02/2013

399 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Fourth Request for Admissions to Defendant Ted Sakai, in his official capacity as Director of the Hawaii Department of Public Safety; Exhibits "1"−"4" (Ley, Leinaala) (Entered: 10/02/2013)

10/03/2013

400 REPLY re 386 MOTION to Quash or Modify Subpoena Duces Tecum Upon Non−Party Ty Preston Kawika Tengan, Served August 23, 2013 filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration of Andrew B. Sprenger, # 2 Exhibit 3, # 3 Certificate of Word Count, # 4 Certificate of Service)(Sprenger, Andrew) (Entered: 10/03/2013)

10/11/2013

401 MOTION to Compel Entry onto Designated Land and Site Inspection of Sagauro Correctional Center Leinaala L. Ley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Leinaala Ley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Declaration of Kenneth Walczak, # 10 Certificate of Conferring in Good Faith, # 11 Certificate of Service)(Ley, Leinaala) (Entered: 10/11/2013)

10/14/2013 10/14/2013

402 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Second Supplemental Disclosure Pursuant to Fed. R. Civ. P. 26(a)(1) (Manley, Sharla) (Entered: 10/14/2013)
403 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 51 of 98

10/14/2013
10/14/2013 10/15/2013 10/17/2013

Keawe, Kalai K. Poaha re Expert Witness Report of Jeanne Woodford (Manley, Sharla) (Entered: 10/14/2013)
404 Ex Parte MOTION to Expedite Hearing of Plaintiffs' Motion to Compel Entry onto Designated Land and Site Inspection of Saguaro Correctional Center Leinaala L. Ley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Leina`ala Ley, # 2 Certificate of Service)(Ley, Leinaala) (Entered: 10/14/2013)
405 Declaration re 401 MOTION to Compel Entry onto Designated Land and Site Inspection of Sagauro Correctional Center Plaintiffs' Submission of Original Declaration. (Attachments: # 1 Declaration of Kenneth M. Walczak, # 2 Certificate of Service)(Ley, Leinaala) (Entered: 10/14/2013)
406 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Response and Objections to Plaintiffs' Request for Entry Upon Land for Inspection (Guzman, Jamie) (Entered: 10/15/2013)
407 EP: Hearing on 386 Plaintiffs' Motion to Quash or Modify Subpoena Duces Tecum held. This Motion is GRANTED. Email communications between Preston Tengan and third parties shall be produced. Tengan is discharged with respect to this subpoena. Defendants shall contact Plaintiffs' counsel for further discovery from Tengan. Plaintiffs' counsel to prepare order.Plaintiffs' 404 Ex Parte Motion for Expedited Hearing of Plaintiffs' Motion to Compel Entry Onto Designated Land and Site Inspection is GRANTED. Plaintiffs' 401 Motion to Compel Entry Onto Designated Land and Site Inspection is set for hearing on 10/25/2013 at 11:00AM before Judge Barry M. Kurren. Any opposition is due 10/24/2013. (C8F 10:58−11:23AM.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

10/17/2013

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 (Entered: 10/17/2013)
408 NOTICE of Hearing on Motion 401 to Compel Entry onto Designated Land and Site Inspection of Sagauro Correctional Center. Motion Hearing set for 10/25/2013 11:00 AM before Judge BARRY M. KURREN. Any opposition is due 10/24/2013.(kur1)

CERTIFICATE OF SERVICE

10/24/2013 10/25/2013

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. (Entered: 10/17/2013)
409 RESPONSE in Opposition re 401 MOTION to Compel Entry onto Designated Land and Site Inspection of Sagauro Correctional Center and Motion for Protective Order From Further Discovery filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration Rachel Love, # 3 Declaration Jamie D. Guzman, # 4 Exhibit A − Guzman Declaration, # 5 Exhibit B − Guzman Declaration, # 6 Exhibit C − Guzman Declaration, # 7 Exhibit D − Guzman Declaration, # 8 Exhibit E − Guzman Declaration, # 9 Certificate of Word Count, # 10 Certificate of Service)(Guzman, Jamie) 10/25/2013: Docket text modified; Filing event modified from
"Response in Opposition to Motion" to "MOTION FOR PROTECTIVE ORDER." Page no. 3 states in part: "Defendants additionally request that the Court grant Defendants relief from further oppressive discovery by Plaintiffs where Defendants' Motion For Summary Judgment filed on July 31, 2013 [Doc. 361] is pending and set for oral argument on December 2, 2013." (afc) (Entered: 10/24/2013)
411 SUPPLEMENT re 401 MOTION to Compel Entry onto Designated Land and Site Inspection of Sagauro Correctional Center filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha Supplemental Declaration of Leina`ala L. Ley in Support of Plaintiffs' Motion to Compel. (Attachments: # 1 Supplement Declaration of Leinaala Ley, # 2 Exhibit 7, # 3 Certificate of Service)(Ley, Leinaala) (Entered: 10/25/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 52 of 98

10/25/2013 10/25/2013

412 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendant CCA's Response to Plaintiffs' Fifth Requests for Admission (Guzman, Jamie) (Entered: 10/25/2013)
413 EP: Hearing held on 401 Plaintiffs' Motion to Compel Entry Onto Designated Land and Site Inspection. The Motion is DENIED WITHOUT PREJUDICE. April Luria to prepare Order. (C8F 11:02−11:14AM.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

10/25/2013

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 (Entered: 10/25/2013)
414 ORDER GRANTING MOTION TO QUASH OR MODIFY SUBPOENA DUCES TECUM UPON NON−PARTY TY PRESTON KAWIKA TENGAN, SERVED AUGUST 23, 2013 re: 386 . Signed by Judge BARRY M. KURREN on 10/18/2013. (afc)

CERTIFICATE OF SERVICE

10/28/2013

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 (Entered: 10/25/2013)
415 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Third Supplemental Disclosure Pursuant to Fed. R. Civ. P. 26(a)(1) (Manley, Sharla) (Entered: 10/28/2013)

10/28/2013 416 EO: The Court DENIES 409 Defendants' Motion for Protective Order From Further Discovery. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

10/31/2013

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 (Entered: 10/28/2013)
417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Word Count, # 3 Certificate of Service)(Manley, Sharla) (Entered: 10/31/2013)

10/31/2013

418 CONCISE STATEMENT of Facts re 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration of Ty Tengan, # 2 Exhibit 1, # 3 Declaration of Sharla Manley, # 4 Exhibit A, # 5 Exhibit A part 2 of 2, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Certificate of Service)(Manley, Sharla) (Entered: 10/31/2013)

10/31/2013

419 MOTION for Leave to File Excess Pages /Word Limit on Their Concise Statement of Facts in Support of Their Motion for Partial Summary Judgment Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Manley, Sharla) (Entered: 10/31/2013)

11/01/2013 420 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendant Sakai's Response to Plaintiffs' Fourth Requests for Admission (Guzman, Jamie) (Entered: 11/01/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 53 of 98

11/01/2013 421 EO: Regarding 361 MOTION for Summary Judgment . Motion Hearing set for 12/2/2013 at 10:30 AM is continued to 1/13/2014 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

11/01/2013

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 (Entered: 11/01/2013)
422 NOTICE of Hearing on Motion 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") : Motion Hearing set for 1/13/2014 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

11/04/2013

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. (Entered: 11/01/2013)
423 ORDER DENYING 401 PLAINTIFFS' MOTION TO COMPEL ENTRY ONTO DESIGNATED LAND AND SITE INSPECTION OF SAGUARO CORRECTIONAL CENTER. Signed by Judge BARRY M. KURREN on 11/1/2013. Follows 413 oral order of 10/25/2013. (ecs, )

CERTIFICATE OF SERVICE

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 (Entered: 11/04/2013)

11/04/2013

ADVISORY ENTRY re proposed order in entry docket number 419 MOTION for Leave to File Excess Pages /Word Limit on Their Concise Statement of Facts in Support of Their Motion for Partial Summary Judgment filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha. if the filer has not already done so, a proposed order may be submitted by email to for signature. The filer may refer to LR100.8.1 − Proposed Orders, LR100.8.2 − Emailing of Proposed Orders and Stipulations and LR100.8.3 − E−mail addresses for order and stipulation submission to Chambers (ecs, ) (Entered: 11/04/2013)

11/04/2013

424 ORDER ON PLAINTIFFS' MOTION FOR LEAVE TO EXCEED PAGE/WORD LIMIT ON THEIR CONCISE STATEMENT OF FACTS IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT re: 419 ~ Motion is GRANTED ~ Signed by JUDGE LESLIE E. KOBAYASHI on 11/4/2013. (afc)

CERTIFICATE OF SERVICE

11/13/2013

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 (Entered: 11/04/2013)
425 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Sixth Set of Request for Admissions to Defendant Corrections Corporation of America; Exhibits "39"−"72" (Manley, Sharla) (Entered: 11/13/2013)

11/14/2013

426 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs Richard Davis et al.'s Fifth Request for Admissions to Defendant Ted Sakai, in his official capacity as Director of the Hawaii Department of Public Safety; Exhibits 1−3 (Sprenger, Andrew) (Entered: 11/14/2013)

11/22/2013

427 TRANSCRIPT of Proceedings held on October 25, 2013, − before Judge Kurren. Court Reporter/Transcriber Jessica Cahill, Telephone number (808−244−0776) (maukele@hawaii.rr.com). Transcript may be viewed at the court public terminal or ordered through the Court Reporter/Transcriber before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 54 of 98

11/22/2013
11/27/2013 12/06/2013 12/11/2013
12/13/2013 12/13/2013 12/17/2013 12/20/2013 12/20/2013
12/20/2013 12/20/2013 12/20/2013 12/23/2013

5.2(a),FRCrP 49.1(a) and FRBP 9037(a) Redaction Request due 12/10/2013. Redacted Transcript Deadline set for 12/20/2013. Release of Transcript Restriction set for 2/17/2014. (Cahill, Jessica) (Entered: 11/22/2013)
428 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Seventh Set of Request for Admissions to Defendant Corrections Corporation of America; Exhibits "1"−"2" (Ley, Leinaala) (Entered: 11/22/2013)
429 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's First Supplemental Response to Plaintiffs' Sixth Request for Production of Documents (Guzman, Jamie) (Entered: 11/27/2013)
430 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's 1st Supplemental Response to Plaintiffs' Fourth Requests for Admission (Guzman, Jamie) (Entered: 12/06/2013)
431 MOTION to Withdraw as Attorney Andrew B. Sprenger appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Andrew B. Sprenger, # 2 Certificate of Service)(Sprenger, Andrew) (Entered: 12/11/2013)
432 CERTIFICATE OF SERVICE by Ted Sakai − Defendant Sakai's Responses to Plaintiffs' Fifth Set of Requests for Admission (Guzman, Jamie) (Entered: 12/13/2013)
433 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Responses to Plaintiffs' Sixth Set of Requests for Admission (Guzman, Jamie) (Entered: 12/13/2013)
434 ORDER granting 431 Motion to Withdraw as Attorney. Attorney Andrew B. Sprenger terminated. Signed by Judge BARRY M. KURREN on 12/17/2013. (KURREN, BARRY)No COS issued for this docket entry (Entered: 12/17/2013)
435 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Responses to Plaintiffs' Seventh Requests for Admission (Guzman, Jamie) (Entered: 12/20/2013)
436 MEMORANDUM in Opposition to 361 Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary Judgment filed by Robert A. Holbron. (Attachments: # 1 Memorandum, # 2 Certificate of Word Count, # 3 Separate Concise Counterstatement, # 4 Declaration of Holbron, # 5 Declaration of Sharla Manley, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10, # 16 Exhibit 11, # 17 Exhibit 12, # 18 Exhibit 13, # 19 Exhibit 14, # 20 Exhibit 15, # 21 Exhibit 16, # 22 Declaration Tengan, # 23 Declaration Subia, # 24 Declaration Woodford, # 25 Certificate of Service)(Manley, Sharla) Modified on 12/23/2013 (emt, ). (Entered: 12/20/2013)
437 MOTION to Seal Document Exhibits 6 − 8 Sharla Ann Manley appearing for Plaintiff Robert A. Holbron (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate of Service)(Manley, Sharla) (Entered: 12/20/2013)
438 MOTION for Leave to File Excess Pages Word Limit Sharla Ann Manley appearing for Plaintiff Robert A. Holbron (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Manley, Sharla) (Entered: 12/20/2013)
439 MOTION for Leave to File Amicus Brief James J. Bickerton appearing for Amicus HUY (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(Bickerton, James) (Entered: 12/20/2013)
440 MOTION for Leave to File Excess Pages Defendants Motion for Leave to Exceed Page/Word Limit on Defendants Concise Statement of Facts in Support of Defendants Response to Plaintiffs Motion for Summary Judgment David Lewis appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Exhibit Proposed Order)(Lewis, David) (Entered: 12/23/2013)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 55 of 98

12/23/2013 12/23/2013

441 RESPONSE in Opposition re 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum of Points and Authorities in Support of Defendants Response to Plaintiffs Motion for Partial Summary Judgment [Doc. 417], # 2 Concise Statement of Facts in Support of Response to Plaintiffs Motion for Partial Summary Judgment, # 3 Declaration of David C. Lewis, # 4 Exhibit 1 to Declaration of David C. Lewis, # 5 Exhibit 2 to Declaration of David C. Lewis, # 6 Exhibit 3 to Declaration of David C. Lewis, # 7 Exhibit 4 to Declaration of David C. Lewis, # 8 Exhibit 5 to Declaration of David C. Lewis, # 9 Certificate of Word Count for Concise Statement of Facts, # 10 Certificate of Word Count for Memorandum of Points and Authorities in Support of Defendants Response, # 11 Certificate of Service)(Lewis, David) Modified on 12/24/2013 (emt, ). (Entered: 12/23/2013)
442 ORDER DENYING PLAINTIFF ROBERT HOLBRON'S MOTION FOR LEAVE TO EXCEED PAGE/WORD LIMIT ON THE SEPARATE CONCISE COUNTER−STATEMENT OF FACT IN SUPPORT OF PLAINTIFF ROBERT HOLBRON'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND COUNTER−MOTION FOR SUMMARY JUDGMENT ON HIS FEDERAL CLAIMS 440 438 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/23/2013. (afc)

CERTIFICATE OF SERVICE

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
Docket text modified on 12/27/2013 to reference the correct motion, that is, docket entry no. 438 . (afc). (Entered: 12/23/2013)

12/23/2013

443 ORDER GRANTING PLAINTIFFS' MOTION TO FILE UNDER SEAL EXHIBITS "6" "8" IN SUPPORT OF PLAINTIFF ROBERT HOLBRON'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND COUNTER−MOTION FOR SUMMARY JUDGMENT 437 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/23/2013. (afc)

CERTIFICATE OF SERVICE

12/23/2013

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 (Entered: 12/23/2013)
444 MOTION to Remand to State Court Leinaala L. Ley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Certificate of Service)(Ley, Leinaala) (Entered: 12/23/2013)

12/23/2013 445 MOTION for Leave to File Excess Pages Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Manley, Sharla) (Entered: 12/23/2013)

12/23/2013 12/23/2013

446 MEMORANDUM in Opposition to Defendants' Motion for Summary Judgment re 361 filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Manley, Sharla) Modified on 12/24/2013 to add linkage to 361 Motion for Summary Judgment (emt, ). (Entered: 12/23/2013)
447 CONCISE STATEMENT in Opposition re 361 MOTION for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Declaration of Richard Davis, # 2 Exhibit A, # 3 Exhibit B (RESTRICTED) , # 4 Exhibit C, # 5 Exhibit D, # 6 Declaration of Tyrone Galdones, # 7 Declaration of Michael Hughes, # 8 Exhibit A, # 9 Exhibit B (RESTRICTED) , # 10 Declaration of Damien Kaahu, # 11 Declaration of James Kane III, # 12 Exhibit A, # 13 Exhibit B, # 14 Exhibit C, # 15 Exhibit D, # 16 Declaration of Ellington Keawe, # 17 Exhibit A, # 18 Exhibit B, # 19 Exhibit C, # 20 Declaration of Rosemary Maxey, # 21 Declaration of Sharla Manley, # 22 Exhibit 1, # 23 Exhibit 2, # 24 Exhibit 3, # 25 Exhibit 4, # 26 Exhibit 5, # 27 Exhibit 6, # 28 Exhibit 7, # 29 Exhibit 8)(Manley, Sharla) Modified on 12/30/2013 to restrict viewing to
Exhibit B to the Declaration of Richard Davis and Exhibit B to the Declaration of Michael Hughes. The

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 56 of 98

12/23/2013 12/23/2013
12/23/2013 12/23/2013 12/23/2013 12/23/2013 12/23/2013

filing party has submitted redacted exhibits; refer to docket entry 459 . (emt, ). (Entered: 12/23/2013)
448 ADDITIONAL SUBMISSION OF EXHIBITS "9"−"22" to 447 Separate and Concise Statement Facts in Opposition to 361 Defendants' MOTION for Summary Judgment to Plaintiffs Separate Concise Statement of Facts in Opposition to Defendants Motion for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15, # 8 Exhibit 16, # 9 Exhibit 17, # 10 Exhibit 18, # 11 Exhibit 19, # 12 Exhibit 20, # 13 Exhibit 21, # 14 Exhibit 22)(Manley, Sharla) Modified on 12/24/2013 to ad linkage to 447 Concise Statement; modified docket text (emt, ). (Entered: 12/23/2013)
449 ADDITIONAL SUBMISSION OF EXHIBITS "23"−"75" to 447 Separate and Concise Statement of Facts in Opposition to 361 Defendants' MOTION for Summary Judgment to Plaintiffs Separate Concise Statement of Facts in Opposition to Defendants Motion for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Exhibit 23, # 2 Exhibit 24, # 3 Exhibit 25, # 4 Exhibit 26, # 5 Exhibit 27, # 6 Exhibit 28, # 7 Exhibit 29, # 8 Exhibit 30, # 9 Exhibit 31, # 10 Exhibit 32, # 11 Exhibit 33, # 12 Exhibit 34, # 13 Exhibit 35, # 14 Exhibit 36, # 15 Exhibit 37, # 16 Exhibit 38, # 17 Exhibit 39, # 18 Exhibit 40, # 19 Exhibit 41, # 20 Exhibit 42, # 21 Exhibit 43, # 22 Exhibit 44, # 23 Exhibit 45, # 24 Exhibit 46, # 25 Exhibit 47, # 26 Exhibit 48, # 27 Exhibit 49, # 28 Exhibit 50, # 29 Exhibit 51, # 30 Exhibit 52, # 31 Exhibit 53, # 32 Exhibit 54, # 33 Exhibit 55, # 34 Exhibit 56, # 35 Exhibit 57, # 36 Exhibit 58, # 37 Exhibit 59, # 38 Exhibit 60, # 39 Exhibit 61, # 40 Exhibit 62, # 41 Exhibit 63, # 42 Exhibit 64, # 43 Exhibit 65, # 44 Exhibit 66, # 45 Exhibit 67, # 46 Exhibit 68, # 47 Exhibit 69, # 48 Exhibit 70, # 49 Exhibit 71, # 50 Exhibit 72, # 51 Exhibit 73, # 52 Exhibit 74, # 53 Exhibit 75)(Manley, Sharla) Modified on 12/24/2013 to add linkage to 447 Concise Statement; docket text modified (emt, ). (Entered: 12/23/2013)
450 ADDITIONAL SUBMISSION OF EXHIBITS "76"−"86" to 447 Separate Concise Statement of Facts in Opposition to 361 Defendants' MOTION for Summary Judgment to Plaintiffs Separate Concise Statement of Facts in Opposition to Defendants' Motion for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Exhibit 76, # 2 Exhibit 77, # 3 Exhibit 78, # 4 Exhibit 79, # 5 Exhibit 80, # 6 Exhibit 81, # 7 Exhibit 82, # 8 Exhibit 83, # 9 Exhibit 84, # 10 Exhibit 85, # 11 Exhibit 86, # 12 Declaration of Ty Tengan, # 13 Exhibit A, # 14 Declaration of Richard Subia, # 15 Exhibit A, # 16 Exhibit B, # 17 Declaration of Jeanne Woodford, # 18 Exhibit A, # 19 Exhibit B, # 20 Certificate of Service)(Manley, Sharla) Modified on 12/24/2013 to add linkage to 447 Concise Statement; modified docket text (emt, ). . (Entered: 12/23/2013)
451 MOTION for Leave to File Excess Pages on Plaintiffs Separate Concise Statement of Facts in Opposition to Defendants Motion for Summary Judgment Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Manley, Sharla) (Entered: 12/23/2013)
452 AMENDED MEMORANDUM of Points and Authorities in Support of 436 Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary Judgment Amended Memorandum of Points and Authorities in Support of Plantiff Robert Holbron's Opposition to Defendants' Motion for Summary Judgment and Counter−Motion for Summary Judgment on his Claims filed by Robert A. Holbron. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Manley, Sharla) Modified on 12/24/2013 (emt, ). Modified on 12/27/2013: filing
event modified to Motion for SJ (afc). (Entered: 12/23/2013)
453 CONCISE STATEMENT of Facts re 436 Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary Judgment AMENDED Separate Concise Counter−Statement of Facts filed by Robert A. Holbron. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Manley, Sharla) (Entered: 12/23/2013)
485 SEALED EXHIBIT "6" in Support of Plaintiff Robert Holbron's Opposition to Defendants' Motion for Summary Judgment and Counter−Motion for Summary Judgment, Filed December 20, 2013 − filed by Richard Kapela Davis, Tyrone K. N.

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 57 of 98

12/23/2013 12/23/2013 12/24/2013
12/24/2013 12/26/2013 12/27/2013 12/27/2013 12/27/2013

Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (ATTACHMENT SEALED) Related document: 436
Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary
Judgment filed by Robert A. Holbron. (ecs, ) (Entered: 01/15/2014)
487 SEALED EXHIBIT "7" in Support of Plaintiff Robert Holbron's Opposition to Defendants' Motion for Summary Judgment and Counter−Motion for Summary Judgment, Filed December 20, 2013 − filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (ATTACHMENT SEALED) Related document: 436
Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary
Judgment filed by Robert A. Holbron.(ecs, ) (Entered: 01/15/2014)
488 SEALED EXHIBIT "8" in Support of Plaintiff Robert Holbron's Opposition to Defendants' Motion for Summary Judgment and Counter−Motion for Summary Judgment, Filed December 20, 2013 − filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (ATTACHMENT SEALED) Related document: 436
Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary
Judgment filed by Robert A. Holbron.(ecs, ) (Entered: 01/15/2014)
ADVISORY ENTRY. Please be advised that Exhibit B to the Declaration of Richard Davis and
Exhibit B to the Declaration of Michael Hughes to docket entry 447 Concise Statement of Facts in Opposition to Motion for Summary Judgment filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Richard Kapela Davis contains personal identifiers. The filing party may refer to LR100.10.1. Personal Identifiers, LR100.10.2. Redaction/Reference List and LR100.10.3. Responsibility of Counsel. The filing party may submit a redacted version of these exhibits (please ensure that any submission is accompanied by a cover sheet, bearing counsel identification, case number and a caption). Upon the submission of any such redaction, the Clerks Office will restrict
viewing to the affected exhibits contained in the Concise Statement, ECF No. 447 . (emt, ) (Entered: 12/24/2013)
454 RESPONSE in Opposition re 451 MOTION for Leave to File Excess Pages on Plaintiffs Separate Concise Statement of Facts in Opposition to Defendants Motion for Summary Judgment, 445 MOTION for Leave to File Excess Pages Defendants Opposition to Plaintiffs Motion for Leave to Exceed and Motion for Extension of Time to File Reply in Support of Defendants Motion for Summary Judgment filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 12/24/2013)
455 RESPONSE to Motion re 361 MOTION for Summary Judgment to Defendants' Motion for an Extension of Time to File Reply in Support of Defendants' Motion for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 12/26/2013)
456 Declaration re 436 Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary Judgment Submission of Original Declaration of Robert Holbron. (Attachments: # 1 Declaration of Robert Holbron, # 2 Certificate of Service)(Manley, Sharla) (Entered: 12/27/2013)
457 RESPONSE in Opposition re 439 MOTION for Leave to File Amicus Brief filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Lewis, David) (Entered: 12/27/2013)
458 EO: terminating 436 Motion for Summary Judgment. Duplicate of 452 . (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 12/27/2013)

12/27/2013

459 REDACTION to 447 Concise Statement in Opposition to Motion,,, Submission of Redacted Exhibits to the Declaration of Richard Davis and to the Declaration of Michael Hughes by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe. (Attachments: # 1 Exhibit B (Davis), # 2 Exhibit B (Hughes), # 3 Certificate of Service)(Manley, Sharla) (Entered:

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 58 of 98

12/27/2013

12/27/2013)
460 EO: COURT ORDER RE PLAINTIFFS' MOTION TO REMAND STATE LAW CLAIMS.denying 444 Motion to Remand to State Court; DOP=12/27/2013. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 12/27/2013)

12/27/2013

461 EO: COURT ORDER RE THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT.denying 445 Motion for Leave to File Excess Pages; denying 451 Motion for Leave to File Excess Pages; 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 452 COUNTER−MOTION for Summary Judgment on Defendants' Claims, 361 MOTION for Summary Judgment , 454 Response in Opposition to Motion ; re 454 Response in Opposition to Motion, granted in part and denied in part. Motion Hearing ALL set for 1/27/2014 at 11:00 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

12/27/2013

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 (Entered: 12/27/2013)
462 EO: COURT ORDER RE HUY'S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS' OPPOSITION TO SUMMARY JUDGMENT. granting 439 Motion for Leave to File. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

01/06/2014 01/06/2014
01/06/2014 01/06/2014

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 (Entered: 12/27/2013)
463 MEMORANDUM in Opposition re 361 MOTION for Summary Judgment (Amicus Brief in Support of Plaintiffs' Opposition) filed by HUY. (Attachments: # 1 Certificate of Service)(Bickerton, James) (Entered: 01/06/2014)
464 Defendants' AMENDED CONCISE STATEMENT of Facts and Statement of Additional Facts in Support of Their Response to Plaintiffs' Motion for Partial Summary Judgment [Doc 417 ]. re 454 Response in Opposition to Motion,, 461 Order on Motion for Leave to File Excess Pages, AMENDED Concise Statement of Facts in Support of Defendants' Response to Plaintiffs' Motion for Partial Summary Judgment filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Declaration David C. Lewis, # 2 Exhibit 1 − Lewis Declaration, # 3 Exhibit 2 − Lewis Declaration, # 4 Exhibit 3 − Lewis Declaration, # 5 Exhibit 4 − Lewis Declaration, # 6 Exhibit 5 − Lewis Declaration, # 7 Certificate of Word Count, # 8 Certificate of Service)(Lewis, David) Modified docket text to correspond to document title on 1/7/2014 (ecs, ). (Entered: 01/06/2014)
465 MEMORANDUM in Opposition re 361 MOTION for Summary Judgment AMENDED Joint Opposition to Defendants Motion for Summray Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Manley, Sharla) Modified text (bold) on 1/7/2014 (ecs, ). (Entered: 01/06/2014)
466 Concise Statement in Opposition re 361 MOTION for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration of Richard Davis, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Declaration of Tyrone Galdones, # 7 Declaration of Michael Hughes, # 8 Exhibit A, # 9 Exhibit B, # 10 Declaration of Damien Kaahu, # 11 Declaration of James Kane III, #

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 59 of 98

01/06/2014 01/06/2014 01/06/2014
01/06/2014 01/06/2014 01/08/2014

12 Exhibit A, # 13 Exhibit B, # 14 Exhibit C, # 15 Exhibit D, # 16 Declaration of Ellington Keawe, # 17 Exhibit A, # 18 Exhibit B, # 19 Exhibit C, # 20 Declaration of Kalai Poaha, # 21 Declaration of Rosemary Maxey, # 22 Declaration of Sharla Manley, # 23 Exhibit 1, # 24 Exhibit 2, # 25 Exhibit 3, # 26 Exhibit 4, # 27 Exhibit 5)(Manley, Sharla) (Entered: 01/06/2014)
467 Additional Exhibits to 361 MOTION for Summary Judgment Exhibits "6" − "17" filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11, # 7 Exhibit 12, # 8 Exhibit 13, # 9 Exhibit 14, # 10 Exhibit 15, # 11 Exhibit 16, # 12 Exhibit 17)(Manley, Sharla) (Entered: 01/06/2014)
468 Additional Exhibits to 361 MOTION for Summary Judgment Exhibits "18"−"42" filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 18, # 2 Exhibit 19, # 3 Exhibit 20, # 4 Exhibit 21, # 5 Exhibit 22, # 6 Exhibit 23, # 7 Exhibit 24, # 8 Exhibit 25, # 9 Exhibit 26, # 10 Exhibit 27, # 11 Exhibit 28, # 12 Exhibit 29, # 13 Exhibit 30, # 14 Exhibit 31, # 15 Exhibit 32, # 16 Exhibit 33, # 17 Exhibit 34, # 18 Exhibit 35, # 19 Exhibit 36, # 20 Exhibit 37, # 21 Exhibit 38, # 22 Exhibit 39, # 23 Exhibit 40, # 24 Exhibit 41, # 25 Exhibit 42)(Manley, Sharla) (Entered: 01/06/2014)
469 Additional Exhibits to 361 MOTION for Summary Judgment Exhibit "43"−"78" filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 43, # 2 Exhibit 44, # 3 Exhibit 45, # 4 Exhibit 46, # 5 Exhibit 47, # 6 Exhibit 48, # 7 Exhibit 49, # 8 Exhibit 50, # 9 Exhibit 51, # 10 Exhibit 52, # 11 Exhibit 53, # 12 Exhibit 54, # 13 Exhibit 55, # 14 Exhibit 56, # 15 Exhibit 57, # 16 Exhibit 58, # 17 Exhibit 59, # 18 Exhibit 60, # 19 Exhibit 61, # 20 Exhibit 62, # 21 Exhibit 63, # 22 Exhibit 64, # 23 Exhibit 65, # 24 Exhibit 66, # 25 Exhibit 67, # 26 Exhibit 68, # 27 Exhibit 69, # 28 Exhibit 70, # 29 Exhibit 71, # 30 Exhibit 72, # 31 Exhibit 73, # 32 Exhibit 74, # 33 Exhibit 75, # 34 Exhibit 76, # 35 Exhibit 77, # 36 Exhibit 78)(Manley, Sharla) (Entered: 01/06/2014)
470 Additional Exhibits to 361 MOTION for Summary Judgment Exhibits "79"−"84", "AA" filed by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 79, # 2 Exhibit 80, # 3 Exhibit 81, # 4 Exhibit 82, # 5 Exhibit 83, # 6 Exhibit 84, # 7 Exhibit AA (Refer to Corrected Exh AA filed in 490 , # 8 Declaration of Ty Tengan, # 9 Exhibit A, # 10 Declaration of Richard Subia, # 11 Exhibit A, # 12 Exhibit B, # 13 Declaration of Jeanne Woodford, # 14 Exhibit A, # 15 Exhibit B, # 16 Certificate of Word Count, # 17 Certificate of Service)(Manley, Sharla) Modified on 1/23/2014 (ecs, ). (Entered: 01/06/2014)
471 REQUEST Judicial Notice by Richard Kapela Davis, Tyrone K. N. Galdones, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration of Leinaala Ley, # 2 Exhibit AA (Refer to Corrected Exh AA filed in 490 , # 3 Certificate of Service)(Ley, Leinaala) Modified on 1/23/2014 (ecs, ). (Entered: 01/06/2014)
472 ORDER DENYING PLAINTIFFS' MOTION TO REMAND STATE LAW CLAIMS 444 . Related: 460 Order on Motion to Remand to State Court. Signed by JUDGE LESLIE E. KOBAYASHI on 1/8/2014. (ecs, )

CERTIFICATE OF SERVICE

01/10/2014

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 (Entered: 01/08/2014)
473 EO: Regarding 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 452 COUNTER−MOTION for Summary Judgment on Defendants' Claims, 361 MOTION for Summary Judgment . Motion Hearing set for 1/27/2014 at 11:00 AM is moved to 03:30 PM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 60 of 98

CERTIFICATE OF SERVICE

01/13/2014

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 (Entered: 01/10/2014)
474 EO: Regarding 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 452 COUNTER−MOTION for Summary Judgment on Defendants' Claims, 361 MOTION for Summary Judgment . Motion Hearing set for 1/27/2014 AT 03:30 PM is moved up to 03:15 PM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

01/13/2014 01/13/2014

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 (Entered: 01/13/2014)
475 MEMORANDUM re 463 Memorandum in Opposition to Motion −− Defendants' Opposition to Amicus Brief filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum Memorandum in Opposition to Amicus Brief, # 2 Certificate of Service)(Lewis, David) Modified docket text on 1/14/2014 (ecs, ). (Entered: 01/13/2014)
476 REPLY In Support of Plaintiffs' Motion for Partial Summary Judgment filed by Richard Kapela Davis. (Manley, Sharla) (Entered: 01/13/2014)

01/13/2014 01/13/2014 01/13/2014

477 NOTICE by Richard Kapela Davis Certificate of Word Count Richard Kapela Davis. (Manley, Sharla) (Entered: 01/13/2014)
478 CERTIFICATE OF SERVICE by Richard Kapela Davis (Manley, Sharla) (Entered: 01/13/2014)
479 EO: COURT ORDER GRANTING PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE. Re 471 Request. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

01/13/2014 01/13/2014

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 (Entered: 01/13/2014)
480 EO: Regarding Oral Argument currently set for 1/27/2014 at 03:15 PM before Judge Leslie E. Kobayashi on: 361 417 452 Defendants' Motion for Summary Judgment; Defendants' Motion for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"); Plaintiff Robert Holbron's Counter−Motion for Summary Judgment on His Federal Claims Please be informed that there are time limitations on the Oral argument. 15 minutes per side, and 5 minutes for movant in rebuttal. (JUDGE LESLIE E. KOBAYASHI)(gab, )No COS issued for this docket entry (Entered: 01/13/2014)
481 EO: Re 480 Minute Order. Typographical error corrected. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

01/13/2014

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 (Entered: 01/13/2014)
482 RESPONSE in Opposition re 452 COUNTER−MOTION for Summary Judgment on Defendants' Claims, 436 Opposition to Defendants' Motion for Summary Judgment and COUNTER−MOTION for Summary Judgment filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum of Points and Authorities in Support of Defendants Response/Reply, # 2 Defendants Concise Statement of Facts and Statement of Additional Facts, # 3 Declaration of David C. Lewis, # 4 Exhibit 1 to Declaration of David C. Lewis, # 5 Exhibit 2 to Declaration of David C. Lewis, # 6 Exhibit 3 to Declaration of David C. Lewis, # 7 Exhibit 4 to Declaration of David C. Lewis, # 8 Exhibit 5 to to Declaration of David C. Lewis, # 9 Exhibit 6 to Declaration

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 61 of 98

01/13/2014
01/15/2014 01/15/2014

of David C. Lewis, # 10 Exhibit 7 to Declaration of David C. Lewis, # 11 Exhibit 8 to Declaration of David C. Lewis, # 12 Declaration of Warden Thomas, # 13 Certificate of Word Count − Memorandum, # 14 Certificate of Word Count − Concise Statement of Facts, # 15 Certificate of Service)(Lewis, David) (Entered: 01/13/2014)
483 REPLY re 361 MOTION for Summary Judgment Defendants Reply in Support of Motion for Summary Judgment (Doc. 361) filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum of Points and Authorities in Support of Defendants Reply, # 2 Defendants' Concise Statement of Facts, # 3 Declaration of David C. Lewis, # 4 Exhibit 1 to Declaration of David C. Lewis, # 5 Exhibit 2 to Declaration of David C. Lewis, # 6 Exhibit 3 to Declaration of David C. Lewis, # 7 Exhibit 4 to Declaration of David C. Lewis, # 8 Exhibit 5 to Declaration of David C. Lewis, # 9 Exhibit 6 to Declaration of David C. Lewis, # 10 Declaration of Warden Thomas, # 11 Exhibit A to Declaration of Warden Thomas, # 12 Exhibit B to Declaration of Warden Thomas, # 13 Exhibit C to Declaration of Warden Thomas, # 14 Exhibit D to Declaration of Warden Thomas, # 15 Exhibit E to Declaration of Warden Thomas, # 16 Exhibit F to Declaration of Warden Thomas, # 17 Declaration Declaration of Warden Stolc, # 18 Certificate of Word Count − Memorandum, # 19 Certificate of Word Count − Concise Statement of Facts, # 20 Certificate of Service)(Lewis, David) Modified on 1/14/2014 (ecs, ). (Entered: 01/13/2014)
484 MOTION to Strike Defendants' Supplemental Concise Statement of Facts in support of Motion for Summary Judgment − Sharla Ann Manley appearing for Plaintiff Richard Kapela Davis (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Service)(Manley, Sharla) 361 Linked to underlying motion, docket text added on 1/16/2014 (ecs, ). . (Entered: 01/15/2014)
486 NOTICE of Hearing on Motion 484 MOTION to Strike Defendants' Supplemental Concise Statement of Facts : Motion Hearing set for 1/27/2014 at 03:15 PM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

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. (Entered: 01/15/2014)

01/17/2014

489 REPLY In Support of Robert Holbron's 452 Counter−Motion for Summary Judgment on His Federal Claims filed by Richard Kapela Davis. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Manley, Sharla) Link created to Counter−Motion on 1/21/2014 (ecs, ). (Entered: 01/17/2014)

01/22/2014 490 Errata re Exhibit AA. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Certificate of Service)(Ley, Leinaala) (Entered: 01/22/2014)

01/24/2014

491 RESPONSE in Opposition re 484 MOTION to Strike Defendants' Supplemental Concise Statement of Facts in Support of Motion for Summary Judgment filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 01/24/2014)

01/27/2014

492 REPLY to Response to Motion re 484 MOTION to Strike Defendants' Supplemental Concise Statement of Facts in Support of Motion for Summary Judgment filed by Richard Kapela Davis. (Attachments: # 1 Declaration, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Response, # 5 Certificate of Service)(Manley, Sharla) (Entered: 01/27/2014)

01/27/2014 493 Errata Amended Separate Concise Counter−Statement. (Attachments: # 1 Certificate of Service)(Manley, Sharla) 452 453 Modified to link on 1/30/2014 (ecs, ). (Entered: 01/27/2014)

01/27/2014 494 OBJECTION filed by Robert A. Holbron. (Attachments: # 1 Certificate of Service)(Manley, Sharla) 452 482 Modified on 1/30/2014 (ecs, ). (Entered: 01/27/2014)

01/27/2014

495 EP: Motion Hearing held on 1/27/2014 re 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron,

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 62 of 98

Richard Kapela Davis, Kalai K. Poaha, 361 MOTION for Summary Judgment filed by Ted Sakai, Neil Abercrombie, Corrections Corporation of America, 452 COUNTER−MOTION for Summary Judgment on Defendants' Claims filed by Robert A. Holbron, 484 MOTION to Strike Defendants' Supplemental Concise Statement of Facts in Support of Motion for Summary Judgment filed by Richard Kapela Davis. Motions Taken Under Advisement: 417 MOTION for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 361 MOTION for Summary Judgment , 452 COUNTER−MOTION for Summary Judgment on Defendants' Claims, 484 MOTION to Strike Defendants' Supplemental Concise Statement of Facts in Support of Motion for Summary Judgment. (Court Reporter Cynthia Ott.) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

03/20/2014

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 (Entered: 01/27/2014)
496 EO: COURT ORDER DENYING PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' SUPPLEMENTAL CONCISE STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT. denying 484 Motion to Strike. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 03/20/2014)

03/31/2014

497 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF ROBERT HOLBRON'S COUNTER−MOTION FOR SUMMARY JUDGMENT ON HIS CLAIMS; AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS AS TO THEIR CLAIMS UNDER THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT re 361 ; 417 ; 452 . Signed by JUDGE LESLIE E. KOBAYASHI on 03/31/2014.

−− Defendants; Motion for Summary Judgment, filed July 31, 2013, is HEREBY GRANTED IN
PART AND DENIED IN PART, Plaintiffs' Motion for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act, filed October 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART, and Plaintiff Robert Holbron's Counter−Motion for Summary Judgment on His Claims, filed December 23, 2013, is HEREBY DENIED WITHOUT PREJUDICE.
The motions are DENIED WITHOUT PREJUDICE as to: 1) any claims seeking damages and any claims seeking retrospective equitable relief; 2) any claims seeking prospective declaratory and injunctive relief regarding Red Rock; 3) Plaintiff Poaha's claims seeking prospective declaratory and injunctive relief regarding Saguaro; 4) Plaintiff Holbron's claims seeking prospective declaratory and injunctive relief regarding restricted custody at Saguaro; and 5) Plaintiff Galdones's request for prospective declaratory and injunctive relief as to his state law retaliation claim.
This Court set forth all of its rulings regarding Plaintiffs' Motion supra Discussion section II.F, and this
Court set forth all of its rulings regarding Defendants' Motion supra Discussion section III.F. (eps)

CERTIFICATE OF SERVICE

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 (Entered: 03/31/2014)

04/08/2014

498 Second MOTION to Certify Class and Request for Rule 16 Conference Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Supplement Certificate of Word Count, # 3 Certificate of Service)(Manley, Sharla) (Entered: 04/08/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 63 of 98

04/08/2014 499 NOTICE of Hearing on Motion 498 Second MOTION to Certify Class and Request for Rule 16 Conference : Motion Hearing set for 6/30/2014 at 10:30 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

04/14/2014 04/14/2014

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. (Entered: 04/08/2014)
500 MOTION for Reconsideration re 497 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Word Count, # 3 Certificate of Service)(Love, Rachel) (Entered: 04/14/2014)
501 EXHIBITS: Defendants' Exhibits for Plaintiffs' Motion for Preliminary Injunction returned to April Luria.(eps ) (Entered: 04/14/2014)

04/14/2014 04/15/2014

502 EXHIBITS for the Hearing on the Motion for Preliminary Injunction returned to Sharla Ann Manley.(eps) (Entered: 04/14/2014)
503 EO: COURT ORDER re 500 MOTION for Reconsideration re 497 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment . (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

04/16/2014 04/17/2014 04/18/2014

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 (Entered: 04/15/2014)
504 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Seventh Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 04/16/2014)
505 MOTION to Amend/Correct to File Third Amended Complaint Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Sharla Manley, # 3 Exhibit A part 1, # 4 Exhibit A part 2, # 5 Certificate of Service)(Manley, Sharla) (Entered: 04/17/2014)
506 MOTION to Stay re 498 Second MOTION to Certify Class and Request for Rule 16 Conference, 505 MOTION to Amend/Correct to File Third Amended Complaint , and Discovery Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Word Count, # 3 Certificate of Service)(Love, Rachel) (Entered: 04/18/2014)

04/18/2014 507 EO: Status Conference Re: Trial Setting set for 4/21/2014 at 10:00 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

04/21/2014

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 (Entered: 04/18/2014)
508 EP: Status Conference held on 4/21/2014; Supplemental Motion to Amend to be filed by 5/5/2014. Motion for Summary Judgment to be filed. Motion Hearing date of 7/7/2014 at 09:45 AM before Judge Leslie E. Kobayashi is reserved. Regarding 498 Second MOTION to Certify Class and Request for Rule 16 Conference. Motion Hearing set for 6/30/2014 at 10:30 AM is continued to 8/11/2014 09:45 AM before JUDGE LESLIE E. KOBAYASHI. Rule 16 Scheduling Conference held. New trial date and deadlines given. See separate Minutes.Denying 506 Motion to Stay; (Court Reporter Cynthia Ott.) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 64 of 98

04/21/2014

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 (Entered: 04/21/2014)
509 EP: Rule 16 Scheduling Conference held. New trial date and deadlines given. Discovery due by 7/29/2014. Final Pretrial Conference set for 8/18/2014 at 09:30 AM before JUDGE LESLIE E. KOBAYASHI. Jury Selection/Trial set for 09:00 AM on 9/30/2014 before JUDGE LESLIE E. KOBAYASHI. (Court Reporter Cynthia Ott) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

04/23/2014

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 (Entered: 04/21/2014)
510 AMENDED RULE 16 SCHEDULING ORDER:. Signed by JUDGE LESLIE E. KOBAYASHI on 04/23/2014. (eps)

CERTIFICATE OF SERVICE

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 (Entered: 04/23/2014)

04/28/2014

511 MEMORANDUM in Opposition re 500 MOTION for Reconsideration re 497 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 04/28/2014)

04/30/2014 512 NOTICE by Ted Sakai, Corrections Corporation of America Notice of Change of Attorney Status Ted Sakai, Corrections Corporation of America. (Love, Rachel) (Entered: 04/30/2014)

05/05/2014

513 SUPPLEMENT re 505 MOTION to Amend/Correct to File Third Amended Complaint filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha Supplemental Memorandum of Points and Authorities. (Attachments: # 1 Declaration Supplemental, # 2 Certificate of Service)(Manley, Sharla) (Entered: 05/05/2014)

05/06/2014 514 EO: COURT ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT. denying 505 Motion to Amend/Correct. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

05/08/2014

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 (Entered: 05/06/2014)
515 CERTIFICATE OF SERVICE by Richard Kapela Davis re Fourth Set of Interrogatories to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 05/08/2014)

05/09/2014

516 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Seventh Set of Requests for Production of Documents to Defendant Ted Sakai, in his Official Capacity as Director of the Hawaii Department of Public Safety (Manley, Sharla) (Entered: 05/09/2014)

05/09/2014

517 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Eighth Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 05/09/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 65 of 98

05/12/2014 05/13/2014 05/13/2014

518 REPLY to Response to Motion re 500 MOTION for Reconsideration re 497 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Word Count, # 3 Certificate of Service)(Love, Rachel) (Entered: 05/12/2014)
519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum of Points and Authorities, # 2 Concise Statement of Facts, # 3 Declaration of Rachel Love, # 4 Exhibit 1 to Declaration of Rachel Love, # 5 Declaration of Warden Todd Thomas, # 6 Certificate of Word Count for Defendants Memorandum of Points and Authorities, # 7 Certificate of Word Count for Defendants Concise Statement of Facts, # 8 Certificate of Service)(Love, Rachel) (Entered: 05/13/2014)
520 NOTICE of Hearing on Motion 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages : Motion Hearing set for 7/7/2014 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

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. (Entered: 05/13/2014)

05/15/2014

521 MOTION to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports Leinaala L. Ley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Leinaala Ley, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Declaration of Richard Subia, # 11 Certificate of Conferring in Good Faith, # 12 Certificate of Service)(Ley, Leinaala) (Entered: 05/15/2014)

05/16/2014 522 CERTIFICATE OF SERVICE by Corrections Corporation of America Defendant CCAs Response To Plaintiffs Seventh Set Of Requests For Production (Love, Rachel) (Entered: 05/16/2014)

05/20/2014 523 NOTICE of Hearing on 521 Plaintiff's Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports. Motion Hearing is set for 06/20/2014 at 10:00 a.m. before Judge BARRY M. KURREN. (bbb)

CERTIFICATE OF SERVICE

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. (Entered: 05/20/2014)

05/20/2014

524 Ex Parte MOTION to Expedite Hearing on Plaintiffs' Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports Leinaala L. Ley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Leinaala Ley, # 2 Certificate of Service)(Ley, Leinaala) (Entered: 05/20/2014)

05/21/2014

525 Declaration re 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages SIGNED Declaration of Warden T. Thomas filed at Doc. 519−05. (Attachments: # 1 Declaration of Warden Todd Thomas − SIGNED, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/21/2014)

05/23/2014

526 EO: The Court GRANTS 524 Plaintiffs' Ex Parte Motion for Expedited Hearing on Plaintiffs' Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports. The hearing on 521 Plaintiffs' Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports, which was set for 6/20/2014, is ADVANCED TO 6/5/2014 at 1:30PM before Judge Barry M. Kurren. The Opposition Memorandum is due 6/2/2014; arguments in Reply may be made orally at the hearing. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 66 of 98

05/30/2014 06/02/2014

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 (Entered: 05/23/2014)
527 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai for Defendants Eighth Supplemental Disclosure Statement (Love, Rachel) (Entered: 05/30/2014)
528 EO: A Discovery Conference Hearing is set for 06/05/2014 at 1:30 p.m. before Judge BARRY M. KURREN. (Judge BARRY M. KURREN)(bbb)

CERTIFICATE OF SERVICE

06/02/2014

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 (Entered: 06/02/2014)
529 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL RECONSIDERATION OF ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOC. 497) re 500 ; 497 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/02/2014.

−− Defendants' Motion for Partial Reconsideration of Order on Defendants' Motions for Summary
Judgment (Doc. 497), filed April 14, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. This Court will amend its Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron's Counter−Motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act, [filed 3/31/14 (dkt. no. 497 ),] to grant summary judgment in favor of Defendants on the claims as to which this Court granted reconsideration in the instant order. In addition, this Court DENIES Defendants' alternate request for leave to take an interlocutory appeal from the
amended version of the 3/31/14 Order. (eps)

CERTIFICATE OF SERVICE

06/02/2014 06/02/2014 06/03/2014 06/04/2014
06/04/2014

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 (Entered: 06/02/2014)
530 RESPONSE in Opposition re 521 MOTION to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration of Jamie D. Guzman, # 3 Exhibit A − Guzman Declaration, # 4 Certificate of Word Count, # 5 Certificate of Service)(Guzman, Jamie) (Entered: 06/02/2014)
531 MOTION to Seal Document 530 Response in Opposition to Motion, (Exhibit A to Guzman Declaration) Jamie Guzman appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Declaration Jamie Guzman, # 2 Certificate of Service)(Guzman, Jamie) (Entered: 06/02/2014)
534 NOTICE by Ted Sakai, Neil Abercrombie, Corrections Corporation of America re 530 Response in Opposition to Motion, 531 MOTION to Seal Document 530 Response in Opposition to Motion, (Exhibit A to Guzman Declaration) [Re: Notice of Lodging Under Seal Exhibit a to Defendants' 530 Opposition to Plaintiffs' 521 Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports (Filed June 2, 2014)] Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Luria, April) (Entered: 06/03/2014)
536 SUPPLEMENT re 521 MOTION to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha . (Attachments: # 1 Declaration Supplemental Declaration of Leina`ala L. Ley, # 2 Exhibit H, # 3 Exhibit I, # 4 Certificate of Service)(Ley, Leinaala) (Entered: 06/04/2014)
537 ORDER GRANTING DEFENDANTS' MOTION TO FILE UNDER SEAL EXHIBIT A TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' RENEWED MOTION TO COMPEL ENTRY ONTO DESIGNATED LAND AND MOTION FOR LEAVE TO

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 67 of 98

SUPPLEMENT EXPERT REPORTS (Doc. 521 ) 531 . Signed by Judge BARRY M. KURREN on 06/04/2014. (eps )

CERTIFICATE OF SERVICE

06/04/2014

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 (Entered: 06/04/2014)
538 EXHIBIT A TO DEFENDANTS' 530 OPPOSITION TO PLAINTIFFS' 521 RENEWED MOTION TO COMPEL ENTRY ONTO DESIGNATED LAND AND MOTION FOR LEAVE TO SUPPLEMENT EXPERTREPORTS (FILED JUNE 2, 2014) filed by Neil Abercrombie, Corrections Corporation of America, Ted Sakai. : ATTACHMENT SEALED pursuant to ECF No. 537 (eps ) (eps, ). (Entered: 06/04/2014)

06/05/2014

539 EP: Hearing held on 521 Plaintiff's Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports. Plaintiff's Motions are GRANTED. In addition, a Discovery Conference was held. Defendant is instructed to produce contract provisions related to the provision of religious programing. Plaintiff's counsel to prepare an Order. (C7F, 1:32−1:56AM.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

06/06/2014

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 (Entered: 06/05/2014)
540 CERTIFICATE OF SERVICE by Corrections Corporation of America (Defendant CCA's Responses to Plaintiffs' Fourth Set of Interrogatories) (Guzman, Jamie) (Entered: 06/06/2014)

06/09/2014 541 CERTIFICATE OF SERVICE by Corrections Corporation of America (Defendant CCA's Responses to Plaintiffs' Eighth Set of Requests for Production) (Guzman, Jamie) (Entered: 06/09/2014)

06/09/2014 06/10/2014
06/13/2014

542 CERTIFICATE OF SERVICE by Ted Sakai (Defendant Sakai's Responses to Plaintiffs' Seventh Set of Requests for Production) (Guzman, Jamie) (Entered: 06/09/2014)
543 NOTICE by Ted Sakai, Neil Abercrombie, Corrections Corporation of America re 530 Response in Opposition to Motion, 538 Additional Exhibits, [Re: Notice of Filed Under Seal 538 Exhibit A to Defendants' 530 Opposition to Plaintiffs' 521 Renewed Motion to Compel Entry onto Designated Land and Motion for Leave to Supplement Expert Reports (Lodged June 2, 2014, Filed under Seal June 4, 2014)] Ted Sakai, Neil Abercrombie, Corrections Corporation of America. (Luria, April) (Entered: 06/10/2014)
544 AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF ROBERT HOLBRON'S COUNTER−MOTION FOR SUMMARY JUDGMENT ON HIS CLAIMS; AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS AS TO THEIR CLAIMS UNDER THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT re 529

. Signed by JUDGE LESLIE E. KOBAYASHI on 06/13/2014.

−− Defendants' Motion for Summary Judgment, filed July 31, 2013, is HEREBY GRANTED IN PART
AND DENIED IN PART, Plaintiffs' Motion for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land Use and Institutionalized Persons Act, filed October 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART,and Plaintiff Robert Holbron's Counter−Motion for Summary Judgment on His Claims, filed December 23, 2013, is HEREBY DENIED WITHOUT PREJUDICE.

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 68 of 98

−− The motions are DENIED WITHOUT PREJUDICE as to: 1) any claims seeking damages and any claims seeking retrospective equitable relief; 2) Plaintiff Holbron's claims seeking prospective declaratory and injunctive relief regarding restricted custody at Saguaro; and 3) Plaintiff Galdones's request for prospective declaratory and injunctive relief as to his state law retaliation claim.
−−This Court set forth all of its rulings regarding Plaintiffs' Motion supra Discussion section II.F, and this Court set forth all of its rulings regarding Defendants' Motion supra Discussion section III.F.
(eps)

CERTIFICATE OF SERVICE

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 (Entered: 06/13/2014)

06/16/2014

545 MEMORANDUM in Opposition re 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 06/16/2014)

06/16/2014

546 CONCISE STATEMENT in Opposition re 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration of Sharla Manley, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21)(Manley, Sharla) (Entered: 06/16/2014)

06/16/2014

547 Additional Exhibits to 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages to Plaintiffs' Joint Separate Concise Statement of Facts in Opposition to Defendans' Motion for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 22 (part 1 of 3), # 2 Exhibit 22 (part 2 of 3), # 3 Exhibit 22 (part 3 of 3), # 4 Exhibit 23, # 5 Exhibit 24, # 6 Exhibit 25, # 7 Exhibit 26)(Manley, Sharla) (Entered: 06/16/2014)

06/16/2014

548 Additional Exhibits to 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages to Plaintiffs' Joint Separate Concise Statement of Facts in Opposition to Defendants' Motion for Summary Judgment filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Exhibit 27, # 2 Exhibit 28, # 3 Exhibit 29, # 4 Certificate of Word Count, # 5 Certificate of Service)(Manley, Sharla) (Entered: 06/16/2014)

06/19/2014 549 CERTIFICATE OF SERVICE by Richard Kapela Davis re Sixth Set of Interrogatories to Defendant Corrections Corporation of America (Ley, Leinaala) (Entered: 06/19/2014)

06/20/2014

550 EO: Defendants have requested an emergency telephonic hearing to resolve a discovery dispute concerning the timing of Plaintiffs' depositions. A hearing is unnecessary. The parties are hereby directed to meet and confer on the issues raised and reach an agreement on when the depositions are to be taken such that Defendants are afforded sufficient time to utilize the depositions in their response to the Motion for Class Certification. The Court will approve a request for a brief extension of time to respond to the class certification motion if one is required in light of the date selected for the depositions. (Judge BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE
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 (Entered: 06/20/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 69 of 98

06/20/2014 551 ORDER COMPELLING DEFENDANT CCA TO PRODUCE PORTIONS OF THEIR CONTRACTS WITH OTHER JURISDICTIONS. Signed by Judge BARRY M. KURREN on 06/20/2014. (eps)

CERTIFICATE OF SERVICE

06/23/2014 06/25/2014

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 (Entered: 06/20/2014)
553 REPLY to Response to Motion re 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Defendants' Response to Plaintiffs' Joint Separate Concise Statement of Facts Re: Defendants' Motion for Summary Judgment, # 3 Declaration Jamie D. Guzman, # 4 Exhibit A − Guzman Decl., # 5 Exhibit B − Guzman Decl., # 6 Exhibit C − Guzman Decl., # 7 Declaration Shari Kimoto, # 8 Certificate of Word Count − Memorandum, # 9 Certificate of Word County − Response to Plaintiffs' Joint Separate Statement of Facts, # 10 Certificate of Service)(Guzman, Jamie) (Entered: 06/23/2014)
555 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Notice of Deposition of Plaintiff Kalai Po'aha (Guzman, Jamie) (Entered: 06/25/2014)

06/30/2014

557 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Ninth Set of Requests for Production of Documents to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 06/30/2014)

06/30/2014 07/01/2014

558 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Eighth Set of Request for Admissions to Defendant Corrections Corporation of America (Manley, Sharla) (Entered: 06/30/2014)
559 ORDER GRANTING PLAINTIFFS' RENEWED MOTION TO COMPEL ENTRY ONTO DESIGNATED LAND AND MOTION FOR LEAVE TO SUPPLEMENT EXPERT REPORTS re 521 , re 539 .. Signed by Judge BARRY M. KURREN on 06/30/2014. (eps )

CERTIFICATE OF SERVICE

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 (Entered: 07/01/2014)

07/01/2014

560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum Amended, # 2 Certificate of Word Count, # 3 Certificate of Service)(Manley, Sharla) (Entered: 07/01/2014)

07/01/2014 561 NOTICE of Hearing on Motion 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION : Motion Hearing set for 8/11/2014 at 09:45 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

07/01/2014

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. (Entered: 07/01/2014)
562 EO: terminating 498 Motion to Certify Class. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE
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

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 70 of 98

07/02/2014
07/02/2014 07/03/2014 07/03/2014 07/03/2014
07/07/2014

mail on the date of this docket entry (Entered: 07/01/2014)
563 MOTION for Leave to File PUBLICLY EXHIBITS "44"−"55" IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Sharla Manley, # 2 Certificate of Service)(Manley, Sharla) (Entered: 07/02/2014)
564 CERTIFICATE OF SERVICE by Neil Abercrombie, Corrections Corporation of America, Ted Sakai [re Defendants' First Set of Interrogatories & Second Requests for Production of Documents to Plaintiffs (dated July 2, 2014)] (Luria, April) (Entered: 07/02/2014)
565 MOTION to Withdraw as Attorney as CO−COUNSEL OF RECORD Leinaala L. Ley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Leina`ala L. Ley, # 2 Certificate of Service)(Ley, Leinaala) (Entered: 07/03/2014)
566 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai Re: Defendants Notices of Deposition of Plaintiffs Kaahu, Keawe, Kane, Hughes, Holbron, Galdones, and Davis (Guzman, Jamie) (Entered: 07/03/2014)
567 MOTION to Strike 553 Reply to Response to Motion,, New Arguments and New Affidavit in Defendants' Reply Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Service)(Manley, Sharla) (Entered: 07/03/2014)
568 EP: Motion Hearing held on 7/7/2014 re 567 MOTION to Strike 553 Reply to Response to Motion,, New Arguments and New Affidavit in Defendants' Reply filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha, 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages filed by Ted Sakai, Corrections Corporation of America. Motions Taken Under Advisement: 567 MOTION to Strike 553 Reply to Response to Motion,, New Arguments and New Affidavit in Defendants' Reply, 519 MOTION for Summary Judgment Defendants Motion for Summary Judgment Re: Sovereign Immunity/Damages. (Court Reporter Cynthia Ott) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

07/07/2014

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 (Entered: 07/07/2014)
569 EO: The Court GRANTS 565 Plaintiff's Motion to Withdraw Leina`ala L. Ley as Attorney. (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

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 (Entered: 07/07/2014)

07/09/2014

571 CERTIFICATE OF SERVICE by Corrections Corporation of America re 551 Order − Written Order Following Oral Order on Motion,, Defendant CCA's Second Supplemental Response to Plaintiffs' Sixth Set of Requests for Production of Documents (Guzman, Jamie) (Entered: 07/09/2014)

07/09/2014

572 MOTION for Extension of Time to Complete Discovery Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Sharla Manley, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Certificate of Conferring in Good Faith, # 5 Certificate of Service)(Manley, Sharla)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 71 of 98

07/09/2014 07/10/2014

(Entered: 07/09/2014)
573 RESPONSE in Opposition re 563 MOTION for Leave to File PUBLICLY EXHIBITS "44"−"55" IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration Jamie D. Guzman, # 3 Exhibit A − Guzman Declaration, # 4 Exhibit B − Guzman Declaration, # 5 Declaration Warden Thomas, # 6 Certificate of Word Count, # 7 Certificate of Service)(Guzman, Jamie) (Entered: 07/09/2014)
575 EO: COURT ORDER DENYING PLAINTIFFS' MOTION TO STRIKE NEW ARGUMENTS AND NEW AFFIDAVIT IN DEFENDANTS' REPLY ON MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN IMMUNITY/DAMAGES. denying 567 Motion to Strike. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

07/10/2014 07/10/2014

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 (Entered: 07/10/2014)
576 First MOTION for Extension of Time to File Response/Reply as to 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Declaration of Rachel Love, # 2 Exhibit 1 to Declaration of Rachel Love, # 3 Certificate of Conferring in Good Faith, # 4 Certificate of Service)(Love, Rachel) (Entered: 07/10/2014)
577 NOTICE of Hearing on Motion. A Hearing on 572 MOTION for Extension of Time to Complete Discovery is set for 7/18/2014 at 10:30 AM before Judge BARRY M. KURREN. Any Opposition is due by 7/17/14 at 12:00 PM. Any Reply may be made orally at the hearing.(kur1)

CERTIFICATE OF SERVICE

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. (Entered: 07/10/2014)

07/11/2014

ADVISORY ENTRY. ALL COUNSEL IS CAUTION to refer to the correct case number of CV 11−00144LEK−BMK for all pleadings including any correspondence submitted to the Court. (bbb) (Entered: 07/11/2014)

07/14/2014

579 RESPONSE in Support re 563 MOTION for Leave to File PUBLICLY EXHIBITS "44"−"55" IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 07/14/2014)

07/14/2014

580 SUPPLEMENT re 545 Memorandum in Opposition to Motion, filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha . (Attachments: # 1 Supplemental Concise Statement of Facts, # 2 Declaration of Sharla Manley, # 3 Exhibit 30, # 4 Exhibit 31, # 5 Certificate of Service)(Manley, Sharla) (Entered: 07/14/2014)

07/16/2014 581 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai −− Defendants' Amended Notice of Deposition for Plaintiff Po'aha (Guzman, Jamie) (Entered: 07/16/2014)

07/17/2014 582 RESPONSE to Motion re 572 MOTION for Extension of Time to Complete Discovery filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Lewis, David) (Entered: 07/17/2014)

07/18/2014 583 Hearing held on 572 Plaintiffs' Motion to Extend Discovery Cutoff. Plaintiffs' Motion is GRANTED. In addition to the extension of the Discovery Cutoff, Plaintiffs shall be allowed to take twelve total depositions, which shall be completed by existing

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 72 of 98

deadlines. Finally, the Court also GRANTS 576 Defendants' Unopposed Motion to Extend Deadline to Respond to Plaintiffs' Amended Second Motion for Class Certification. (C7F, 10:30−10:42AM.) (Judge BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

07/21/2014

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 (Entered: 07/18/2014)
584 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Response to Plaintiffs' Sixth [sic] Set of Interrogatories (Guzman, Jamie) (Entered: 07/21/2014)

07/21/2014

585 Defendants' OPPOSITION OBJECTION to 580 Plaintiffs' Submission of New Evidence in Opposition to Defendants' Motion for Summary Judgment re Sovereign Immunity/Damages (Doc. 519 ), Plaintiffs' Joint Supplemental Concise Statement of Facts in Opposition to Defendants' Motion for Summary Judgment Re: Sovereign Immunity/Damages, and Supplemental Declaration of Sharla Manley (Doc. 580 ) filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) Modified on 7/22/2014 (emt, ). (Entered: 07/21/2014)

07/25/2014 587 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendants' Ninth Supplemental Disclosure Statement (Love, Rachel) (Entered: 07/25/2014)

07/29/2014

588 MOTION for Leave to File MOTION TO FILE PUBLICLY DEFENDANTS MEMORANDUM IN SUPPORT OF RESPONSE TO PLAINTIFFS AMENDED SECOND MOTION FOR CLASS CERTIFICATION (DOC. 560); TABLE 1; AND EXHIBITS 4−11 TO DEFENDANTS MEMORANDUM; DECLARATION OF JAMIE GUZMAN Jamie Guzman appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Declaration Jamie D. Guzman, # 2 Certificate of Service)(Guzman, Jamie) Modified title text on 7/30/2014 (ecs, ). (Entered: 07/29/2014)

07/29/2014

589 RESPONSE in Opposition to Plaintiffs' 560 Amended SECOND MOTION FOR CLASS CERTIFICATION filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum of Point and Authorities (Lodged with the Court), # 2 Declaration of Rachel Love, # 3 Table 1 to Declaration of Rachel Love (Lodged with the Court), # 4 Exhibit 1 to Declaration of Rachel Love, # 5 Exhibit 2 to Declaration of Rachel Love, # 6 Exhibit 3 to Declaration of Rachel Love, # 7 Exhibit 4 to Declaration of Rachel Love (Lodged with the Court), # 8 Exhibit 5 to Declaration of Rachel Love (Lodged with the Court), # 9 Exhibit 6 to Declaration of Rachel Love (Lodged with the Court), # 10 Exhibit 7 to Declaration of Rachel Love (Lodged with the Court), # 11 Exhibit 8 to Declaration of Rachel Love (Lodged with the Court), # 12 Exhibit 9 to Declaration of Rachel Love (Lodged with the Court), # 13 Exhibit 10 to Declaration of Rachel Love (Lodged with the Court), # 14 Exhibit 11 to Declaration of Rachel Love (Lodged with the Court), # 15 Exhibit 12 to Declaration of Rachel Love, # 16 Exhibit 13 to Declaration of Rachel Love, # 17 Exhibit 14 to Declaration of Rachel Love, # 18 Certificate of Word Count, # 19 Certificate of Service)(Guzman, Jamie) Modified on 7/30/2014 (ecs, ). (Entered: 07/29/2014)

07/30/2014

590 NOTICE by Ted Sakai, Corrections Corporation of America re 589 Response in Opposition to Motion,,,,, DEFENDANTS NOTICE OF LODGING DEFENDANTS MEMORANDUM, TABLE 1, AND EXHIBITS 4−11 TO DEFENDANTS RESPONSE TO PLAINTIFFS AMENDED SECOND MOTION FOR CLASS CERTIFICATION (DOC. 560) Ted Sakai, Corrections Corporation of America. (Attachments: # 1 Certificate of Service)(Guzman, Jamie) (Entered: 07/30/2014)

07/31/2014 591 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Response to Plaintiffs' Eighth Requests for Admission (Love, Rachel) (Entered: 07/31/2014)

07/31/2014 592 CERTIFICATE OF SERVICE by Corrections Corporation of America − Defendant CCA's Response to Plaintiffs' Ninth Request for Production (Love, Rachel) (Entered: 07/31/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 73 of 98

07/31/2014 07/31/2014 07/31/2014 07/31/2014

593 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendants' Tenth Supplemental Disclosure Statement (Love, Rachel) (Entered: 07/31/2014)
594 EX PARTE Motion for An Extension of Time to File Reply Brief in Support of Plaintiffs' Motion for Class Certification Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum Memorandum of Points and Authorities, # 2 Declaration Declaration of Counsel, # 3 Certificate of Service)(Manley, Sharla) (Entered: 07/31/2014)
595 Ex Parte MOTION for Extension of Time to File Response/Reply Brief in Support of Plaintiffs' Motion for Class Certification Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum Memorandum of Points and Authorities, # 2 Declaration Declaration of Counsel, # 3 Certificate of Service)(Manley, Sharla) (Entered: 07/31/2014)
596 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN IMMUNITY/DAMAGES re: 519 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/31/2014.
Excerpt of Conclusion: "Defendants' Motion is GRANTED insofar as this Court rules that: 1) Defendant Sakai is entitled to summary judgment as to any of Plaintiffs' § 1983 claims against him seeking damages or retrospective relief; 2) Plaintiffs' remaining § 1983 claims and RLUIPA [Religious Land Use and Institutionalized Persons Act] claims for damages are limited to compensatory damages and nominal damages; 3) Defendants are entitled to summary judgment as to Plaintiffs' claims seeking damages or retrospective relief directly under the Hawai'i State Constitution; and 4) to the extent that any portion of Plaintiff Galdones's state law retaliation claim remains, Defendants are entitled to summary judgment as to his request for punitive damages. Defendants' Motion is DENIED in all other respects."
[Written Order follows hearing held 7/7/2014 on Defendants' M/SJ. Minutes of hearing: doc no. 568 ] (afc)

CERTIFICATE OF SERVICE

07/31/2014

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 will be served by first
class mail on August 1, 2014. (Entered: 07/31/2014)
597 EO: Per Counsel. 594 Ex Parte Motion terminated. Document is a duplicate. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/01/2014

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 (Entered: 07/31/2014)
598 RESPONSE to Motion re 595 Ex Parte MOTION for Extension of Time to File Response/Reply Brief in Support of Plaintiffs' Motion for Class Certification filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 08/01/2014)

08/01/2014 599 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendants' Eleventh Supplemental Disclosure Statement (Guzman, Jamie) (Entered: 08/01/2014)

08/01/2014

600 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Attachments: # 1 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs, # 2 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs, # 3 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs, # 4 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs, # 5 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs, # 6 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs, # 7 Certificate of Service Re Plaintiffs Responses to Defendants' First Set of Interrogatories to Plaintiffs)(Manley,

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 74 of 98

08/01/2014
08/01/2014 08/04/2014 08/04/2014

Sharla) (Entered: 08/01/2014)
601 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re 564 Certificate of Service Re: Plaintiffs' Consolidated Responses' to Defendants' Second Requests for Production of Documents to Plaintiff Richard Davis; Plaintiff Tyrone Kawaelanilua`olena`oki Galdones; Plaintiff Michael Hughes; Plaintiff Robert Holbron; Plaintiff Damien Kaahu; Plaintiff James Kane III; Plaintiff Ellington Keawe and Plaintiff Kalai Poaha (Manley, Sharla) (Entered: 08/01/2014)
602 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha Re: Plaintiffs' Fourth Supplemental Disclosure Pursuant to Fed. R. Civ. P. 26(a)(1) (Manley, Sharla) (Entered: 08/01/2014)
ADVISORY ENTRY. The entry docket number 600 Certificate of Service filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha was filed incorrectly in this case. Please be advised that the certificates of service attached to the main document (Certificate of Service) should have been docketed separately, rather than attached as attachments. (emt, ) (Entered: 08/04/2014)
603 EO: COURT ORDER GRANTING PLAINTIFFS' EX PARTE MOTION FOR AN EXTENSION OF TIME TO FILE REPLY BRIEF IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION; AND ORDER VACATING HEARING ON PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION. granting 595 Motion for Extension of Time to File Response/Reply. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/06/2014

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 (Entered: 08/04/2014)
604 CERTIFICATE OF SERVICE by Richard Kapela Davis re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 605 CERTIFICATE OF SERVICE by Tyrone K. N. Galdones Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 606 CERTIFICATE OF SERVICE by Robert A. Holbron Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 607 CERTIFICATE OF SERVICE by Michael Hughes re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 608 CERTIFICATE OF SERVICE by Damien Kaahu re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 609 CERTIFICATE OF SERVICE by James Kane, III re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 610 CERTIFICATE OF SERVICE by Ellington Keawe re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

08/06/2014 611 CERTIFICATE OF SERVICE by Kalai K. Poaha re 564 Certificate of Service Plaintiffs' Responses to Defendants' First Set of Interrogatories to Plaintiffs (Manley, Sharla) (Entered: 08/06/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 75 of 98

08/07/2014

612 ORDER GRANTING DEFENDANTS' MOTION TO FILE PUBLICLY DEFENDANTS' MEMORANDUM IN SUPPORT OF RESPONSE TO PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION (DOC. 560); TABLE 1; AND EXHIBITS 4−11 TO DEFENDANTS' MEMORANDUM 588 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/7/2014. (ecs, )

CERTIFICATE OF SERVICE

08/07/2014

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 (Entered: 08/07/2014)
613 EO: COURT ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO FILE PUBLICLY EXHIBITS "44"−"55" IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION, AND DENYING DEFENDANTS' REQUEST FOR SANCTIONS. granting in part and denying in part 563 Motion for Leave to File;. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 08/07/2014)

08/07/2014

614 REPLY re 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration of Sharla Manley, # 2 Exhibit 56, # 3 Exhibit 57, # 4 Exhibit 58, # 5 Certificate of Word Count, # 6 Certificate of Service)(Manley, Sharla) (Entered: 08/07/2014)

08/07/2014 676 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFFS' AMENDED SECOND FOR CLASS CERTIFICATION (Doc. 560 )

re 589 Response in Opposition to Motion,

re 612 Order Granting Defendants' Motion to File Publicly Defendants' Memorandum in Support of Response to Plaintiffs' Amended Second Motion for Class Certification (Doc. 560 ); Table 1; and Exhibits 4− 11 to Defendants' Memorandum

filed by Defendants Neil Abercrombie in his official capacity, as the Governor of the State of Hawaii, Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Table 1, # 2 Exhibit 4, # 3 Exhibit 5, # 4 Exhibit 6, # 5 Exhibit 7, # 6 Exhibit 8, # 7 Exhibit 9, # 8 Exhibit 10, # 9 Exhibit 11, # 10 Certificate of Service) (eps) (Entered: 12/12/2014)

08/08/2014

615 NOTICE by Ted Sakai, Corrections Corporation of America re 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION, 589 Response in Opposition to Motion,,,,, Defendants Notice of Filing on the Public Docket Defendants Memorandum, Table 1, and Exhibits 4−11 to Defendants Response to Plaintiffs Amended Second Motion for Class Certification (Doc. 560) Ted Sakai, Corrections Corporation of America. (Attachments: # 1 Memorandum Defendants' Memorandum, # 2 Table 1 to Declaration of Rachel Love, # 3 Exhibit 4 to Declaration of Rachel Love, # 4 Exhibit 5 to Declaration of Rachel Love, # 5 Exhibit 6 to Declaration of Rachel Love, # 6 Exhibit 7 to Declaration of Rachel Love, # 7 Exhibit 8 to Declaration of Rachel Love, # 8 Exhibit 9 to Declaration of Rachel Love, # 9 Exhibit 10 to Declaration of Rachel Love, # 10 Exhibit 11 to Declaration of Rachel Love, # 11 Certificate of Service)(Love, Rachel) (Entered: 08/08/2014)

08/08/2014

616 MOTION Clarification of Sacred Objects That "Remain" Under Equal Protection Theories re 596 Order, Terminate Motions, Terminate Motion Deadlines/Hearings (inc F&R),,,,,,,,,,,,,,,,,, Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 08/08/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 76 of 98

08/12/2014 08/12/2014 08/12/2014 08/13/2014 08/13/2014
08/13/2014

617 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai RE: DEFENDANTS TWELFTH SUPPLEMENTAL DISCLOSURE STATEMENT (Guzman, Jamie) (Entered: 08/12/2014)
618 Pretrial Conference Statement by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Certificate of Service)(Manley, Sharla) (Entered: 08/12/2014)
619 Pretrial Conference Statement by Corrections Corporation of America, Ted Sakai . (Attachments: # 1 Exhibit A − Defendants' Exhibit List, # 2 Certificate of Service)(Love, Rachel) (Entered: 08/12/2014)
620 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai RE: DEFENDANTS THIRTEENTH SUPPLEMENTAL DISCLOSURE STATEMENT (Guzman, Jamie) (Entered: 08/13/2014)
621 NOTICE of Appearance by David Keith K Kopper on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Kopper, David Keith) (Entered: 08/13/2014)
622 EO: COURT ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR CLARIFICATION OF SACRED OBJECTS THAT "REMAIN" UNDER EQUAL PROTECTION THEORIES (DOC. 596). Granting in part and denying in part 616 Motion. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 08/13/2014)

08/14/2014

623 NOTICE by Ellington Keawe, Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III, Kalai K. Poaha re 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION NOTICE OF PUBLIC FILING OF EXHIBITS "44"−"55" Ellington Keawe, Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III, Kalai K. Poaha. (Attachments: # 1 Declaration of Sharla Manley, # 2 Exhibit 44, # 3 Exhibit 45, # 4 Exhibit 46, # 5 Exhibit 47, # 6 Exhibit 48, # 7 Exhibit 49, # 8 Exhibit 50, # 9 Exhibit 51, # 10 Exhibit 52, # 11 Exhibit 53, # 12 Exhibit 54, # 13 Exhibit 55, # 14 Certificate of Service)(Manley, Sharla) (Entered: 08/14/2014)

08/14/2014 627 NOTICE OF FILING OF SEALED EXHIBIT "44" IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION by Plaintiffs (eps ) (Entered: 08/18/2014)

08/14/2014

628 SEALED EXHIBIT "44" IN SUPPORT OF PLAINTIFFS' AMENDED SECOND MOTION FOR CLASSCERTIFICATION. filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. : ATTACHMENT SEALED Related document: 623 ; 627 (eps ) (eps, ). (Entered: 08/18/2014)

08/15/2014

624 NOTICE by Ellington Keawe, Damien Kaahu, Kalai K. Poaha, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III NOTICE OF FILING OF EXHIBIT "C" IN SUPPORT OF PLAINTIFFS' PRE−TRIAL CONFERENCE STATEMENT Ellington Keawe, Damien Kaahu, Kalai K. Poaha, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III. (Attachments: # 1 Exhibit C, # 2 Certificate of Service)(Manley, Sharla) (Entered: 08/15/2014)

08/18/2014 625 APPLICATION for Writ of Habeas Corpus Ad Testificandum by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, James Kane, III, Ellington Keawe. (Attachments: # 1 Memorandum of Points and Authorities, # 2

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 77 of 98

08/18/2014

Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Certificate of Service)(Manley, Sharla) (Entered: 08/18/2014)
626 EP: Final Pretrial Conference held on 8/18/2014. (Court Reporter Cynthia Ott) (JUDGE LESLIE E. KOBAYASHI)(tyk)

CERTIFICATE OF SERVICE

08/20/2014

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 (Entered: 08/18/2014)
629 EO: COURT ORDER REGARDING THE ARIZONA PLAINTIFFS' PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM. Re 625 Application for Writ. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/21/2014

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 (Entered: 08/20/2014)
630 EO: COURT'S PRELIMINARY RULING ON PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION. granting in part and denying in part 560 Motion to Certify Class;DOP=8/21/2014. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/21/2014

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 (Entered: 08/21/2014)
631 EO: COURT ORDER VACATING TRIAL DATE AND ORDERING COUNSEL TO MEET AND CONFER REGARDING NEW TRIAL DATE. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/22/2014

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 (Entered: 08/21/2014)
632 EO: A Trial Re−Setting Conference is set for 8/27/2014 at 9:30AM before Judge BARRY M. KURREN. Counsel may appear by phone by notifying Judge Kurren's Courtroom Manager (808−541−1306) of their phone number, prior to the Conference. (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

08/27/2014

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 (Entered: 08/22/2014)
635 EP: Status Conference Re Trial Date held. New trial−related dates and deadlines are given. Court to prepare scheduling order. Final Pretrial Conference set for 2/3/2015 09:30 AM before Judge BARRY M. KURREN. Jury Selection/Trial set for 09:00 AM on 3/17/2015 before JUDGE LESLIE E. KOBAYASHI. ( C8 no record 9:30−9:38am.) (Judge BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

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 (Entered: 08/27/2014)

08/27/2014

636 RESPONSE in Opposition to Plaintiffs' Petition for Writ of Habeas Corpus Ad Testificandum (Doc. 625) filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Memorandum, # 2 Declaration Guzman, # 3 Exhibit 1 − Guzman, # 4 Exhibit 2 − Guzman, # 5 Declaration Thomas, # 6 Exhibit 1 − Thomas, # 7 Declaration Komori, # 8 Exhibit 1 − Komori, # 9 Main Document Nobriga, # 10 Certificate of Word Count, # 11 Certificate of Service)(Guzman, Jamie) (Entered:

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 78 of 98

08/28/2014 08/28/2014

08/27/2014)
637 Declaration re 636 Response in Opposition to Motion, . (Attachments: # 1 Declaration Thomas (signed), # 2 Certificate of Service)(Love, Rachel) (Entered: 08/28/2014)
638 SECOND RULE 16 SCHEDULING ORDER:. Signed by Judge BARRY M. KURREN on 08/27/2014. (eps)

CERTIFICATE OF SERVICE

09/03/2014

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 (Entered: 08/28/2014)
640 REPLY re 625 Application for Writ, in Support of Petition for Writ of Habeas Corpus Ad Testificandum filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, James Kane, III, Ellington Keawe. (Attachments: # 1 Declaration of Sharla Manley, # 2 Exhibit 2, # 3 Certificate of Service)(Manley, Sharla) (Entered: 09/03/2014)

09/30/2014

644 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION re 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2014.

−− 1) This Court CERTIFIES a class, seeking prospective declaratory and injunctive relief, as to
Plaintiffs' remaining claims regarding daily, outdoor, group worship and the remaining claims regarding access to sacred items ("the Prospective Relief Class"). The Prospective Relief Class is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are and/or will be confined to Saguaro Correctional Center ("Saguaro"); c) in the general population; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith.
The representatives of the Prospective Relief Class shall be Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones, Michael Hughes, and James Kane, III. The class counsel shall be Sharla Manley, Esq., David Keith Kopper, Esq., Moses Haia, Esq., Shawn Westrick, Esq., and James Kawahito, Esq.

2) This Court CERTIFIES a subclass, seeking prospective declaratory and injunctive relief, with regard to: 1) the same claims described supra as to the Prospective ReliefClass; and 2) the remaining state and federal claims regarding lack of access to communal sacred items in protective custody ("the Prospective Relief Subclass"). The Prospective Relief Subclass is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are and/or will be confined to Saguaro; c) in protective custody; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith.
The representative of the Prospective Relief Subclass shall be Plaintiff Kane

3) This Court CERTIFIES a class, seeking nominal damages and other retrospective relief, as to Counts I through X, and XXII through XXVI ("the Damages Class"). The Damages Class is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the general population; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith.
The representatives of the Damages Class shall be Plaintiffs Davis, Galdones, Hughes, Kane, Damien Kaahu, Robert A. Holbron, Ellington Keawe, and Kalai K. Poaha.

4) This Court CERTIFIES a subclass, seeking nominal damages and other retrospective relief, as to Counts I, II, III, V, VI, VII, VIII, X, XXII, XXIII, XXIV, and XXVI ("the SHIP Damages Subclass"). The SHIP Damages Subclass is defined as:

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 79 of 98
a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the Special Housing Incentive Program (SHIP); and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith.
The representative of the SHIP Damages Subclass shall be Plaintiff Holbron.

5) This Court CERTIFIES a subclass, seeking nominal damages and other retrospective relief, as to Counts I through X, and XXII through XXVI ("the Protective Custody Damages Subclass"). The Protective Custody Damages Subclass is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in protective custody; and d) who have, according to Saguaros's established procedures, declared that the Native Hawaiian religion is their faith. The representatives of the Protective Custody Damages Subclass shall be Plaintiffs Keawe and Kane.

Plaintiffs' Motion is DENIED in all other respects. All other remaining claims shall be prosecuted on behalf of the named Plaintiffs only
(eps )

CERTIFICATE OF SERVICE

10/02/2014

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 (Entered: 09/30/2014)
645 EO: Status Conference set for 10/20/2014 at 10:30 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 10/02/2014)

10/03/2014

646 NOTICE of Appearance by Sharla Ann Manley on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 10/03/2014)

10/03/2014

CORRECTIVE ENTRY. The Docket Entry number 646 Notice of Appearance, filed by Damien
Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha is filed incorrectly in this case. The name of the ECF User under whose login and password the document is being electronically filed must correspond to the signature of the attorney signing the ECF filed document. In this instance the ECF Login is Sharla Manley and the wet signature is James Kawahito. (LR100.4.4, LR100.5.1). Counsel James Kawahito may enter his Notice of Appearance on the CM/ECF Docket using his CM/ECF Login once the requirements of the
local rules have been met. (eps) (Entered: 10/03/2014)

10/06/2014

647 NOTICE of Appearance by James Kazuo Kawahito on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Kawahito, James) (Entered: 10/06/2014)

10/07/2014 648 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai − Defendants' Fourteenth Supplemental Disclosure Statement (Guzman, Jamie) (Entered: 10/07/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 80 of 98
10/16/2014 649 EO: COURT'S ORDER Regarding Counsel's Letter Request to participate by phone. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

10/20/2014

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 (wnn, ). (Entered: 10/16/2014)
651 EP: Status Conference held on 10/20/2014. (Court Reporter Cynthia Ott) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

10/20/2014 10/31/2014

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 (Entered: 10/20/2014)
652 NOTICE of Appearance by Howard K.K. Luke on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha on behalf of Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Luke, Howard) (Entered: 10/20/2014)
653 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM re 625 Application for Writ, filed by Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis. Signed by JUDGE LESLIE E. KOBAYASHI on 10/31/2014.

Plaintiffs' Petition for Writ of Habeas Corpus Ad Testificandum, filed August 18, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. The Petition is GRANTED insofar as this Court ORDERS Defendants to allow Plaintiffs to appear at trial in plain clothes and without any visible security restrains. The Petition is DENIED in all other respects.
(eps)

CERTIFICATE OF SERVICE

11/10/2014

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 (Entered: 10/31/2014)
654 ORDER REGARDING REMAINING CLAIMS re 596 Order. Signed by JUDGE LESLIE E. KOBAYASHI on 11/10/2014. (eps)

CERTIFICATE OF SERVICE

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 (Entered: 11/10/2014)

11/12/2014

657 Second MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Class Members and Intimidation of Witnesses Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum in Support of Motion, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Declaration of James Kane III, # 10 Declaration of John Doe, # 11 Declaration of Peter Moses, # 12 Certificate of Service)(Manley, Sharla) (Entered: 11/12/2014)

11/14/2014

659 ORDER REGARDING THE PARTIES' PROPOSALS FOR THE NOTICE OF PENDENCY OF CLASS ACTION. Signed by JUDGE LESLIE E. KOBAYASHI on 11/14/2014. (eps)

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 81 of 98

11/17/2014 11/17/2014

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 (Entered: 11/14/2014)
660 NOTICE by Ted Sakai, Corrections Corporation of America re 659 Order,, Notice of Compliance Ted Sakai, Corrections Corporation of America. (Attachments: # 1 Certificate of Service)(Guzman, Jamie) (Entered: 11/17/2014)
661 EO: COURT'S ORDER re 657 Second MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Class Members and Intimidation of Witnesses. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

11/26/2014

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 (Entered: 11/17/2014)
662 MOTION for Leave to File Defendants Motion To File Redacted Opposition To Plaintiffs Second Motion For Protective Order Prohibiting Retaliation Against Plaintiffs And Class Members And Intimidation Of Witnesses (Doc. 657) And Supporting Declarations And Attachments Partly Under Seal And Partly On The Public Docket Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 11/26/2014)

11/26/2014

664 MEMORANDUM in Opposition re 657 Second MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Class Members and Intimidation of Witnesses filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Declaration of Warden Thomas (REDACTED), # 2 Attachment A to Declaration of Warden Thomas (LODGED TO BE SEALED), # 3 Attachment B to Declaration of Warden Thomas (LODGED TO BE SEALED), # 4 Attachment C to Declaration of Warden Thomas, # 5 Attachment D to Declaration of Warden Thomas, # 6 Attachment E to Declaration of Warden Thomas, # 7 Attachment F to Declaration of Warden Thomas, # 8 Attachment G to Declaration of Warden Thomas, # 9 Attachment H to Declaration of Warden Thomas, # 10 Attachment I to Declaration of Warden Thomas (LODGED TO BE SEALED), # 11 Attachment J to Declaration of Warden Thomas, # 12 Attachment K to Declaration of Warden Thomas (LODGED TO BE SEALED), # 13 Declaration of Ben Griego (REDACTED), # 14 Attachment A to Declaration of Ben Griego, # 15 Attachment B to Declaration of Ben Griego, # 16 Declaration of Lieutenant Gawlik, # 17 Attachment A to Declaration of Lieutenant Gawlik (LODGED TO BE SEALED), # 18 Attachment B to Declaration of Lieutenant Gawlik (LODGED TO BE SEALED), # 19 Attachment C to Declaration of Lieutenant Gawlik, # 20 Declaration of Property Officer J. Fernino, # 21 Attachment A to Declaration of Property Officer J. Fernino, # 22 Attachment B to Declaration of Property Officer J. Fernino, # 23 Certificate of Service)(Love, Rachel) (Entered: 11/26/2014)

11/26/2014

665 MOTION for Attorney Fees Defendants Motion For Attorneys Fees And Costs In Responding To Plaintiffs Second Motion For Protective Order (Dkt. 657) Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 11/26/2014)

12/01/2014

666 ORDER GRANTING DEFENDANTS' MOTION TO FILE REDACTED OPPOSITION TO PLAINTIFFS' SECOND MOTION FOR PROTECTIVE ORDER PROHIBITING RETALIATION AGAINST PLAINTIFFS AND CLASS MEMBERS AND INTIMIDATION OF WITNESSES (Doc. 657 ) AND SUPPORTING DECLARATIONS AND ATTACHMENTS PARTLY UNDER SEAL AND PARTLY ON THE PUBLIC DOCKET re 662 Motion for Leave to File. Signed by JUDGE LESLIE E. KOBAYASHI on 12/01/2014. (eps)

CERTIFICATE OF SERVICE
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 (Entered: 12/01/2014)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 82 of 98

12/02/2014 12/02/2014
12/03/2014

667 Errata re 664 Memorandum in Opposition to Motion,,,,,, . (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(Love, Rachel) (Entered: 12/02/2014)
670 MEMORANDUM OF POINTS AND AUTHORITIES In Support Of Defendants' Opposition To 657 Second MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Class Members and Intimidation of Witnesses; Certificate of Service filed by Defendants'. <: ATTACHMENT SEALED> (eps) (eps, ). (Entered: 12/11/2014)
668 EO: COURT ORDER DENYING AS PREMATURE DEFENDANTS' MOTION FOR ATTORNEY'S FEES AND COSTS IN RESPONDING TO PLAINTIFFS' SECOND MOTION FOR PROTECTIVE ORDER (DKT. 657). denying 665 Motion for Attorney Fees. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 12/03/2014)

12/10/2014

669 REPLY re 657 Second MOTION for Protective Order Prohibiting Retaliation Against Plaintiffs and Class Members and Intimidation of Witnesses filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Declaration Supplemental, # 2 Exhibit 7, # 3 Certificate of Service)(Manley, Sharla) (Entered: 12/10/2014)

12/24/2014

677 ORDER DENYING PLAINTIFFS' SECOND MOTION FOR A PROTECTIVE ORDER PROHIBITING RETALIATION AGAINST PLAINTIFFS AND CLASS MEMBERS AND INTIMIDATION OF WITNESSES re 657 − Signed by JUDGE LESLIE E. KOBAYASHI on 12/24/2014. (emt, )

CERTIFICATE OF SERVICE

01/08/2015

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 (Entered: 12/24/2014)
678 EO: By the request of counsel, the Final Pretrial Conference set for 02/03/2015 IS ADVANCED TO 01/29/2015 at 1:30 p.m. before Judge BARRY M. KURREN. Final Pretrial Conference Statements are now due by 01/22/2015. Counsel Rachel N. Love to notify parties. (Judge BARRY M. KURREN)(bbb)

CERTIFICATE OF SERVICE

01/09/2015

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 (Entered: 01/08/2015)
680 MOTION for Pro Hac Vice re Kathleen L. Wieneke Filing fee $ 300, receipt number 0975−1494439. (Attachments: # 1 Declaration of Counsel, # 2 Certificate of Service)(Love, Rachel) (Entered: 01/09/2015)

01/09/2015

681 Errata re 680 MOTION for Pro Hac Vice re Kathleen L. Wieneke Filing fee $ 300, receipt number 0975−1494439. . (Attachments: # 1 Declaration of Counsel − Amended, # 2 Certificate of Service re Notice of Errata re Doc. 680)(Love, Rachel) (Entered: 01/09/2015)

01/12/2015

682 ORDER GRANTING 680 Motion To Appear Pro Hac Vice as to Kathleen L. Wieneke. Signed by JUDGE LESLIE E. KOBAYASHI on 01/12/2015. (eps )

CERTIFICATE OF SERVICE
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 (Entered: 01/12/2015)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 83 of 98

01/13/2015 683 EO: Status Conference set for 1/20/2015 at 11:15 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

01/16/2015 01/20/2015
01/21/2015

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 (Entered: 01/13/2015)
685 Ex Parte MOTION For Approval of the Form of the Notice to the Class Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Sharla Manley, # 2 Exhibit 1, # 3 Certificate of Service)(Manley, Sharla) (Entered: 01/16/2015)
686 EP:Status Conference held on 1/20/2015. Discussion Held regarding the present Trial Date of 3/17/2015 and the approval of the Form of the Notice to the Class.Court Hereby Orders the present Trial Date of 3/17/2015 and the Final PreTrial Conference Date of 1/29/2015 be VACATED. Also vacated all Trial related deadlines as stated in the Second Rule 16 Scheduling Order [ECF NO. 638]By 1/28/2015 Counsel are to submit a Stipulated Order as to the Notice to the Class, etc. New Trial Date−Jury Selection/Jury Trial Date−6/2/2015 at 9:00 a.m. before Judge Leslie Kobayashi. Final PreTrial Conference−4/29/2015 at 9:00 a.m. before Judge Barry Kurren. Final PreTrial Statement by 4/22/2015.Third Rule 16 Scheduling Order will be issued. (Court Reporter Cynthia Ott.) (JUDGE LESLIE E. KOBAYASHI)(lls, )No COS issued for this docket entry (Entered: 01/20/2015)
687 AMENDED RULE 16 SCHEDULING ORDER:. Signed by JUDGE LESLIE E. KOBAYASHI on 01/21/2015. (eps)

CERTIFICATE OF SERVICE

01/29/2015

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 (Entered: 01/21/2015)
688 EO: COURT ORDER EXTENDING DEADLINE TO SUBMIT STIPULATION AND ORDER REGARDING NOTICE TO THE CLASS. (JUDGE LESLIE E. KOBAYASHI)(tl, )

CERTIFICATE OF SERVICE

01/30/2015

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 (Entered: 01/29/2015)
690 STIPULATION AND ORDER APPROVING PLAN TO PROVIDE CLASS NOTICE. Signed by JUDGE LESLIE E. KOBAYASHI on 1/30/2015. (Attachments: # 1 Exhibit A)(eps)

CERTIFICATE OF SERVICE

02/02/2015

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 (Entered: 01/30/2015)
691 EO: 685 Motion terminated. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

02/10/2015

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 (Entered: 02/02/2015)
692 NOTICE by Ted Sakai, Corrections Corporation of America re 690 Stipulation and Order,, − COMPLIANCE Ted Sakai, Corrections Corporation of America. (Attachments: # 1 Certificate of Service)(Wieneke, Kathleen) (Entered: 02/10/2015)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 84 of 98

04/07/2015 04/16/2015

693 STATUS REPORT on Notice to the Class by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 04/07/2015)
694 EO: Due to a conflict in the Court's schedule, the Final Pretrial Conference, previously set for 4/29/2015, is CONTINUED to 5/1/2015 at 09:30 AM in Courtroom 7 before MAGISTRATE JUDGE BARRY M. KURREN. Final Pretrial Conference Statements are due by 4/24/2015. (MAGISTRATE JUDGE BARRY M. KURREN)(kur3)

CERTIFICATE OF SERVICE

04/23/2015

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 (Entered: 04/16/2015)
695 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai Re: Defendants Fifteenth Supplemental Disclosure Statement (Love, Rachel) (Entered: 04/23/2015)

04/24/2015

696 MOTION Defendants Motion for Decertification of Class Action Claims Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Declaration of Juan Valenzuala, # 3 Attachment A to Declaration of of Juan Valenzuala, # 4 Attachment B to Declaration of of Juan Valenzuala, # 5 Attachment C to Declaration of of Juan Valenzuala, # 6 Attachment D to Declaration of of Juan Valenzuala, # 7 Declaration of Chaplain McGuire, # 8 Attachment A to Declaration of Chaplain McGuire, # 9 Attachment B to Declaration of Chaplain McGuire, # 10 Attachment C to Declaration of Chaplain McGuire, # 11 Attachment D to Declaration of Chaplain McGuire, # 12 Declaration of Warden Thomas, # 13 Attachment A to Declaration of Warden Thomas, # 14 Attachment B to Declaration of Warden Thomas, # 15 Certificate of Word Count, # 16 Certificate of Service)(Love, Rachel) (Entered: 04/24/2015)

04/24/2015 697 Pretrial Conference Statement by Corrections Corporation of America, Ted Sakai Defendants' Amended Pretrial Statement. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Love, Rachel) (Entered: 04/24/2015)

04/24/2015

698 Pretrial Conference Statement by Richard Kapela Davis Michael Hughes, Tyrone Galdones, Damien Kaahu, Robert A. Hobron, James Kane, III, Ellington Keawe, Kalai Poaha. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Certificate of Service)(Manley, Sharla) (Entered: 04/24/2015)

04/27/2015 699 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai Defendants Sixteenth Supplemental Disclosure Statement (Love, Rachel) (Entered: 04/27/2015)

04/30/2015 700 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai Re: Defendants Seventeenth Supplemental Disclosure Statement (Love, Rachel) (Entered: 04/30/2015)

04/30/2015

701 REQUEST for Realtime Court Reporting Services: (Attachments: # 1 Supplement Judge Kobayashi Trial Procedures, # 2 Supplement Judge Kobayashi Electronic Devices Policy, # 3 Supplement Memorandum Regarding Juror Information Cards, # 4 Supplement Civil Trial Exhibits, # 5 Supplement Civil Jury Selection) (wnn, ) (Entered: 04/30/2015)

05/01/2015 702 EO: Pretrial Conference set for 5/27/2015 at 10:00 AM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

05/01/2015

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 (Entered: 05/01/2015)
703 EP: Final Pretrial Conference held on 5/1/2015. The parties estimate that trial will last approximately 10 trial days.

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 85 of 98

In the interest of expediting trial, the Court ORDERS that, prior to the Pretrial Conference with Judge Leslie E. Kobayashi on 5/27/2015, the parties meet and confer regarding (1) witnesses, including the order in which they will be called; (2) exhibits; (3) deposition designations and counter−designations; and (4) jury instructions. Any issue regarding trial continuance, bifurcation, or whether and to what extent the jury will be used as an advisory body should be taken up with Judge Kobayashi prior to trial.

The parties may contact the Court for a further Settlement Conference, as necessary. (C7, no record, 09:30−09:50 AM) (MAGISTRATE JUDGE BARRY M. KURREN)(kur3)

CERTIFICATE OF SERVICE

05/01/2015

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 (Entered: 05/01/2015)
704 EO: Status Conference set for 5/1/2015 at 02:30 PM before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

05/01/2015

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 (Entered: 05/01/2015)
705 EP: Status Conference held on 5/1/2015, 696 MOTION Defendants Motion for Decertification of Class Action Claims. Motion Hearing set for 5/27/2015 AT 10:00 AM before JUDGE LESLIE E. KOBAYASHI. (Court Reporter Cynthia Fazio) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

05/06/2015

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 (Entered: 05/01/2015)
706 EO: The Court has reviewed the letter from Sharla Manley dated 5/6/2015, wherein the parties jointly request an expedited Settlement Conference with the Court. The Court therefore SETS a Settlement Conference for 5/14/2015 at 01:30 PM before MAGISTRATE JUDGE BARRY M. KURREN. Updated Settlement Conference Statements are due no later than 5/11/2015. (MAGISTRATE JUDGE BARRY M. KURREN)(kur3)

CERTIFICATE OF SERVICE

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 (Entered: 05/06/2015)

05/08/2015

708 MEMORANDUM in Opposition re 696 MOTION Defendants Motion for Decertification of Class Action Claims filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 05/08/2015)

05/11/2015

709 EO: The Court has reviewed the letter from Rachel Love dated 5/8/2015, wherein Ms. Love requests (1) that the party representative for Defendant Corrections Corporation of America ("CCA") be allowed to participate at the Settlement Conference on 5/14/2015 by phone; and (2) that the Court excuse the Department of Public Safety's participation at the Settlement Conference. The Court hereby GRANTS both requests. Defendants shall have on hand or provide the Court in advance the telephone number of the CCA party representative with settlement authority who will be available by phone at the time of the Settlement Conference. (MAGISTRATE JUDGE BARRY M. KURREN)(kur3)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 86 of 98

CERTIFICATE OF SERVICE

05/11/2015

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 (Entered: 05/11/2015)
710 MOTION in Limine #1 re Insufficient Affirmative Defenses Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #1, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Certificate of Service)(Manley, Sharla) (Entered: 05/11/2015)

05/11/2015

711 MOTION in Limine #2 re Evidence of Tattoos and Gang Affiliation Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #2, # 2 Certificate of Service)(Manley, Sharla) (Entered: 05/11/2015)

05/11/2015

712 MOTION in Limine #3 re Evidence Disclosed After Discovery Cut−Off Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #3, # 2 Declaration of Sharla Manley, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Certificate of Service)(Manley, Sharla) (Entered: 05/11/2015)

05/11/2015

713 MOTION in Limine #4 re Evidence of Other Lawsuits Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Supplement of Points and Authorities re MIL #4, # 2 Certificate of Service)(Manley, Sharla) (Entered: 05/11/2015)

05/11/2015

714 MOTION in Limine #5 re Evidence of Criminal Convictions Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #5, # 2 Certificate of Service)(Manley, Sharla) (Entered: 05/11/2015)

05/12/2015

715 MOTION in Limine #6 re Phone Call Recordings Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #6, # 2 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)

05/12/2015

716 MOTION in Limine #7 re Excluding Expert Testimony Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #7, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)

05/12/2015

717 MOTION in Limine #8 re Institutional Misconduct Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #8, # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)

05/12/2015

718 MOTION in Limine #9 re Exclude Evidence of Availability of Attorneys' Fees Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #9, # 2 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)

05/12/2015

719 MOTION in Limine #10 re Testimony Regarding Federal Funds Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #10, # 2

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 87 of 98

05/12/2015 05/12/2015
05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015
05/12/2015 05/12/2015

Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)
720 REPLY re 696 MOTION Defendants Motion for Decertification of Class Action Claims filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Word Count, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
721 MOTION to Seal Document re Memorandum of Points and Authorities and Exhibits "11"−"14" in Support of Plaintiffs' Motion in Limine #11 re Spoliation of Evidence Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Declaration of Sharla Manley, # 2 Proposed Order, # 3 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)
722 Designation of Transcripts Re: Defendants' Deposition Designations. filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
723 MOTION in Limine No. 1 To Exclude Evidence Of Buddhist Meditation At RRCC In 2009, Or Operations/Programs At Other Facilities Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
724 MOTION in Limine No. 2 to Exclude Evidence of Improperly Disclosed and Non−Alleged Retaliation Claims Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
725 MOTION in Limine No. 3 to Exclude Allegations of Lack of Privacy for Legal Calls Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
726 MOTION in Limine No. 4 to Exclude Mention of Public Interest Status of NHLC or Suggestions of Pro Bono Work Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
727 MOTION in Limine No. 5 to Exclude Evidence That CCA is Contractually Obligated to Indemnify Hawaii for Civil Suits Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
728 MOTION in Limine No. 6 to Exclude Evidence of State of Hawaiis Practice of Transferring Inmates to the Mainland Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
729 MOTION in Limine #11 re Spoliation of Evidence Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities re MIL #11 (SEALED), # 2 Declaration of Sharla Manley, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11 (SEALED), # 14 Exhibit 12 (SEALED), # 15 Exhibit 13 (SEALED), # 16 Exhibit 14 (SEALED), # 17 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)
730 MOTION in Limine No. 7 to Exclude Evidence of CCAs Financial Health Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
731 MOTION in Limine No. 8 to Exclude Correctional Services Agreements Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered:

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 88 of 98

05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015 05/12/2015
05/12/2015 05/12/2015 05/12/2015 05/14/2015

05/12/2015)
732 Witness List. filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)
733 Designation of Transcripts . filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 05/12/2015)
734 MOTION in Limine No. 9 to Exclude Improperly Disclosed New Hope Pastor Witnesses Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
735 MOTION in Limine No. 10 to Exclude Evidence of Dismissed Claims Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
736 MOTION in Limine No. 11 to Exclude Evidence From Me Too Witnesses Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
737 CERTIFICATE OF SERVICE by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha re Plaintiffs' Proposed Jury Instructions (Manley, Sharla) (Entered: 05/12/2015)
738 MOTION in Limine No. 12 to Exclude New Compensatory Damages Theory and Evidence Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
740 Errata re 734 MOTION in Limine No. 9 to Exclude Improperly Disclosed New Hope Pastor Witnesses . (Attachments: # 1 Exhibit A to Motion in Limine No. 9 to Exclude Improperly Disclosed New Hope Pastor Witnesses, # 2 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
741 MOTION in Limine No. 13 to Strike Expert Opinions as: (1) Duplicative; (2) Irrelevant; (3) Improperly Based on Personal Opinions; and (4) Undisclosed Opinions Based on Site Visits Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
742 MOTION in Limine Defendants Motion to Bifurcate and/or Motion In Limine No. 14 to Exclude Federal Funding Evidence Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
743 Witness List. filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 05/12/2015)
744 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai Re: Defendants Proposed Jury Instructions (Love, Rachel) (Entered: 05/12/2015)
745 EP: Settlement Conference held on 5/14/2015. Case settled.

Settlement terms placed on the record. The Court VACATES all pretrial dates and deadlines, but will maintain the current trial date for the time being. The Court SETS a Status Conference re: Settlement for 5/20/2015 at 10:00 AM in Courtroom 7 before MAGISTRATE JUDGE BARRY M. KURREN. (In chambers, no record (1:15−3:55 PM) / C7F (3:55−4:20 PM)) (MAGISTRATE JUDGE BARRY M. KURREN)(kur3)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 89 of 98

CERTIFICATE OF SERVICE

05/20/2015

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 (Entered: 05/14/2015)
746 EP: Status Conference Re: Settlement held. A Further Status Conference Re: Settlement is scheduled for 5/22/2015 at 10:30 a.m. before MAGISTRATE JUDGE BARRY M. KURREN. Counsel Rachel N. Love to participate at the Further Status Conference by phone. At the time of the hearing, the Court will contact Ms. Love at the number previously provided to the Court.(C7, No Record, 9:58−10:15 A.M.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

05/22/2015

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 (Entered: 05/20/2015)
747 EP: Further Status Conference Re: Settlement held. A Further Settlement Conference is scheduled for May 27, 2015 at 10:00 a.m. before MAGISTRATE JUDGE BARRY M. KURREN. Counsel for Defendants need not appear at the Further Settlement Conference. Counsel is instructed to make arrangements for Plaintiffs to be available by phone at the time of the Further Settlement Conference. Counsel for Plaintiffs to provide the Court with a contact number where Plaintiffs may be reached at the time of the Conference by calling Judge Kurren's Courtroom Manager at (808)541−1306. (In Chambers, No Record, 10:28−11:15 A.M.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

05/26/2015 05/27/2015

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 (Entered: 05/22/2015)
748 STATUS REPORT Final Report on Notice to the Class by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) Modified text (bold) on 5/27/2015 (ecs, ). (Entered: 05/26/2015)
749 EP: Further Settlement Conference held. Plaintiffs Richard Kapela Davis, Michael Hughes, and Tyrone K. N. Galdones present by phone. Nothing further at this time. (In Chambers, No Record, 9:55−12:00 P.M.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

05/28/2015

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 (Entered: 05/27/2015)
750 EO: Jury Selection/Trial currently set for 6/2/2015 at 09:00 AM before Judge Leslie E. Kobayashi is Vacated based on the tentative settlement. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

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 (Entered: 05/28/2015)

06/05/2015

751 TRANSCRIPT of Proceedings held on May 14, 2015, − before Judge Kurren. Court Reporter/Transcriber Jessica Cahill, Telephone number 808−298−8633 (maukele@hawaii.rr.com). Transcript may be viewed at the court public terminal or ordered through the Court Reporter/Transcriber before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a),FRCrP 49.1(a) and FRBP 9037(a) Redaction Request due 6/23/2015. Redacted Transcript Deadline set for 7/6/2015. Release of Transcript Restriction set for

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 90 of 98

06/11/2015 09/10/2015

8/31/2015. (Cahill, Jessica) (Entered: 06/05/2015)
753 NOTICE by Ted Sakai, Corrections Corporation of America of Withdrawal of Counsel (within firm) Ted Sakai, Corrections Corporation of America. (Love, Rachel) (Entered: 06/11/2015)
755 EO: The Court received Plaintiffs' letter dated 9/9/2015 regarding the status of settlement in this case. The Court sets a Further Settlement Conference on 10/16/2015 at 2:30PM before Judge Barry M. Kurren. Mainland counsel are ORDERED to attend this Settlement Conference in person. The Court schedules this Conference at 2:30PM because the Court is expected to be in trial until 2:30PM that day. However, if the trial settles or finishes early, the Court will advance this Conference to an earlier time on 10/16/2015. Therefore, the Court asks that counsel keep their schedules clear on 10/16/2015 so that they can attend the Conference if it is advanced to an earlier time on that day. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

09/16/2015

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 (Entered: 09/10/2015)
758 EO: Defense counsel is ORDERED to have Plaintiffs available by phone at the Further Settlement Conference on 10/16/2015 at 2:30PM (Hawaii time) before Judge Barry M. Kurren. Defense counsel shall notify Judge Kurren's Courtroom Manager (808−541−1306) of the phone number where Plaintiffs will be available at for the Conference. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2)

CERTIFICATE OF SERVICE

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 (Entered: 09/16/2015)

09/18/2015

759 EO: The Court is in receipt of a letter from Counsel Sharla Manley and David Kauila Kopper, dated September 16, 2015, requesting that the Court order the Director of Public Safety for the State of Hawaii, Nolan Espinda, to appear at the Settlement Conference currently scheduled for October 16, 2015. Any response to the September 16, 2015 letter must be made via letter to the Court no later than September 25, 2015. (MAGISTRATE JUDGE BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

10/14/2015

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 (Entered: 09/18/2015)
760 CERTIFICATE OF SERVICE by Corrections Corporation of America, Ted Sakai Re: Defendants Eighteenth Supplemental Disclosure Statement (Love, Rachel) (Entered: 10/14/2015)

10/15/2015 761 EO: The Further Settlement Conference set for 10/16/2015 at 2:30PM is ADVANCED to 9:00AM before Judge Barry M. Kurren. This Settlement Conference will be held in Judge Kurrens chambers. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

10/15/2015

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 (Entered: 10/15/2015)
762 EO: The Court reviewed the letter briefs dated September 16 and September 25, 2015 regarding whether the Director of Pubic Safety for State of Hawaii must be present at the Settlement Conference scheduled for 10/16/2015. The Court FINDS that the Director of Public Safety need not attend the Settlement Conference. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 91 of 98

10/16/2015

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 (Entered: 10/15/2015)
765 EP: Further Settlement Conference held. Case SETTLED. The parties are currently working on the necessary settlement documents. A Stipulation for Dismissal is due no later than October 30, 2015. A Telephonic Status Conference Regarding Settlement is scheduled for 10/26/2015 at 2:00 p.m. before MAGISTRATE JUDGE BARRY M. KURREN. Counsel is instructed to contact Judge Kurren's Courtroom Manager at (808)541−1306 to provide contact information for the telephonic status conference. (In Chambers, No Record, 9:00 A.M. − 2:30 P.M.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur1)

CERTIFICATE OF SERVICE

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 (Entered: 10/21/2015)

10/21/2015

766 EO: The Court enters this docket entry to clarify the deadlines for settlement documents in this case. Counsel and/or parties shall sign a Settlement Agreement no later than 11/4/2015. A Motion for Approval of Class Action Settlement is due 11/16/2015. A hearing on that Motion will be scheduled after the Motion is filed. Please disregard the requirement in Docket Entry 765 , which stated that the Stipulation for Dismissal is due 10/30/2015. Instead of filing a Stipulation for Dismissal, counsel shall sign the Settlement Agreement and file a Motion for Approval of Class Action Settlement as stated above. A Telephonic Status Conference is set for 10/26/2015 at 2:00 p.m. before Judge Barry M. Kurren. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

10/24/2015

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 (Entered: 10/21/2015)
767 EO: The Telephonic Status Conference set for Monday, 10/26/2015, at 2:00PM is MOVED to 2:30PM before Judge Barry M. Kurren on that same date. Counsel notified by email. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

10/26/2015

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 (Entered: 10/24/2015)
768 EO: The Telephonic Status Conference Regarding Settlement, which was set for today (10/26/2015), is CONTINUED to 11/2/2015 at 11:30AM before Judge Barry M. Kurren. Rachel Love's office to notify counsel and the Court (808−541−1306) if the telephone number and passcode for this Conference has changed due to this scheduling change. If this Status Conference becomes unnecessary, please notify Judge Kurren's Courtroom Manager (808−541−1306) so that it may be vacated. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

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 (Entered: 10/26/2015)

11/02/2015

769 EP: Telephonic Status Conference Regarding Settlement held. Rachel Love shall update the Court by 11/4/2015 about whether counsel agree to the terms of a Settlement Agreement. The deadline to submit the motion for approval of class action settlement will be due one week after counsel agree to the terms of a Settlement Agreement. (Chambers no record 11:30−11:45am.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 92 of 98

11/05/2015

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 (Entered: 11/02/2015)
770 EO: A Status Conference is set for 11/10/2015 at 2:30PM before Judge Barry M. Kurren. Counsel may participate in this Conference via telephone by notifying Judge Kurren's Courtroom Manager (808−541−1306) of their phone number, prior to the Conference. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

11/10/2015

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 (Entered: 11/05/2015)
772 EP: Status Conference held. Counsel to update the Court by 11/17/2015. (C7 no record 2:46−3:06pm.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

01/25/2016

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 (Entered: 11/10/2015)
775 EO: A Telephonic Status Conference is scheduled for 1/26/2016 at 2:00PM (Hawaii time) before Judge Barry M. Kurren. The Court will contact Sharla Manley and Rachel Love via telephone at the time of this Conference. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

01/26/2016

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 (Entered: 01/25/2016)
776 EP: Telephonic Status Conference held.

Settlement negotiations between counsel are ongoing. If the case settles, counsel shall notify the Court immediately.

Any motion regarding the settlement is due 2/24/2016.

A Scheduling Conference is set for 2/29/2016 at 9:30AM before Judge Barry M. Kurren.

(Chambers no record 2:00−2:15pm.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

02/11/2016 02/24/2016

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 (Entered: 01/26/2016)
777 (COURT) CIVIL NO. 11−00144LEK−BMK Richard Kapela Davis, et al. vs. Neil Abercrombie, et al. Witness Lists and Exhibit Lists used in Hearing on Motion for Preliminary Injunction (eps) (Additional attachment(s) added on 2/18/2016: # 1 Part 2 of 2) (eps). Modified on 2/18/2016: Witness Lists & Exhibits Lists Attached (eps ). (Entered: 02/18/2016)
778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Memorandum, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Certificate of Word Count, # 5 Certificate of Service)(Love, Rachel) (Entered: 02/24/2016)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 93 of 98

02/29/2016 779 EP: Scheduling Conference held. Counsel to continue settlement negotiations. (C7 no record 9:40−9:55am.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

03/01/2016

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 (Entered: 02/29/2016)
780 NOTICE of Hearing on Motion 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing : Motion Hearing set for 4/11/2016 at 10:30 AM before JUDGE LESLIE E. KOBAYASHI. (wnn, )

CERTIFICATE OF SERVICE

03/16/2016 03/16/2016

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. (Entered: 03/01/2016)
781 First MOTION to Continue Re: Joint Motion to Continue Briefing Schedule and Hearing on Defendants Motion For Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing Currently Set for April 11, 2016 at 10:30 A.M. Rachel N. Love appearing for Defendants Corrections Corporation of America, Ted Sakai (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 03/16/2016)
782 ORDER GRANTING JOINT MOTION TO CONTINUE BRIEFING SCHEDULE AND HEARING ON DEFENDANTS' MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AGREEMENT REACHED BY COUNSEL ON MAY 14, 2015 AND REQUEST TO SET FAIRNESS HEARING CURRENTLY SET FOR APRIL 11, 2016 AT 10:30 A.M. re 781 Motion to Continue. Signed by JUDGE LESLIE E. KOBAYASHI on 03/16/2016.

(eps)

CERTIFICATE OF SERVICE

04/13/2016

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on
the Notice of Electronic Filing (NEF). (Entered: 03/16/2016)
784 EO: Regarding 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing. Motion Hearing set for 5/9/2016 at 10:30 AM in Aha Nonoi before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

04/15/2016

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 (Entered: 04/13/2016)
787 EP: Settlement negotiations held via telephone with Sharla Manley and Rachel Love throughout the day, for a total of 30 minutes. Settlement negotiations ongoing. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE
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 (Entered: 04/18/2016)
04/18/2016 788 NOTICE of Appearance by Jodie D. Roeca on behalf of Neil Abercrombie, Corrections Corporation of America, Ted Sakai on behalf of Neil Abercrombie, Corrections Corporation of America, Ted Sakai. (Roeca, Jodie) (Entered: 04/18/2016)
04/18/2016 789 MEMORANDUM in Opposition re 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 94 of 98

04/25/2016 05/03/2016 05/04/2016

on May 14, 2015 and Request to Set Fairness Hearing filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Kopper, David Keith) (Entered: 04/18/2016)
790 REPLY re 789 Memorandum in Opposition to Motion, Re: Defendants Reply in Support of Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing [Doc. 778] filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Certificate of Service)(Love, Rachel) (Entered: 04/25/2016)
791 Joint MOTION to Continue Hearing on Defendants' Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing Currently Set for May 9, 2016 at 10:30 a.m. Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 05/03/2016)
792 EO: Court's Order Granting 791 Motion to Continue; 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing. Motion Hearing set for 5/9/2016 at 10:30 AM is continued to 6/27/2016 at 09:45 AM in Aha Nonoi before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

06/01/2016

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 (Entered: 05/04/2016)
793 EO: A Telephonic Status Conference is set for 6/2/2016 at 10:30am (Hawaii time) before Judge Barry M. Kurren. The Court will contact Sharla Ann Manley and Rachel N. Love by phone at the time of this Conference.

(MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

06/02/2016

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 (Entered: 06/01/2016)
794 EO: Regarding 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing. Motion Hearing set for 6/27/2016 at 09:45 AM is continued to 8/8/2016 at 10:30 AM in Aha Nonoi before JUDGE LESLIE E. KOBAYASHI. (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

06/02/2016

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 Modified on 6/2/2016 (wnn, ). (Entered: 06/02/2016)
795 EP: Telephonic Status Conference held.

The mediation at the facility is scheduled for Monday, June 27, 2016. Rachel Love shall notify Sharla Manley and Judge Kurren of the start time of the mediation. Also, Rachel Love shall provide Sharla Manley and Judge Kurren a packet with directions and other necessary information about entering the facility. This packet shall be provided no later than June 22, 2016.

Counsel shall submit a joint statement regarding the issues in this case that are resolved and those that remain unresolved. This statement shall be submitted to Judge Kurren no later than June 22, 2016.

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 95 of 98

(Chambers no record 10:30−10:45am.) (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

06/27/2016

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 (Entered: 06/03/2016)
797 EP: Mediation held at Saguaro Correctional Center. No settlement at this time. (Saguaro Correctional Center, 8:00am−5:30pm.) ( BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

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 (Entered: 07/06/2016)

06/28/2016 796 REQUEST Scheduling of a Rule 16 Conference by Richard Kapela Davis. (Attachments: # 1 Declaration Declaration of David Kauila Kopper, # 2 Certificate of Service)(Kopper, David Keith) (Entered: 06/28/2016)

07/06/2016

798 EO: A Scheduling Conference is set for 8/8/2016 at 11:30AM before Judge Barry M. Kurren. Counsel may participate via telephone by notifying Judge Kurren's Courtroom Manager (808−541−1306) of their phone number, prior to the Conference. This Conference will be held in Judge Kurren's Chambers on the 3rd Floor of the U.S. District Courthouse. ( BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

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 (Entered: 07/06/2016)

08/02/2016

799 EO: Due to a conflict with the Court's schedule, the Scheduling Conference set for 8/8/2016 at 11:30AM is MOVED to 2:30pm on that same date before Judge Barry M. Kurren. This Conference will be held in Courtroom 8 on the second floor of the courthouse. Counsel may participate in this Conference via telephone by notifying Judge Kurren's Courtroom Manager (808−541−1306) of their phone number, prior to the Conference. ( BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE

08/08/2016

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 (Entered: 08/02/2016)
800 EP: Motion Hearing held on 8/8/2016 re 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing filed by Ted Sakai, Corrections Corporation of America. Granting 778 Motion for Settlement; (Court Reporter Debi Read) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

08/08/2016

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 (Entered: 08/08/2016)
801 EO: In light of the Court's oral ruling on 778 Defendants' Motion for Preliminary Approval of Class Settlement Agreement, the Scheduling Conference set for today (8/8/2016) at 2:30pm is VACATED. Counsel notified via telephone. (MAGISTRATE JUDGE BARRY M. KURREN)(kur2 )

CERTIFICATE OF SERVICE
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

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 96 of 98

08/15/2016
08/22/2016 09/07/2016

mail on the date of this docket entry (Entered: 08/08/2016)
802 NOTICE by Ellington Keawe, Damien Kaahu, Kalai K. Poaha, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III re 800 Order on Motion for Settlement, Motion Hearing,,,,,, re Proposed Notice Plan Ellington Keawe, Damien Kaahu, Kalai K. Poaha, Michael Hughes, Tyrone K. N. Galdones, Richard Kapela Davis, Robert A. Holbron, James Kane, III. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Manley, Sharla) (Entered: 08/15/2016)
803 RESPONSE re 802 Notice (Other), Re: Response to Proposed Notice Plan filed by Corrections Corporation of America, Ted Sakai. (Attachments: # 1 Exhibit 1)(Love, Rachel) (Entered: 08/22/2016)
806 ORDER APPROVING NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND SETTING FINAL FAIRNESS HEARING re 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement and Request to Set Fairness Hearing

(FINAL FAIRNESS HEARING set for 2/6/2017 10:30 AM in 'Aha Nonoi before JUDGE LESLIE E. KOBAYASHI.)
Signed by JUDGE LESLIE E. KOBAYASHI on 09/07/2016.

(Attachments: # 1 Exhibit A: NOTICE OF PROPOSED CLASS ACTION SETTLEMENT)

(eps )

CERTIFICATE OF SERVICE

09/22/2016 09/22/2016

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on
the Notice of Electronic Filing (NEF). (Entered: 09/07/2016)
807 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps ) (eps, ). (Entered: 09/22/2016)
808 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps ) (Additional attachment(s) added on 9/22/2016: # 1 Main Document) (eps, ). (Entered: 09/22/2016)

09/22/2016 09/26/2016 10/18/2016

809 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (Entered: 09/22/2016)
818 NOTICE by Ted Sakai, Corrections Corporation of America re 806 Order, Set Hearings,,,,,, Re: Notice of Compliance with Court Order Approving Notice of Proposed Class Action Settlement and Setting Fairness Hearing (Dkt. 806) Ted Sakai, Corrections Corporation of America. (Love, Rachel) (Entered: 09/26/2016)
819 Letter from Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Entered: 10/18/2016)

10/18/2016 10/21/2016 11/21/2016

820 Letter from Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Entered: 10/18/2016)
828 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Entered: 10/21/2016)
834 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Entered: 11/21/2016)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 97 of 98

11/22/2016 11/22/2016 11/22/2016 11/22/2016 11/29/2016 12/08/2016
12/15/2016 02/03/2017

840 Letter: Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Entered: 11/23/2016)
841 Letter: Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (Entered: 11/23/2016)
842 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Additional attachment(s) added on 2/3/2017: # 1 Letter) (eps, ). (Entered: 11/23/2016)
843 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (eps, ). (Entered: 11/23/2016)
852 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED (eps, ) (Entered: 11/29/2016)
860 STATEMENT re 778 MOTION for Settlement Re: Defendants Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14, 2015 and Request to Set Fairness Hearing Plaintiffs' Statement Regarding Allowing Individuals to Opt−Out Pursuant to September 7, 2016 Order Approving Notice of Proposed Class Action Settlement & Setting Final Fairness Hearing filed by Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha. (Attachments: # 1 Certificate of Service)(Manley, Sharla) (Entered: 12/08/2016)
861 RESPONSE re 860 Statement,, Re: Response Brief to Plaintiffs Statement Regarding Allowing Individuals to Opt−Out Pursuant to September 7, 2016 Order Approving Notice of Proposed Class Action Settlement and Setting Final Fairness Hearing filed by Corrections Corporation of America, Ted Sakai. (Love, Rachel) (Entered: 12/15/2016)
862 Letter : Redacted Letter of Objections To Proposed Settlement : ATTACHMENT SEALED

02/06/2017

re 857 (eps ) (eps, ). (Entered: 02/03/2017)
869 EP: Confirmation Hearing Re: Settlement held. Settlement approved. Order to be issued. (Court Reporter Debi Read.) (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

04/11/2017

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 (Entered: 02/06/2017)
870 ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT.

Signed by JUDGE LESLIE E. KOBAYASHI on 04/11/2017.

−− This Court HEREBY GRANTS final approval of the settlement and ORDERS the parties to
implement the terms of the settlement. Pursuant to the terms of the settlement, all of the remaining claims in this case are HEREBY DISMISSED WITH PREJUDICE, with all parties to bear their own respective attorneys' fees and costs of suit, except as expressly provided in this Order.There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to close this case on May 2, 2017, unless a motion for reconsideration is filed by April 27, 2017.

(eps, )

CERTIFICATE OF SERVICE

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). (Entered: 04/11/2017)

Case: 1:11-cv-144 As of: 06/23/2018 05:05 PM HST 98 of 98

04/27/2017 05/02/2017

871 MOTION for Reconsideration re 870 Order − Written Order Following Oral Order on Motion,,, Sharla Ann Manley appearing for Plaintiffs Richard Kapela Davis, Tyrone K. N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, Kalai K. Poaha (Attachments: # 1 Memorandum of Points and Authorities, # 2 Certificate of Service)(Manley, Sharla) (Entered: 04/27/2017)
872 EO: COURT ORDER REGARDING PLAINTIFFS' MOTION FOR RECONSIDERATION AND/OR CLARIFICATION OF THE ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MOTION FOR SUBSTITUTION OF PARTIES. re 871 MOTION for Reconsideration re 870 Order − Written Order Following Oral Order on Motion . (JUDGE LESLIE E. KOBAYASHI)(wnn, )

CERTIFICATE OF SERVICE

05/16/2017

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 (Entered: 05/02/2017)
873 STIPULATION AND ORDER REGARDING PLAINTIFFS' MOTION FOR RECONSIDERATION AND/OR CLARIFICATION OF THE ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MOTION FOR SUBSTITUTION OF PARTIES

re 871 MOTION for Reconsideration re 870 Order.

Signed by JUDGE LESLIE E. KOBAYASHI on 05/16/2017.

(eps, )

CERTIFICATE OF SERVICE

05/17/2017 05/22/2017

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). (Entered: 05/16/2017)
874 Letter Brief from Sharla Manley, Native Hawaiian Legal Corporation to JUDGE LESLIE E. KOBAYASHI; May 15, 2017 (eps, ) (Entered: 05/17/2017)
875 AMENDED ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT.

Signed by JUDGE LESLIE E. KOBAYASHI on 05/22/2017.

− − This Court HEREBY GRANTS final approval of the settlement and ORDERS the parties to
implement the terms of the settlement. Pursuant to the terms of the settlement, all of the remaining claims in this case are HEREBY DISMISSED WITH PREJUDICE, with all parties to bear their own respective attorneys' fees and costs of suit, except as expressly provided in this Order. There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to close this case immediately.

(eps, )

CERTIFICATE OF SERVICE

05/22/2017

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). (Entered: 05/22/2017)
876 CLERK'S JUDGMENT. (eps, )

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on
the Notice of Electronic Filing (NEF). (Entered: 05/22/2017)