ACLU OF HAWAIl FOUNDATION

LOIS K. PERRIN

8065

DANIEL M. GLUCK

7959

LAURIE A. TEMPLE

8716

ACLU OF HAWAIl FOUNDATION

P.O. Box 3410

Honolulu, Hawaii 96801

Telephone: (808) 522-5908

Facsimile: (808) 522-5909

E-mail: dgluck@ac1uhawaii.org

Attorneysfor Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAIl

LENORA SANTOS, JUNELL FAITH ALIVIADO, JAMIQUIA GLASS, and MARGARET AMINA,

CIVILNce V12 00259 SOM BMK
[CIVIL RIGHTS ACTION]

Plaintiffs,
vs.
SHARI KINIOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; JEANETTE BAtTERO, Contract Monitor, Department of Public Safety, State of Hawaii, in her individual and official capacities; JODIE MAESAKAHIRATA, Director, Department of Public Safety, State of Hawaii, in her official capacity; and DOES 1-30,

COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF; SUlVIMONS IN A CIVIL CASE

Defendants.

COMPLAINT Plaintiffs LENORA SANTOS, JUNELL FAITH ALIVIADO, JAMIQUIA GLASS, and MARGARET AMINA (collectively, "Plaintiffs"), by and through their attorneys, for this complaint, allege and aver as follows:
INTRODUCTION I. Plaintiffs challenge Defendants' repeated interference with their fundamental right to marry, as guaranteed by the United States Constitution. 2. This action challenges Defendants' customs, practices, and policies of denying the tights of Plaintiffs under the Fourteenth Amendment to the United States Constitution. Specifically, this action seeks declaratory and preliminary and pennanent injunctive relief and damages, which includes an order (a) declaring that Defendants are in violation of the Fourteenth Amendment to the United States Constitution by prohibiting Plaintiffs from marrying their fiances, who are incarcerated under the custody of the State of Hawaii, (b) requiring Defendants to comply promptly with the law and to do so on an ongoing basis, (c) requiring that Defendants SHARI KIMOTO and JEANETTE BALTERO, in their individual capacities, pay damages to Plaintiffs for wrongfully prohibiting them from marrying and causing emotional distress, psychological harm, pain, suffeting, and humiliation; and (d) ordering such other relief as the COUli deems proper, including but not limited to attorneys' fees and costs pursuant to 42 U.S.C.§ 1988.
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3. The United States Supreme Court has repeatedly held that the right to
marry is fundamental, see 2abloeld v. Redhail, 434 U.S. 374 (1978), and Loving v.
Virginia, 388 U.S. 1 (1967), and that there is "a constitutionally protected marital
relationship in the prison context." Turner v. Safley, 482 U.S. 78, 96 (1987)
(holding that a complete ban on plisoners' right to marry, except in compelling
circumstances, was facially unconstitutional). In Turner, the Supreme Court went
even fmiher by holding that - as in the instant case - "where the inmate wishes to
marry a civilian, the decision to marry (apart from the logistics of the wedding
ceremony) is a completely private one." Id. at 98 (emphasis added). In other
words, the law has been clear for at least twenty-five years that prison officials
may not interfere with the lights of prisoners - or their civilian fiancees - to marry.
4. Defendant SHARI KllvIOTO, however, routinely violates the
fundamental rights of both plisoners and their fiancees. When Hawaii plisoners
submit applications to marry, she routinely rejects those applications with a letter
containing the following language:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed.... We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancee will be detrimental to any future reintegrative efforts. Both husband/wife must work
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uniformally [sic1on individual and marital issues that
come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility's walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessaty.
5. Each of the named Plaintiffs has been batTed from marrying based on the fact that her fiance is a prisoner. Some of the Plaintiffs have been given additional, baseless excuses when they hied to appeal these decisions.
6. The ACLU of Hawaii attempted to resolve this issue informally in 2010. On or about November 3, 2010, Defendant KIMOTO denied the maniage application of a plisoner under the custody of the State of Hawaii, who was (and remains) housed at the Saguaro COlTectional Center in Eloy, Alizona. The denial letter contained the language quoted in paragraph 4, supra. On December 1, 2010, the ACLU of Hawaii sent a letter to Defendant KIMOTO explaining that the denial was unconstitutional. On or about December 7,2010, an official with the Department of Public Safety ("DPS") sent this prisoner a letter explaining that DPS had "reconsidered" the prisoner's application and had conditionally granted the application; this official also promised a change in policies that would, in theory, prevent future unconstitutional actions by Defendant KIMOTO. The prisoner and his fiancee were malTied in 2011.
7. Undaunted, Defendant KIMOTO continued - and continues - to violate the fundamental constitutional lights of Hawaii's prisoners and their
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fiancees. On or about May 17, 2011 -less than six months after the ACLU of Hawaii had explained to Defendant KIMOTO that her actions were unconstitutional- Defendant KIMOTO denied the application of Plaintiff GLASS and her fiance (a Hawaii prisoner incarcerated at the Saguaro COlTectional Center) using the iden!icallanguage quoted in paragraph 4, supra. To be clear, her rationale was that the prisoner and Plaintiff GLASS were unable to marry based on the prisoner's status as a prisoner - a rationale that was ruled unconstitutional twenty-five years ago. Plaintiff GLASS seeks - and continues to seek - to marry her fiance.
8. On June 8, 2011, DPS promulgated a new policy, COR.l4.13, on prisoner marriages. This policy purpOlis to restrict prisoners' right to many when "the proposed marriage presents a threat to the secUlity or the good government of the institution or to the protection of the public." A similar federal policy, set forth . in 28 CFR § 551.10, was referenced, somewhat favorably, by the Turner Court.
9. Neveliheless, even a new policy could not contain Defendant KIMOTO's unlawful actions. Despite a policy that purpOlied to restrict Defendant KIMOTO from denying malTiage applications unless some threat to the security of the facility or the protection of the public existed, she continued to deny applications on the basis that plisoners should not marry because they lacked "the necessalY emotional, financial and physical support that every marriage needs in
5

order to succeed." On or about August 9, 2011 - two months after COR.l4.13 went into effect, and nine months after the ACLU sent a letter to Defendant KIMOTO, Defendant KIMOTO denied the marriage application of Plaintiff ALIVIADO and her fiance, who is also incarcerated at the Saguaro Correctional Center under the custody of the State of Hawaii, using the identical language quoted in paragraph 4, supra. Plaintiff ALIVIADO continues to seek to marry her fiance.
10. When would-be spouses would appeal to other government officials, Defendant IUMOTO would find new - and equally offensive and unlawfulreasons for denying the applications. When Plaintiff ALIVIADO sought the assistance of the State of Hawaii Ombudsman's Office, she was advised by the Ombudsman's Office to submit another application to the Department of Public Safety. Plaintiff ALIVIADO did so, and Defendant IUMOTO denied the renewed application. This time, Defendant IUMOTO wrote that the application was denied because Plaintiff ALIVIADO's fiance was convicted of sexual assault of a minor; that Plaintiff ALIVIADO has a minor child; and that the union would "present[] a threat to the protection of the public." Defendant KIMOTO neglected to mention, however, that Plaintiff ALIVIADO's minor child was sixteen years old; that her fiance had approximately ten years left on his sentence; and that it was therefore impossible for this purported tIn'eat to public safety to materialize. (Fmthermore,
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regardless of the minor child's age, such a rationale would violate the Supreme Court's holding in Turner.)
11. Similarly, Plaintiff GLASS's fiance appealed Defendant KIMOTO's decision within the Department of Public Safety by writing to Defendant MAESAKA-HIRATA. On or about October 8, 2011, a Department of Public Safety official wrote a letter to Plaintiff GLASS's fiance on behalf of Defendant MAESAKA-HIRATA, encouraging Plaintiff GLASS's fiance to re-apply; this letter stated that, "at this time it does not appear there are any reasons for a denial." Plaintiff GLASS's fiance followed this advice and submitted yet another application, but the application was denied. This time, in a letter dated January 11, 2012, Defendant KIMOTO wrote that the application was denied because Plaintiff GLASS has three felony convictions from fOlllieen years ago (such that the ma11'iage would "present[] a threat to the secm1ty and good government of the facility").
12. Plaintiff GLASS speaks with her fiance on a daily basis. She visits him several times a year. They write to each other frequently. Defendant KIMOTO has failed to identify how a change in Plaintiff GLASS's legal status (from single to married) would present a security threat, insofar as there is no evidence to suggest that their legal union would change the day-to-day interactions between the p11soner, the Saguaro Correctional Center, and/or the public at large.
7

The change in legal status (from single to malTied) would, however, provide enormous emotional, legal, and psychic benefits to Plaintiff GLASS and her fiance.
13. Plaintiff GLASS attempted to resolve this issue informally with Defendant BALTERO. In a phone conversation on or about February 9,2012, Defendant BALTERO infOlmed Plaintiff GLASS that felons were not pelmitted to marry one another; that marriage is a privilege, rather than a right; and that Plaintiff GLASS's fiance, as a p11soner, had no rights. As such, Defendant BALTERO, like Defendant KlMOTO, has interfered - and continues to interfere with the fundamental rights of Plaintiffs.
14. Meanwhile, around the end of January, Plaintiff GLASS's fiance wrote to Defendant KlMOTO to inquire as to why Plaintiff GLASS's ctiminal record would prevent the two from malTying. In a letter dated Februaty 27,2012, Defendant BALTERO responded on behalf of Defendant KlMOTO and wrote:
The Department of Public Safety denied your marriage to Ms. Glass based on information provided in both your applications and institutional file. Ms. Glass had a criminal history and although her convictions was [sic] years ago, the Department determined that based on policy associating or being in the company of a convicted felon presents a threat to the security and good government of the facility and does not recommend marriage at this time.
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15. Insofar as the named Plaintiffs and the ACLU of Hawaii have tried to

resolve these issues informally, to no avail, Plaintiffs have no choice but to seek an

order from the Court requiting Defendants to comply with the law. Furthermore,

given that the law in this area has been clearly established for at least twenty-five

years, Plaintiffs seek damages for the wrongful denial of their fundamental right to

many.

JURISDICTION AND VENUE

16. This action is brought pursuant to 42 U.S.C. § 1983 to redress the

deprivation, under color of law, of rights secured by the United States Constitution.

17. This Court has jurisdiction in this case pursuant to 28 U.S.c. §§ 1331

and 1343.

18. This Court is authOlized to order declaratory and injunctive relief

pursuant to Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201

and 2202.

19. Venue is properly in this distlict pursuant to 28 U.S.C. § 1391(b)

because all of the Defendants reside in this district, and the events giving rise to

these claims OCCUlTed in this district.

Plaintiffs

THE PARTIES

9

20. LENORA SANTOS is a resident of Honolulu, Hawaii, and a citizen of the United States. She is engaged to be mal1'ied to a man who is incarcerated by the State of Hawaii (currently housed in the Saguaro Correctional Center in Eloy, Arizona).
21. JUNELL FAITH ALIVIADO is a resident of Waipahu, Hawaii, and a citizen ofthe United States. She is engaged to be married to a man who is incarcerated by the State of Hawaii (currently housed in the Saguaro Correctional Center in Eloy, Arizona).
22. JAMIQUIA GLASS is a resident of Mobile, Alabama, and a citizen of the United States. She is engaged to be married to a man who is incarcerated by the State of Hawaii (currently housed in the Saguaro COl1'ectional Center in Eloy, Arizona).
23. MARGARET AMINA is a resident of Honolulu, Hawaii, and a citizen of the United States. She is engaged to be married to a man who is incarcerated by the State of Hawaii (cul1'ently housed in the Saguaro C011'ectional Center in Eloy, Arizona).
24. None of the Plaintiffs is incarcerated. Defendants
25. Each of the Defendants acted under color of state law as to the matters set forth herein. All ofthe conditions, policies and practices (or lack thereof)
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complained of herein are the result of and pursuant to specific decisions, official policies, or customs (or lack thereof) of Defendants. Each of the Defendants knows of and is responsible for the conditions, policies, and practices (or lack thereof) set fOlih herein.
26. SHARI KIMOTO is the Mainland Branch Coordinator for the Department of Public Safety (hereinafter, "DPS"), State of Hawaii. As Mainland Branch Coordinator, SHARI KIMOTO is charged with overseeing the operations of mainland facilities holding Hawaii prisoners. SHARI KIMOTO denied the marriage application of Plaintiff ALIVIADO and her fiance at least twice. SHARI KIMOTO denied the marriage application of JAMIQUIA GLASS and her fiance at least three times. Upon infolwation and belief, Defendant KIMOTO is a citizen of the United States and a resident of the State of Hawaii. For purposes of the damages claims brought by Plaintiffs, Defendant KIMOTO is sued in her individual capacity for actions under color of state law. For purposes of the claims for injunctive relief brought by Plaintiffs, Defendant KIMOTO is sued in her official capacity.
27. JEANETTE BALTERO is a Contract Monitor With the Department of Public Safety, State of Hawaii. Upon infOlwation and belief, Defendant BALTERO is a citizen of the United States and a resident of the State of Hawaii. For purposes of the damages claims brought by Plaintiffs, Defendant BALTERO is
11

sued in her individual capacity for actions under color of state law. For purposes of the claims for injunctive relief brought by Plaintiffs, Defendant BALTERO is sued in her official capacity.
28. JODIE MAESAKA-HIRATA is the Director of the Department of Public Safety, State of Hawaii. In this capacity, Defendant MAESAKA-HIRATA . exercises administrative authority and control over DPS, including its policies, practices, procedures, facilities, maintenance, programs, activities, services and staff. Defendant MAESAKA-HIRATA is responsible for ensuring that DPS personnel comply with constitutional requirements regarding the treatment of Hawaii's p11soners and their relationships with their families. Upon information and belief, Defendant MAESAKA-HIRATA is a citizen of the United States and a resident of the State of Hawaii. Defendant MAESAKA-HIRATA is sued in her official capacity, for injunctive relief (and attorneys' fees/costs) only.
29. Plaintiffs are unaware of the true names and capacities of Defendants DOES 1 THROUGH 30 and therefore sue said Defendants by such fictitious names. Plaintiffs will amend this Complaint to allege their true names and capacities and thereon allege that each of the fictitiously named Defendants is responsible in his/her official and/or individual capacity for the OCCUlTences herein alleged, and that Plaintiffs' damages, as herein alleged, were legally caused by their conduct. Plaintiffs have made good faith and diligent efforts to identify said
12

Defendants, including interviewing individuals with knowledge of the claims

herein.

Plaintiff SANTOS

FACTUAL ALLEGATIONS

30. Plaintiff SANTOS is engaged to be married to a Hawaii prisoner incarcerated at the Saguaro prison in Arizona. Plaintiff SANTOS' fiance has been in prison for approximately six years, and is due to be released in approximately two years.
31. Plaintiff SANTOS desclibes her fiance as being her "first love" from when she was thirteen years old. The two parted ways for a long time, but reunited after approximately thirty years. They have been together as a couple for approximately eight years. Plaintiff SANTOS and her fiance have a daughter together who is now thiliy-seven years old; Plaintiff SANTOS also has a thiliyfive year old son and a thirty-three year old daughter.
32. Plaintiff SANTOS and her fiance talk over the phone almost every evenmg. They "visit" one another via videoconference approximately once a month.
33. Plaintiff SANTOS grew up in Honolulu, and still lives here. She has been unable to visit her fiance because she has bone cancer, and her medical condition prevents her from being able to travel. She is also on a fixed income, so

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travel is prohibitively expensive. When her fiance was housed at Halawa Conectional Facility, however, Plaintiff SANTOS visited as often as she could.
34. HRS § 353H-7 provides in relevant part that "The director of public safety shall return Hawaii inmates held in out-of-state prisons at least one year prior to the inmate's parole or release date in order for these inmates to pmiicipate in programs preparing them for reentry on the island where they have the most support; provided that imnates participating in reentry programs at the mainland facility in which they are incarcerated consent to the return." Therefore, even if Plaintiff SANTOS is unable to travel to Arizona to many her fiance, she will still have an 0ppOliunity to malTY him before he is released from prison (i.e., when he returns from Arizona pursuant to HRS § 353H-7).
35. Plaintiff SANTOS' bone cancer is in remission, but she has been through five rounds of chemotherapy and radiation. She declares that she is living on "God's time" now. As such, time is of the essence with respect to her desire to marry her fiance.
36. Plaintiff SANTOS and her fiance have submitted multiple applications to get manied over the last six years. They applied in 2006, and that application was denied. In a memorandum dated October 2, 2006, a Depmiment of Public Safety official denied the application with the following explanation: "Please be advised that your marriage application has been denied. A domestic
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union at this juncture of your incarceration does not appear to be conducive nor beneficial towards your adjustment."
37. Plaintiff SANTOS and her fiance applied approximately three or four times when Plaintiff SANTOS' fiance was at Halawa, prior to May 20 IO.
38. Plaintiff SANTOS and her fiance applied to be married at least once since he was sent to the Saguaro COiTectional Center in May 2010, including once in the fall of 20 IO. Plaintiff SANTOS' fiance received a letter denying the application around the end of 2010 or the beginning of 2011.
39. Based on the cOiTespondence between Plaintiff SANTOS, her fiance, and various DPS officials, Plaintiff SANTOS believed that it would be impossible to get married until after her fiance was released from prison. Plaintiff SANTOS and her fiance have been trying to get manied for so many years that Plaintiff SANTOS felt like giving up.
40. Defendants' denials of the maniage applications were velY painful for Plaintiff SANTOS. By denying the applications, Defendants made Plaintiff SANTOS feel like a criminal, even though she had not done anything wrong. She just wanted - and still wants - to be husband and wife with her fiance.
41. Defendants' actions in preventing Plaintiff SANTOS from manying have caused her emotional distress, psychological hann, humiliation, pain, and suffering.
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42. Plaintiff SANTOS and her fiance meet the legal requirements for malTiage in both Hawaii and Arizona: both are over eighteen years old; neither is married; the two are not related to one another by blood; and Plaintiff SANTOS can afford the small application fee for a malTiage license in either state.
43. Plaintiff SANTOS has not been arrested since she turned eighteen years old, and does not have any kind of criminal record as an adult. Plaintiff ALIVIADO
44. Plaintiff ALIVIADO is engaged to be married to a Hawaii prisoner incarcerated at the Saguaro prison in Arizona.
45. Plaintiff ALIVIADO and her fiance have been in a romantic relationship for approximately seven years, beginning approximately one year before Plaintiff ALIVIADO's fiance went to prison.
46. Although Plaintiff ALIVIADO and her fiance are separated by thousands of miles, they continue to maintain a strong, healthy relationship. They talk over the phone regularly, and Plaintiff ALIVIADO visits her fiance two or three times a year. The two are able to "visit" one another via video-conference approximately every other month. They also w11te to each other frequently.
47. Plaintiff ALIVIADO and her fiance have been trying to get married for approximately five years. Her fiance first submitted an application about five years ago, and it was denied.
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48. Plaintiff ALIVIADO and her fiance submitted a second application on
or about July 5, 2011 - nearly a month (!fier DPS implemented its new policy,
COR.14.13. Plaintiff ALIVIADO walked the application to the Department of
Public Safety office on Ala Moana Boulevard herself.
49. Defendant KlMOTO denied the request in a letter dated August 9,
2011. That letter stated, in relevant pmi:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every man'iage needs in order to succeed.... We believe that a healthy relationship effort (mmTiage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancee will be detrimental to any future reintegrative efforts. Both husband/wife must work
uniformally [sic1on individual and mmital issues that
come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility's walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.
50. Plaintiff ALIVIADO contacted the Office of the Ombudsman for the
State of Hawaii shortly after the application was denied. In a telephone call on or
about November 22,2011, lVir. Herbert Almeida, an official with the Office of the
Ombudsman, suggested that Plaintiff ALIVIADO and her fiance submit an
additional application.
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51. Based on Mr. Almeida's advice, Plaintiff ALIVIADO and her fiance submitted another application on or about November 28, 2011. Again, Plaintiff ALIVIADO walked the application to the Department of Public Safety office on Ala Moana Boulevard herself.
52. That application was denied. In a letter to Plaintiff Aliviado's fiance dated December 20, 2011, Defendant KIMOTO stated in relevant part:
Records indicate that you were convicted of sexually assaulting your biological child from the age of 8 to 17. Ms. Aliviado cunently has a minor in her care and custody. In accordance with PSD Policy COR.14.13, your conviction of sexually assaulting your own biological child who was a minor at the time of the assaults and knowing that your fiance, Ms. Aliviado has a minor child in her care and custody, presents a threat to the protection of the public. 53. Plaintiff ALIVIADO has four children. Their ages are 31, 29, 25, and 16. 54. Plaintiff ALiVIADO's fiance will be incarcerated for approximately ten more years. In other words, by the time her fiance is released, Plaintiff ALIVIADO will not have any minor children in her care or custody. Consequently, the purported rationale for denying the marriage application is baseless.
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55. Even if Plaintiff ALIVIADO did have minor children in her custody, however, Defendants lack the authority to interfere with Plaintiff ALIVIADO's and her fiance's fundamental right to marry on that basis.
56. Plaintiff ALIVIADO wishes to marry her fiance because she feels close to him. She believes that it is her right, and her choice, to malTY her fiance. She was heartbroken each time an application was denied, and would become sad for months with every denial.
57. Plaintiff ALIVIADO has a box at home with two wedding lings in it. The box has been sitting at her home for five years.
58. Plaintiff ALIVIADO is planning to visit her fiance in Arizona in October, but would travel there sooner if she and her fiance were able to get married earlier.
59. Defendants' actions in preventing Plaintiff ALIVIADO from marrying have caused her emotional distress, psychological hann, humiliation, pain, and suffering.
60. Plaintiff ALIVIADO and her fiance meet the legal requirements for marriage in both Hawaii and Arizona: both are over eighteen years old; neither is man'ied; the two are not related to one another by blood; and Plaintiff ALIVIADO can afford the small application fee for a maniage license in either state.
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61. Plaintiff ALIVIADO has never been atTested and has no criminal record of any kind. Plaintiff GLASS
62. Plaintiff GLASS is engaged to be mal1'ied to a Hawaii prisoner incarcerated at the Saguaro prison in Arizona.
63. Plaintiff GLASS and her fiance met in 2000 and began dating in 2007. They were together as a couple for approximately two and a half years before he was incarcerated. They have been ttying to get man'ied for approximately two years.
64. Plaintiff GLASS lives in Mobile, Alabama, and visits her fiance in Arizona approximately once a month. They talk on the phone nearly evelY day, and spend approximately $100 a week on telephone charges to maintain the strength of their relationship. Because Plaintiff GLASS lives in Alabama, rather than Hawaii, she is unable to conduct videoconference "visits" with her fiance, but Plaintiff GLASS and her fiance write each other frequently.
65. Plaintiff GLASS has a strong religious background and wants to many her fiance for religious reasons. She believes that God made her fiance for her, and that when two people are in love, they come before God "in one yoke." Plaintiff GLASS loves her fiance unconditionally, and declares that he is the biggest part of her life. Plaintiff GLASS and her fiance are best friends, and they
20

share the same dreams and beliefs. Plaintiff GLASS believes that her fiance
completes her as a person and btings out the best in her.
66. Plaintiff GLASS and her fiance began the process to get married in
July 2010 by submitting an application. In September 2010, Defendant
BALTERO informed Plaintiff GLASS that there was some monetaty fine that was
a barrier to the application; Plaintiff GLASS ensured that the fine was paid right
away.
67. Defendant KIMOTO denied the application. In a letter dated October
4,2010, Defendant KIMOTO wrote:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical SUppOlt that evety marriage needs in order to succeed.... We believe that a healthy relationship effort (matTiage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancee will be detrimental to any future reintegrative effOlts. Both husband/wife must work uniformally [sic] on individual and matital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility's walls allowing the proper oppOltunity to work together, develop and establish appropriate relations as necessaty.
68. In December 2010, Plaintiff GLASS and her fiance re-applied to be
married. Defendant KIMOTO denied this application as well. In a letter dated
May 17,2011, Defendant KIMOTO again wrote:
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As a Ward of the State incarcerated in a conectional facility, you are incapable of providing the necessary emotional, financial and physical support that evelY marriage needs in order to succeed....
We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancee will be detrimental to any future reintegrative effOlts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility's walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessaty.
69. In late June, Plaintiff GLASS's fiance sent a letter to the Director of
the Depaltment of Public Safety, Defendant MAESAKA-HIRATA, to appeal the
denial of the marriage application. Michael Hoffman, the Institutions Division
Administrator for the Corrections Division of the Department of Public Safety,
sent Plaintiff GLASS's fiance a letter dated October 8, 2011. In that letter, Mr.
Hoffman wrote:
After review of the matter, I believe you should initiate another request. Once I receive your request from the Mainland Branch, I will take your appeal into consideration and render a decision since at this time it does not appear there are any reasons for a denial. This letter should not be construed as an approval for man'iage as the second request needs to be initiated and the approval/disapproval will be made at that time.
(Emphasis added.)
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70. After receiving Mr. Hoffman's letter, Plaintiff GLASS and her fiance
submitted another application. Defendant KIMOTO denied this application as
well. In a letter dated January 11,2012, Defendant KIMOTO wrote:
Records indicate that Ms. Glass has been convicted of Conspiracy to Rob 5 Banks, Bank Robbery, and Conspiracy to Commit Bank Robbery and setved probationiptison time under the Bureau of Ptisons and the U.S. Probation Office. In addition, she was convicted of Theft of Property and was held under the care and custody of the Alabama Depatiment of Corrections.
In accordance with PSD Policy COR.14.13, associating or being in the company of a convicted felon (state/federal) presents a threat to the security and good govemment of the facility.
71. Plaintiff GLASS was convicted of three felonies in the late 1990s, for
acts committed when she was twenty years old. She served approximately two and
a half years in ptison, and has tumed her life around. She was released from prison
in 2000 and has had no legal trouble since then. She declares that her past
convictions do not represent the thirty-five-year-old woman she is today.
72. Plaintiff GLASS's past convictions have not presented any security or
"good govemment" concems to date: Plaintiff GLASS and her fiance speak on a
near daily basis, and they visit in person approximately once a month.
73. Indeed, the Depattment of Public Safety's visitation policy uses nearly
identical language regarding safety and "good govemment," yet Plaintiff GLASS
has been pennitted to visit without incident. According to PSD Policy COR.15.01,
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"[v]isitation may be denied if it is determined that a visitor is detrimental to the rehabilitation and/or reintegration of an inmate or there is a threat to the security andlor good government ofthe facility concerned." (Emphasis added.) The policy expressly prohibits the denial of visitation on the basis that the proposed visitor has a criminal background.
74. Such disclimination against individuals with criminal backgrounds is also counter to the State of Hawaii's public policy. For example, Hawaii Revised Statutes ("HRS") § 378-2 prohibits employment disclimination on the basis of "atTest and court record." See also HRS § 378-2.5 (providing that an employer may not make employment decisions based on an employee's past criminal convictions unless such a decision has a "rational relationship" to the employee's job duties).
75. Defendants have proffered no reason as to why a change in Plaintiff GLASS's and her fiance's legal status would present a security threat to the Saguaro COll'ectional Center, when in-person visits and daily phone calls do not.
76. On or about February 9,2012, Plaintiff GLASS telephoned Defendant BALTERO to discuss the denial of the mall'iage application. Defendant BALTERO told Plaintiff GLASS something to the effect of "maniage is a privilege, not a right"; that Plaintiff GLASS's fiance did not have any rights because he was incarcerated; and that two felons are prohibited from getting
24

married. Defendant BALTERO stated that the answer to the marriage application was "no" and that the answer would not change. Defendant BALTERO further stated that Plaintiff GLASS was a security risk.
77. Plaintiff GLASS also spoke about these issues over the telephone with Defendant KIMOTO. Defendant KIMOTO, like Defendant BALTERO, told Plaintiff GLASS that felons are prohibited from marrying one another.
78. Around the end of January 2012, Plaintiff GLASS's fiance sent a letter to Defendant KIMOTO asking for an explanation as to why his fiance's criminal record would preclude them from marrying. Defendant BALTERO responded in a letter dated Febmary 27,2012, in which she wrote:
The Department of Public Safety denied your matTiage to Ms. Glass based on information provided in both your applications and institutional file. Ms. Glass had a criminal hist01Y and although her convictions was [sic] years ago, the Department determined that based on policy associating or being in the company of a convicted felon presents a threat to the security and good govemment of the facility and does not recommend marriage at this time. 79. Notwithstanding Defendant BALTERO's and Defendant KIMOTO's claims that Plaintiff GLASS was a security risk, Plaintiff GLASS and her fiance continue to speak over the phone daily and have continued to visit one another in person approximately once per month.
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80. Plaintiff GLASS does not anticipate that being mal1'ied to her fiance would change anything vis-a-vis the Saguaro Correctional Center or the State of Hawaii. The change in legal status would, however, provide both Plaintiff GLASS and her fiance with immeasurable emotional benefits.
81. Defendant KIMOTO's and Defendant BALTERO's actions caused Plaintiff GLASS emotional distress. She became very upset every time the application was denied and every time she had to endure telephone conversations with Defendant BALTERO. Plaintiff GLASS would get her hopes up that she and her fiance could get married, only to have those hopes destroyed by Defendant BALTERO and Defendant KIMOTO.· Plaintiff GLASS was also hurt by Defendant BALTERO and Defendant KIMOTO using Plaintiff GLASS's criminal background from well over a decade ago as a rationale for the mal1'iage application.
82. Defendants' actions in preventing Plaintiff GLASS from marrying have caused her emotional distress, psychological harm, humiliation, pain, and suffeting.
83. Plaintiff GLASS and her fiance meet the legal requirements for marriage in both Hawaii and Arizona: both are over eighteen years old; neither is married; the two are not related to one another by blood; and Plaintiff GLASS can afford the small application fee for a marriage license in either state.
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Margaret Amina 84. Plaintiff AMINA is engaged to be married to a Hawaii prisoner
incarcerated at the Saguaro prison in Arizona. 85. Plaintiff AMINA and her fiance dated while both were students at
Kaimuki High School in the early 1980s. They went their separate ways, but statied communicating after Plaintiff AMINA leamed from her brother - who is also incarcerated at Saguaro - that her former boyfriend was also at Saguaro.
86. Plaintiff AMINA and her former boyfriend statied writing to one another in 2008, and over the course of the next few years their relationship grew. Plaintiff ANIINA's Bible study group at the Word of Life Christian Center suggested to her that she should not be alone, and that God must want her to have this relationship in her life. Plaintiff AMINA began to see that her former boyfriend loved her, and that their relationship had become even stronger.
87. The couple had their first video visit in 2009 or 2010, and Plaintiff AMINA visited him in person once in 2010 and twice in 2011. They began talking about getting manied in 2010.
88. Plaintiff AMINA wishes to many her fiance because she loves him. She believes that he completes her in evety way. For example, she remembers that when they first started writing letters to each other, she would think of questions she wanted to ask him and would think about writing them in a letter to him.
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When she got home that day, she would find a letter from him, answering the questions she had not yet even asked him. For Plaintiff AMINA, it was like this man knew what she was thinking before she did herself.
89. In early 2011, Plaintiff AMINA's fiance submitted an application for the couple to get married. Neither Plaintiff AMINA nor her fiance ever received a response.
90. Plaintiff AMINA believes that her relationship with her fiance is helping to keep her fiance out of trouble within Saguaro. In 2010, Plaintiff AMINA's fiance was disciplined for approximately 60 days as a result of some kind of altercation. Consequently, he was unable to write to or speak with Plaintiff AMINA for that period of time. When he finished his disciplinary tenn, Plaintiff AMINA told him that their relationship was hard enough as it is: the two are separated by thousands of miles, they are unable to see one other, and all they have to keep their relationship going are phone calls and letters. Plaintiff AMINA told her fiance that their relationship could not last if they were unable to communicate, and that he needed to tty harder to avoid getting into trouble. Plaintiff ANIINA's fiance promised to do better and, since 2010, has not had disciplinaty problems at the Saguaro facility.
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91. Defendants' actions in preventing Plaintiff AMINA from marrying
have caused her emotional distress, psychological harm, humiliation, pain, and
suffering.
92. Plaintiff AMINA and her fiance meet the legal requirements for
mal1'iage in both Hawaii and Arizona: both are over eighteen years old; neither is
mal1'ied; the two are not related to one another by blood; and Plaintiff AMINA can
afford the small application fee for a marriage license in either state.
93. Plaintiff AMINA has not been arrested since she turned 18 years old,
and does not have any kind of criminal record as an adult.
Previous ACLU Intervention
94. In 2010, a Saguaro prisoner and his fiance on Oahu (who was not, and
is not, incarcerated) submitted an application to be married. That application was
denied. In a letter to the prisoner dated November 3, 2010, Defendant KlMOTO
wrote:
As a Ward of the State incarcerated in a cOITectional facility, you are incapable of providing the neceSSalY emotional, financial and physical support that evelY mal1'iage needs in order to succeed....
We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and cOlmnunicate effectively face-to-face with your fiancee will be detrimental to any future reintegrative efforts. Both husband/wife must work unifOlmally [sic] on individual and marital issues that come up throughout any successful malTiage. This union
29

may be successful overall for both individuals when you are reunited outside of the facility's walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary. 95. On December 1, 2010, Plaintiffs' counsel sent a letter to Defendant KIMOTO on behalf of the woman on Oahu, demanding that Defendant KIMOTO cease interfeling with the fundamental rights of the couple to marry, and further demanding that the Dep31iment of Public Safety review and revise all neceSS31Y policies. 96. On December 6, 2010, counsel for Plaintiffs had a telephone conversation with Thomas Read, then the Offender Management Administrator within the Dep31iment of Public Safety. During that conversation, Ml'. Read stated that the Department of Public Safety would amend its then-cun'ent m31Tiage policy and would re-evaluate the malTiage request. Ml'. Read also indicated that prisoners' requests to get m31Tied were not unusual. 97. In a letter dated December 7, 2010, Mr. Read stated that the prisoner's request to marry had been "reconsidered" and was conditionally granted. The prisoner and his fiancee were married in March 2011 in Arizona.
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Plaintiffs' Ongoing Injuries 98. Plaintiffs wish to marry individuals who are incarcerated under the
custody and control of the Department of Public Safety (which, in tum, is under the control of Defendant MAESAKA-HIRATA, see paragraph 28, supra).
99. MalTiage is a unique status; nothing else conveys to the world, in so universal a way, that a couple is legally, emotionally, financially, and (for many) spiritually tied to one another. Additionally, for many individuals, being married provides financial benefits (for example, tax benefits and/or survivorship benefits) unavailable through other means.
100. Plaintiffs are suffering - and unless Defendants are enjoined, will continue to suffer - irreparable harrn from the prohibition on exercising their fundamental right to marry under the Fourteenth Amendment to the United States Constitution.
101. As such, Plaintiffs seek a declaration that Defendants' denials of their applications to marry were and are unlawful, pursuant to the Fourteenth Amendment to the United States Constitution. Scope of Defendants' Unlawful Actions
102. Plaintiffs are informed and believe, and thereupon allege, that Defendants have denied marriage applications of dozens, if not hundreds, of other couples' applications to marry. Plaintiffs are infonned and believe, and thereupon
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allege, that Wardens of small jails/plisons in Hawaii (such as the Maui Community Conectional Center) receive approximately one marriage application per month from prisoners and/or their fiances, such that the total number ofmalTiage applications denied over the previous two years is in the dozens, if not hundreds.
103. Plaintiffs are infOlmed and believe, and thereupon allege, that Defendants have thereby interfered with the fundamental rights of dozens, if not hundreds, to marry.
DECLARATORY AND INJUNCTIVE RELIEF 104. An actual and immediate controversy has arisen and now exists between Plaintiffs and Defendants, which parties have genuine and opposing interests and which interests are direct and substantial. Defendants have failed and continue to fail to comply with the United States and Hawaii Constitutions for at least the reasons set forth herein. Plaintiffs are, thus, entitled to a declaratory judgment as well as such other and further relief as may follow from the ently of such a declaratory judgment. 105. Plaintiffs have no adequate remedy at law. Unless enjoined by the COUli, Defendants will continue to infringe Plaintiffs' constitutionally protected rights and will continue to inflict irreparable injury. This threat of injUly to Plaintiffs from continuing violations requires preliminalY and pelmanent injunctive relief.
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FIRST CLAIM FOR RELIEF Violation of the Fourteenth Amendment to the United States Constitution
(Actionable Pursuant to 42 U.S.C. § 1983) (Denial of Fundamental Right to Marry) (By All Plaintiffs Against All Defendants)
106. Plaintiffs reallege and incorporate by reference as though fully contained herein, the allegations set forth in Paragraphs I through 105, above.
107. By their policies, practices, and customs of denying civilians the fundamental tight to marry individuals who are incarcerated by the State of Hawaii, by their failure to adopt adequate policies and procedures, and by their failure to supervise and to train their employees and agents, Defendants have, without adequate justification, intentionally interfered with Plaintiffs' fundamental rights to marry in violation of the FOUlieenth Amendment to the United States Constitution.
PAAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
A. Assume jurisdiction over this action; B. Issue a declaratory judgment stating that Defendants have violated
the FOUlieenth Amendment to the United States Constitution; C. Issue a preliminary and permanent injunction enjoining Defendants
(and their divisions, officers, servants, employees, attorneys, agents
33

and representatives, successors-in-office and all persons acting or purpolting to act in concert or in cooperation with Defendants or pursuant to Defendants' authority) from subjecting Plaintiffs to the customs, policies, practices, mles, regulations, acts and omissions set fOlth in this Complaint; D. Retain jurisdiction over Defendants until such time as the Court is satisfied that Defendants' unlawful customs, policies, practices, mles, regulations, acts and omissions complained of herein no longer exist and will not recur; E. Award reasonable attomeys' fees, costs and other expenditures incuned as a result of bringing this action, pursuant to 42 U.S.c. § 1988 and other applicable laws; F. Award damages to Plaintiffs (against those Defendants named in their individual capacities) for the violations of clearly established law set forth herein; and G. Order such other relief as this Court deems just and proper.
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Dated: Honolulu, Hawaii, May 15,2012. Respectfully submitted, DANIEL M. GLUCK LOIS K. PERRIN DANIEL M. GLUCK LAURIE A. TEMPLE ACLU OF HAWAIl FOUNDATION Attorneysfor Plaintiffs
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 Case 1:12-cv-00259-SOM-BMK Document 9 Filed 05/29/12 Page 1 of 32 PageID #: 138

ACLU OF HAWAII FOUNDATION

LOIS K. PERRIN

8065

DANIEL M. GLUCK

7959

LAURIE A. TEMPLE

8716

ACLU OF HAWAII FOUNDATION

P.O. Box 3410

Honolulu, Hawaii 96801

Telephone: (808) 522-5908

Facsimile: (808) 522-5909

E-mail: dgluck@acluhawaii.org

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

LENORA SANTOS, JUNELL FAITH ALIVIADO, and JAMIQUIA GLASS

CIVIL NO. 12-00259 SOM/BMK [CIVIL RIGHTS ACTION]

Plaintiffs,
vs.
SHARI KIMOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; JEANETTE BALTERO, Contract Monitor, Department of Public Safety, State of Hawaii, in her individual and official capacities; JODIE MAESAKAHIRATA, Director, Department of Public Safety, State of Hawaii, in her official capacity; and DOES 1-30,

AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF; CERTIFICATE OF SERVICE

Defendants.

Case 1:12-cv-00259-SOM-BMK Document 9 Filed 05/29/12 Page 2 of 32 PageID #: 139
COMPLAINT Plaintiffs LENORA SANTOS, JUNELL FAITH ALIVIADO, and JAMIQUIA GLASS (collectively, “Plaintiffs”), by and through their attorneys, for this complaint, allege and aver as follows:
INTRODUCTION 1. Plaintiffs challenge Defendants’ repeated interference with their fundamental right to marry, as guaranteed by the United States Constitution. 2. This action challenges Defendants’ customs, practices, and policies of denying the rights of Plaintiffs under the Fourteenth Amendment to the United States Constitution. Specifically, this action seeks declaratory and preliminary and permanent injunctive relief and damages, which includes an order (a) declaring that Defendants are in violation of the Fourteenth Amendment to the United States Constitution by prohibiting Plaintiffs from marrying their fiancés, who are incarcerated under the custody of the State of Hawaii, (b) requiring Defendants to comply promptly with the law and to do so on an ongoing basis, (c) requiring that Defendants SHARI KIMOTO and JEANETTE BALTERO, in their individual capacities, pay damages to Plaintiffs for wrongfully prohibiting them from marrying and causing emotional distress, psychological harm, pain, suffering, and humiliation; and (d) ordering such other relief as the Court deems proper, including but not limited to attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
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3. The United States Supreme Court has repeatedly held that the right to marry is fundamental, see Zablocki v. Redhail, 434 U.S. 374 (1978), and Loving v. Virginia, 388 U.S. 1 (1967), and that there is “a constitutionally protected marital relationship in the prison context.” Turner v. Safley, 482 U.S. 78, 96 (1987) (holding that a complete ban on prisoners’ right to marry, except in compelling circumstances, was facially unconstitutional). In Turner, the Supreme Court went even further by holding that – as in the instant case – “where the inmate wishes to marry a civilian, the decision to marry (apart from the logistics of the wedding ceremony) is a completely private one.” Id. at 98 (emphasis added). In other words, the law has been clear for at least twenty-five years that prison officials may not interfere with the rights of prisoners – or their civilian fiancées – to marry.
4. Defendant SHARI KIMOTO, however, routinely violates the fundamental rights of both prisoners and their fiancées. When Hawaii prisoners submit applications to marry, she routinely rejects those applications with a letter containing the following language:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. . . . We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancée will be detrimental to any future reintegrative efforts. Both husband/wife must work
3

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uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility’s walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary. 5. Each of the named Plaintiffs has been barred from marrying based on the fact that her fiancé is a prisoner. Some of the Plaintiffs have been given additional, baseless excuses when they tried to appeal these decisions. 6. The ACLU of Hawaii attempted to resolve this issue informally in 2010. On or about November 3, 2010, Defendant KIMOTO denied the marriage application of a prisoner under the custody of the State of Hawaii, who was (and remains) housed at the Saguaro Correctional Center in Eloy, Arizona. The denial letter contained the language quoted in paragraph 4, supra. On December 1, 2010, the ACLU of Hawaii sent a letter to Defendant KIMOTO explaining that the denial was unconstitutional. On or about December 7, 2010, an official with the Department of Public Safety (“DPS”) sent this prisoner a letter explaining that DPS had “reconsidered” the prisoner’s application and had conditionally granted the application; this official also promised a change in policies that would, in theory, prevent future unconstitutional actions by Defendant KIMOTO. The prisoner and his fiancée were married in 2011. 7. Undaunted, Defendant KIMOTO continued – and continues – to violate the fundamental constitutional rights of Hawaii’s prisoners and their
4

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fiancées. On or about May 17, 2011 – less than six months after the ACLU of Hawaii had explained to Defendant KIMOTO that her actions were unconstitutional – Defendant KIMOTO denied the application of Plaintiff GLASS and her fiancé (a Hawaii prisoner incarcerated at the Saguaro Correctional Center) using the identical language quoted in paragraph 4, supra. To be clear, her rationale was that the prisoner and Plaintiff GLASS were unable to marry based on the prisoner’s status as a prisoner – a rationale that was ruled unconstitutional twenty-five years ago. Plaintiff GLASS seeks – and continues to seek – to marry her fiancé.
8. On June 8, 2011, DPS promulgated a new policy, COR.14.13, on prisoner marriages. This policy purports to restrict prisoners’ right to marry when “the proposed marriage presents a threat to the security or the good government of the institution or to the protection of the public.” A similar federal policy, set forth in 28 CFR § 551.10, was referenced, somewhat favorably, by the Turner Court.
9. Nevertheless, even a new policy could not contain Defendant KIMOTO’s unlawful actions. Despite a policy that purported to restrict Defendant KIMOTO from denying marriage applications unless some threat to the security of the facility or the protection of the public existed, she continued to deny applications on the basis that prisoners should not marry because they lacked “the necessary emotional, financial and physical support that every marriage needs in
5

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order to succeed.” On or about August 9, 2011 – two months after COR.14.13 went into effect, and nine months after the ACLU sent a letter to Defendant KIMOTO, Defendant KIMOTO denied the marriage application of Plaintiff ALIVIADO and her fiancé, who is also incarcerated at the Saguaro Correctional Center under the custody of the State of Hawaii, using the identical language quoted in paragraph 4, supra. Plaintiff ALIVIADO continues to seek to marry her fiancé.
10. When would-be spouses would appeal to other government officials, Defendant KIMOTO would find new – and equally offensive and unlawful – reasons for denying the applications. When Plaintiff ALIVIADO sought the assistance of the State of Hawaii Ombudsman’s Office, she was advised by the Ombudsman’s Office to submit another application to the Department of Public Safety. Plaintiff ALIVIADO did so, and Defendant KIMOTO denied the renewed application. This time, Defendant KIMOTO wrote that the application was denied because Plaintiff ALIVIADO’s fiancé was convicted of sexual assault of a minor; that Plaintiff ALIVIADO has a minor child; and that the union would “present[] a threat to the protection of the public.” Defendant KIMOTO neglected to mention, however, that Plaintiff ALIVIADO’s minor child was sixteen years old; that her fiancé had approximately ten years left on his sentence; and that it was therefore impossible for this purported threat to public safety to materialize. (Furthermore,
6

Case 1:12-cv-00259-SOM-BMK Document 9 Filed 05/29/12 Page 7 of 32 PageID #: 144
regardless of the minor child’s age, such a rationale would violate the Supreme Court’s holding in Turner.)
11. Similarly, Plaintiff GLASS’s fiancé appealed Defendant KIMOTO’s decision within the Department of Public Safety by writing to Defendant MAESAKA-HIRATA. On or about October 8, 2011, a Department of Public Safety official wrote a letter to Plaintiff GLASS’s fiancé on behalf of Defendant MAESAKA-HIRATA, encouraging Plaintiff GLASS’s fiancé to re-apply; this letter stated that, “at this time it does not appear there are any reasons for a denial.” Plaintiff GLASS’s fiancé followed this advice and submitted yet another application, but the application was denied. This time, in a letter dated January 11, 2012, Defendant KIMOTO wrote that the application was denied because Plaintiff GLASS has three felony convictions from fourteen years ago (such that the marriage would “present[] a threat to the security and good government of the facility”).
12. Plaintiff GLASS speaks with her fiancé on a daily basis. She visits him several times a year. They write to each other frequently. Defendant KIMOTO has failed to identify how a change in Plaintiff GLASS’s legal status (from single to married) would present a security threat, insofar as there is no evidence to suggest that their legal union would change the day-to-day interactions between the prisoner, the Saguaro Correctional Center, and/or the public at large.
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The change in legal status (from single to married) would, however, provide enormous emotional, legal, and psychic benefits to Plaintiff GLASS and her fiancé.
13. Plaintiff GLASS attempted to resolve this issue informally with Defendant BALTERO. In a phone conversation on or about February 9, 2012, Defendant BALTERO informed Plaintiff GLASS that felons were not permitted to marry one another; that marriage is a privilege, rather than a right; and that Plaintiff GLASS’s fiancé, as a prisoner, had no rights. As such, Defendant BALTERO, like Defendant KIMOTO, has interfered – and continues to interfere – with the fundamental rights of Plaintiffs.
14. Meanwhile, around the end of January, Plaintiff GLASS’s fiancé wrote to Defendant KIMOTO to inquire as to why Plaintiff GLASS’s criminal record would prevent the two from marrying. In a letter dated February 27, 2012, Defendant BALTERO responded on behalf of Defendant KIMOTO and wrote:
The Department of Public Safety denied your marriage to Ms. Glass based on information provided in both your applications and institutional file. Ms. Glass had a criminal history and although her convictions was [sic] years ago, the Department determined that based on policy associating or being in the company of a convicted felon presents a threat to the security and good government of the facility and does not recommend marriage at this time.
8

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15. Insofar as the named Plaintiffs and the ACLU of Hawaii have tried to resolve these issues informally, to no avail, Plaintiffs have no choice but to seek an order from the Court requiring Defendants to comply with the law. Furthermore, given that the law in this area has been clearly established for at least twenty-five years, Plaintiffs seek damages for the wrongful denial of their fundamental right to marry.
JURISDICTION AND VENUE 16. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of law, of rights secured by the United States Constitution. 17. This Court has jurisdiction in this case pursuant to 28 U.S.C. §§ 1331 and 1343. 18. This Court is authorized to order declaratory and injunctive relief pursuant to Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 19. Venue is properly in this district pursuant to 28 U.S.C. § 1391(b) because all of the Defendants reside in this district, and the events giving rise to these claims occurred in this district.
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Plaintiffs

THE PARTIES

20. LENORA SANTOS is a resident of Honolulu, Hawaii, and a citizen of the United States. She is engaged to be married to a man who is incarcerated by the State of Hawaii (currently housed in the Saguaro Correctional Center in Eloy, Arizona).
21. JUNELL FAITH ALIVIADO is a resident of Waipahu, Hawaii, and a citizen of the United States. She is engaged to be married to a man who is incarcerated by the State of Hawaii (currently housed in the Saguaro Correctional Center in Eloy, Arizona).
22. JAMIQUIA GLASS is a resident of Mobile, Alabama, and a citizen of the United States. She is engaged to be married to a man who is incarcerated by the State of Hawaii (currently housed in the Saguaro Correctional Center in Eloy, Arizona).
23. None of the Plaintiffs is incarcerated. Defendants

24. Each of the Defendants acted under color of state law as to the matters set forth herein. All of the conditions, policies and practices (or lack thereof) complained of herein are the result of and pursuant to specific decisions, official policies, or customs (or lack thereof) of Defendants. Each of the Defendants

10

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knows of and is responsible for the conditions, policies, and practices (or lack thereof) set forth herein.
25. SHARI KIMOTO is the Mainland Branch Coordinator for the Department of Public Safety (hereinafter, “DPS”), State of Hawaii. As Mainland Branch Coordinator, SHARI KIMOTO is charged with overseeing the operations of mainland facilities holding Hawaii prisoners. SHARI KIMOTO denied the marriage application of Plaintiff ALIVIADO and her fiancé at least twice. SHARI KIMOTO denied the marriage application of JAMIQUIA GLASS and her fiancé at least three times. Upon information and belief, Defendant KIMOTO is a citizen of the United States and a resident of the State of Hawaii. For purposes of the damages claims brought by Plaintiffs, Defendant KIMOTO is sued in her individual capacity for actions under color of state law. For purposes of the claims for injunctive relief brought by Plaintiffs, Defendant KIMOTO is sued in her official capacity.
26. JEANETTE BALTERO is a Contract Monitor with the Department of Public Safety, State of Hawaii. Upon information and belief, Defendant BALTERO is a citizen of the United States and a resident of the State of Hawaii. For purposes of the damages claims brought by Plaintiffs, Defendant BALTERO is sued in her individual capacity for actions under color of state law. For purposes
11

Case 1:12-cv-00259-SOM-BMK Document 9 Filed 05/29/12 Page 12 of 32 PageID #: 149
of the claims for injunctive relief brought by Plaintiffs, Defendant BALTERO is sued in her official capacity.
27. JODIE MAESAKA-HIRATA is the Director of the Department of Public Safety, State of Hawaii. In this capacity, Defendant MAESAKA-HIRATA exercises administrative authority and control over DPS, including its policies, practices, procedures, facilities, maintenance, programs, activities, services and staff. Defendant MAESAKA-HIRATA is responsible for ensuring that DPS personnel comply with constitutional requirements regarding the treatment of Hawaii’s prisoners and their relationships with their families. Upon information and belief, Defendant MAESAKA-HIRATA is a citizen of the United States and a resident of the State of Hawaii. Defendant MAESAKA-HIRATA is sued in her official capacity, for injunctive relief (and attorneys’ fees/costs) only.
28. Plaintiffs are unaware of the true names and capacities of Defendants DOES 1 THROUGH 30 and therefore sue said Defendants by such fictitious names. Plaintiffs will amend this Complaint to allege their true names and capacities and thereon allege that each of the fictitiously named Defendants is responsible in his/her official and/or individual capacity for the occurrences herein alleged, and that Plaintiffs’ damages, as herein alleged, were legally caused by their conduct. Plaintiffs have made good faith and diligent efforts to identify said
12

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Defendants, including interviewing individuals with knowledge of the claims

herein.

Plaintiff SANTOS

FACTUAL ALLEGATIONS

29. Plaintiff SANTOS is engaged to be married to a Hawaii prisoner incarcerated at the Saguaro prison in Arizona. Plaintiff SANTOS’ fiancé has been in prison for approximately six years, and is due to be released in approximately two years.
30. Plaintiff SANTOS describes her fiancé as being her “first love” from when she was thirteen years old. The two parted ways for a long time, but reunited after approximately thirty years. They have been together as a couple for approximately eight years. Plaintiff SANTOS and her fiancé have a daughter together who is now thirty-seven years old; Plaintiff SANTOS also has a thirtyfive year old son and a thirty-three year old daughter.
31. Plaintiff SANTOS and her fiancé talk over the phone almost every evening. They “visit” one another via videoconference approximately once a month.
32. Plaintiff SANTOS grew up in Honolulu, and still lives here. She has been unable to visit her fiancé because she has bone cancer, and her medical condition prevents her from being able to travel. She is also on a fixed income, so

13

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travel is prohibitively expensive. When her fiancé was housed at Halawa Correctional Facility, however, Plaintiff SANTOS visited as often as she could.
33. HRS § 353H-7 provides in relevant part that “The director of public safety shall return Hawaii inmates held in out-of-state prisons at least one year prior to the inmate’s parole or release date in order for these inmates to participate in programs preparing them for reentry on the island where they have the most support; provided that inmates participating in reentry programs at the mainland facility in which they are incarcerated consent to the return.” Therefore, even if Plaintiff SANTOS is unable to travel to Arizona to marry her fiancé, she will still have an opportunity to marry him before he is released from prison (i.e., when he returns from Arizona pursuant to HRS § 353H-7).
34. Plaintiff SANTOS’ bone cancer is in remission, but she has been through five rounds of chemotherapy and radiation. She declares that she is living on “God’s time” now. As such, time is of the essence with respect to her desire to marry her fiancé.
35. Plaintiff SANTOS and her fiancé have submitted multiple applications to get married over the last six years. They applied in 2006, and that application was denied. In a memorandum dated October 2, 2006, a Department of Public Safety official denied the application with the following explanation: “Please be advised that your marriage application has been denied. A domestic
14

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union at this juncture of your incarceration does not appear to be conducive nor beneficial towards your adjustment.”
36. Plaintiff SANTOS and her fiancé applied approximately three or four times when Plaintiff SANTOS’ fiancé was at Halawa, prior to May 2010.
37. Plaintiff SANTOS and her fiancé applied to be married at least once since he was sent to the Saguaro Correctional Center in May 2010, including once in the fall of 2010. Plaintiff SANTOS’ fiancé received a letter denying the application around the end of 2010 or the beginning of 2011.
38. Based on the correspondence between Plaintiff SANTOS, her fiancé, and various DPS officials, Plaintiff SANTOS believed that it would be impossible to get married until after her fiancé was released from prison. Plaintiff SANTOS and her fiancé have been trying to get married for so many years that Plaintiff SANTOS felt like giving up.
39. Defendants’ denials of the marriage applications were very painful for Plaintiff SANTOS. By denying the applications, Defendants made Plaintiff SANTOS feel like a criminal, even though she had not done anything wrong. She just wanted – and still wants – to be husband and wife with her fiancé.
40. Defendants’ actions in preventing Plaintiff SANTOS from marrying have caused her emotional distress, psychological harm, humiliation, pain, and suffering.
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41. Plaintiff SANTOS and her fiancé meet the legal requirements for marriage in both Hawaii and Arizona: both are over eighteen years old; neither is married; the two are not related to one another by blood; and Plaintiff SANTOS can afford the small application fee for a marriage license in either state.
42. Plaintiff SANTOS has not been arrested since she turned eighteen years old, and does not have any kind of criminal record as an adult. Plaintiff ALIVIADO
43. Plaintiff ALIVIADO is engaged to be married to a Hawaii prisoner incarcerated at the Saguaro prison in Arizona.
44. Plaintiff ALIVIADO and her fiancé have been in a romantic relationship for approximately seven years, beginning approximately one year before Plaintiff ALIVIADO’s fiancé went to prison.
45. Although Plaintiff ALIVIADO and her fiancé are separated by thousands of miles, they continue to maintain a strong, healthy relationship. They talk over the phone regularly, and Plaintiff ALIVIADO visits her fiancé two or three times a year. The two are able to “visit” one another via video-conference approximately every other month. They also write to each other frequently.
46. Plaintiff ALIVIADO and her fiancé have been trying to get married for approximately five years. Her fiancé first submitted an application about five years ago, and it was denied.
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47. Plaintiff ALIVIADO and her fiancé submitted a second application on
or about July 5, 2011 – nearly a month after DPS implemented its new policy,
COR.14.13. Plaintiff ALIVIADO walked the application to the Department of
Public Safety office on Ala Moana Boulevard herself.
48. Defendant KIMOTO denied the request in a letter dated August 9,
2011. That letter stated, in relevant part:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. . . . We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancée will be detrimental to any future reintegrative efforts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility’s walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.
49. Plaintiff ALIVIADO contacted the Office of the Ombudsman for the
State of Hawaii shortly after the application was denied. In a telephone call on or
about November 22, 2011, Mr. Herbert Almeida, an official with the Office of the
Ombudsman, suggested that Plaintiff ALIVIADO and her fiancé submit an
additional application.
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50. Based on Mr. Almeida’s advice, Plaintiff ALIVIADO and her fiancé submitted another application on or about November 28, 2011. Again, Plaintiff ALIVIADO walked the application to the Department of Public Safety office on Ala Moana Boulevard herself.
51. That application was denied. In a letter to Plaintiff Aliviado’s fiancé dated December 20, 2011, Defendant KIMOTO stated in relevant part:
Records indicate that you were convicted of sexually assaulting your biological child from the age of 8 to 17. Ms. Aliviado currently has a minor in her care and custody. In accordance with PSD Policy COR.14.13, your conviction of sexually assaulting your own biological child who was a minor at the time of the assaults and knowing that your fiancé, Ms. Aliviado has a minor child in her care and custody, presents a threat to the protection of the public. 52. Plaintiff ALIVIADO has four children. Their ages are 31, 29, 25, and 16. 53. Plaintiff ALIVIADO’s fiancé will be incarcerated for approximately ten more years. In other words, by the time her fiancé is released, Plaintiff ALIVIADO will not have any minor children in her care or custody. Consequently, the purported rationale for denying the marriage application is baseless.
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54. Even if Plaintiff ALIVIADO did have minor children in her custody, however, Defendants lack the authority to interfere with Plaintiff ALIVIADO’s and her fiancé’s fundamental right to marry on that basis.
55. Plaintiff ALIVIADO wishes to marry her fiancé because she feels close to him. She believes that it is her right, and her choice, to marry her fiancé. She was heartbroken each time an application was denied, and would become sad for months with every denial.
56. Plaintiff ALIVIADO has a box at home with two wedding rings in it. The box has been sitting at her home for five years.
57. Plaintiff ALIVIADO is planning to visit her fiancé in Arizona in October, but would travel there sooner if she and her fiancé were able to get married earlier.
58. Defendants’ actions in preventing Plaintiff ALIVIADO from marrying have caused her emotional distress, psychological harm, humiliation, pain, and suffering.
59. Plaintiff ALIVIADO and her fiancé meet the legal requirements for marriage in both Hawaii and Arizona: both are over eighteen years old; neither is married; the two are not related to one another by blood; and Plaintiff ALIVIADO can afford the small application fee for a marriage license in either state.
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60. Plaintiff ALIVIADO has never been arrested and has no criminal record of any kind. Plaintiff GLASS
61. Plaintiff GLASS is engaged to be married to a Hawaii prisoner incarcerated at the Saguaro prison in Arizona.
62. Plaintiff GLASS and her fiancé met in 2000 and began dating in 2007. They were together as a couple for approximately two and a half years before he was incarcerated. They have been trying to get married for approximately two years.
63. Plaintiff GLASS lives in Mobile, Alabama, and visits her fiancé in Arizona approximately once a month. They talk on the phone nearly every day, and spend approximately $100 a week on telephone charges to maintain the strength of their relationship. Because Plaintiff GLASS lives in Alabama, rather than Hawaii, she is unable to conduct videoconference “visits” with her fiancé, but Plaintiff GLASS and her fiancé write each other frequently.
64. Plaintiff GLASS has a strong religious background and wants to marry her fiancé for religious reasons. She believes that God made her fiancé for her, and that when two people are in love, they come before God “in one yoke.” Plaintiff GLASS loves her fiancé unconditionally, and declares that he is the biggest part of her life. Plaintiff GLASS and her fiancé are best friends, and they
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share the same dreams and beliefs. Plaintiff GLASS believes that her fiancé
completes her as a person and brings out the best in her.
65. Plaintiff GLASS and her fiancé began the process to get married in
July 2010 by submitting an application. In September 2010, Defendant
BALTERO informed Plaintiff GLASS that there was some monetary fine that was
a barrier to the application; Plaintiff GLASS ensured that the fine was paid right
away.
66. Defendant KIMOTO denied the application. In a letter dated October
4, 2010, Defendant KIMOTO wrote:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. . . . We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancée will be detrimental to any future reintegrative efforts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility’s walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.
67. In December 2010, Plaintiff GLASS and her fiancé re-applied to be
married. Defendant KIMOTO denied this application as well. In a letter dated
May 17, 2011, Defendant KIMOTO again wrote:
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As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. . . .
We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancée will be detrimental to any future reintegrative efforts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility’s walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.
68. In late June, Plaintiff GLASS’s fiancé sent a letter to the Director of
the Department of Public Safety, Defendant MAESAKA-HIRATA, to appeal the
denial of the marriage application. Michael Hoffman, the Institutions Division
Administrator for the Corrections Division of the Department of Public Safety,
sent Plaintiff GLASS’s fiancé a letter dated October 8, 2011. In that letter, Mr.
Hoffman wrote:
After review of the matter, I believe you should initiate another request. Once I receive your request from the Mainland Branch, I will take your appeal into consideration and render a decision since at this time it does not appear there are any reasons for a denial. This letter should not be construed as an approval for marriage as the second request needs to be initiated and the approval/disapproval will be made at that time.
(Emphasis added.)
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69. After receiving Mr. Hoffman’s letter, Plaintiff GLASS and her fiancé
submitted another application. Defendant KIMOTO denied this application as
well. In a letter dated January 11, 2012, Defendant KIMOTO wrote:
Records indicate that Ms. Glass has been convicted of Conspiracy to Rob 5 Banks, Bank Robbery, and Conspiracy to Commit Bank Robbery and served probation/prison time under the Bureau of Prisons and the U.S. Probation Office. In addition, she was convicted of Theft of Property and was held under the care and custody of the Alabama Department of Corrections.
In accordance with PSD Policy COR.14.13, associating or being in the company of a convicted felon (state/federal) presents a threat to the security and good government of the facility.
70. Plaintiff GLASS was convicted of three felonies in the late 1990s, for
acts committed when she was twenty years old. She served approximately two and
a half years in prison, and has turned her life around. She was released from prison
in 2000 and has had no legal trouble since then. She declares that her past
convictions do not represent the thirty-five-year-old woman she is today.
71. Plaintiff GLASS’s past convictions have not presented any security or
“good government” concerns to date: Plaintiff GLASS and her fiancé speak on a
near daily basis, and they visit in person approximately once a month.
72. Indeed, the Department of Public Safety’s visitation policy uses nearly
identical language regarding safety and “good government,” yet Plaintiff GLASS
has been permitted to visit without incident. According to PSD Policy COR.15.01,
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“[v]isitation may be denied if it is determined that a visitor is detrimental to the rehabilitation and/or reintegration of an inmate or there is a threat to the security and/or good government of the facility concerned.” (Emphasis added.) The policy expressly prohibits the denial of visitation on the basis that the proposed visitor has a criminal background.
73. Such discrimination against individuals with criminal backgrounds is also counter to the State of Hawaii’s public policy. For example, Hawaii Revised Statutes (“HRS”) § 378-2 prohibits employment discrimination on the basis of “arrest and court record.” See also HRS § 378-2.5 (providing that an employer may not make employment decisions based on an employee’s past criminal convictions unless such a decision has a “rational relationship” to the employee’s job duties).
74. Defendants have proffered no reason as to why a change in Plaintiff GLASS’s and her fiancé’s legal status would present a security threat to the Saguaro Correctional Center, when in-person visits and daily phone calls do not.
75. On or about February 9, 2012, Plaintiff GLASS telephoned Defendant BALTERO to discuss the denial of the marriage application. Defendant BALTERO told Plaintiff GLASS something to the effect of “marriage is a privilege, not a right”; that Plaintiff GLASS’s fiancé did not have any rights because he was incarcerated; and that two felons are prohibited from getting
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married. Defendant BALTERO stated that the answer to the marriage application was “no” and that the answer would not change. Defendant BALTERO further stated that Plaintiff GLASS was a security risk.
76. Plaintiff GLASS also spoke about these issues over the telephone with Defendant KIMOTO. Defendant KIMOTO, like Defendant BALTERO, told Plaintiff GLASS that felons are prohibited from marrying one another.
77. Around the end of January 2012, Plaintiff GLASS’s fiancé sent a letter to Defendant KIMOTO asking for an explanation as to why his fiancé’s criminal record would preclude them from marrying. Defendant BALTERO responded in a letter dated February 27, 2012, in which she wrote:
The Department of Public Safety denied your marriage to Ms. Glass based on information provided in both your applications and institutional file. Ms. Glass had a criminal history and although her convictions was [sic] years ago, the Department determined that based on policy associating or being in the company of a convicted felon presents a threat to the security and good government of the facility and does not recommend marriage at this time. 78. Notwithstanding Defendant BALTERO’s and Defendant KIMOTO’s claims that Plaintiff GLASS was a security risk, Plaintiff GLASS and her fiancé continue to speak over the phone daily and have continued to visit one another in person approximately once per month.
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79. Plaintiff GLASS does not anticipate that being married to her fiancé would change anything vis-à-vis the Saguaro Correctional Center or the State of Hawaii. The change in legal status would, however, provide both Plaintiff GLASS and her fiancé with immeasurable emotional benefits.
80. Defendant KIMOTO’s and Defendant BALTERO’s actions caused Plaintiff GLASS emotional distress. She became very upset every time the application was denied and every time she had to endure telephone conversations with Defendant BALTERO. Plaintiff GLASS would get her hopes up that she and her fiancé could get married, only to have those hopes destroyed by Defendant BALTERO and Defendant KIMOTO. Plaintiff GLASS was also hurt by Defendant BALTERO and Defendant KIMOTO using Plaintiff GLASS’s criminal background from well over a decade ago as a rationale for the marriage application.
81. Defendants’ actions in preventing Plaintiff GLASS from marrying have caused her emotional distress, psychological harm, humiliation, pain, and suffering.
82. Plaintiff GLASS and her fiancé meet the legal requirements for marriage in both Hawaii and Arizona: both are over eighteen years old; neither is married; the two are not related to one another by blood; and Plaintiff GLASS can afford the small application fee for a marriage license in either state.
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Previous ACLU Intervention
83. In 2010, a Saguaro prisoner and his fiancé on Oahu (who was not, and
is not, incarcerated) submitted an application to be married. That application was
denied. In a letter to the prisoner dated November 3, 2010, Defendant KIMOTO
wrote:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. . . .
We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancée will be detrimental to any future reintegrative efforts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility’s walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.
84. On December 1, 2010, Plaintiffs’ counsel sent a letter to Defendant
KIMOTO on behalf of the woman on Oahu, demanding that Defendant KIMOTO
cease interfering with the fundamental rights of the couple to marry, and further
demanding that the Department of Public Safety review and revise all necessary
policies.
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85. On December 6, 2010, counsel for Plaintiffs had a telephone conversation with Thomas Read, then the Offender Management Administrator within the Department of Public Safety. During that conversation, Mr. Read stated that the Department of Public Safety would amend its then-current marriage policy and would re-evaluate the marriage request. Mr. Read also indicated that prisoners’ requests to get married were not unusual.
86. In a letter dated December 7, 2010, Mr. Read stated that the prisoner’s request to marry had been “reconsidered” and was conditionally granted. The prisoner and his fiancée were married in March 2011 in Arizona. Plaintiffs’ Ongoing Injuries
87. Plaintiffs wish to marry individuals who are incarcerated under the custody and control of the Department of Public Safety (which, in turn, is under the control of Defendant MAESAKA-HIRATA, see paragraph 28, supra).
88. Marriage is a unique status; nothing else conveys to the world, in so universal a way, that a couple is legally, emotionally, financially, and (for many) spiritually tied to one another. Additionally, for many individuals, being married provides financial benefits (for example, tax benefits and/or survivorship benefits) unavailable through other means.
89. Plaintiffs are suffering – and unless Defendants are enjoined, will continue to suffer – irreparable harm from the prohibition on exercising their
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fundamental right to marry under the Fourteenth Amendment to the United States Constitution.
90. As such, Plaintiffs seek a declaration that Defendants’ denials of their applications to marry were and are unlawful, pursuant to the Fourteenth Amendment to the United States Constitution. Scope of Defendants’ Unlawful Actions
91. Plaintiffs are informed and believe, and thereupon allege, that Defendants have denied marriage applications of dozens, if not hundreds, of other couples’ applications to marry. Plaintiffs are informed and believe, and thereupon allege, that Wardens of small jails/prisons in Hawaii (such as the Maui Community Correctional Center) receive approximately one marriage application per month from prisoners and/or their fiancés, such that the total number of marriage applications denied over the previous two years is in the dozens, if not hundreds.
92. Plaintiffs are informed and believe, and thereupon allege, that Defendants have thereby interfered with the fundamental rights of dozens, if not hundreds, to marry.
DECLARATORY AND INJUNCTIVE RELIEF 93. An actual and immediate controversy has arisen and now exists between Plaintiffs and Defendants, which parties have genuine and opposing interests and which interests are direct and substantial. Defendants have failed and
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continue to fail to comply with the United States and Hawaii Constitutions for at least the reasons set forth herein. Plaintiffs are, thus, entitled to a declaratory judgment as well as such other and further relief as may follow from the entry of such a declaratory judgment.
94. Plaintiffs have no adequate remedy at law. Unless enjoined by the Court, Defendants will continue to infringe Plaintiffs’ constitutionally protected rights and will continue to inflict irreparable injury. This threat of injury to Plaintiffs from continuing violations requires preliminary and permanent injunctive relief.
FIRST CLAIM FOR RELIEF Violation of the Fourteenth Amendment to the United States Constitution
(Actionable Pursuant to 42 U.S.C. § 1983) (Denial of Fundamental Right to Marry) (By All Plaintiffs Against All Defendants)
95. Plaintiffs reallege and incorporate by reference as though fully contained herein, the allegations set forth in Paragraphs 1 through 105, above.
96. By their policies, practices, and customs of denying civilians the fundamental right to marry individuals who are incarcerated by the State of Hawaii, by their failure to adopt adequate policies and procedures, and by their failure to supervise and to train their employees and agents, Defendants have, without adequate justification, intentionally interfered with Plaintiffs’ fundamental
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rights to marry in violation of the Fourteenth Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
A. Assume jurisdiction over this action; B. Issue a declaratory judgment stating that Defendants have violated
the Fourteenth Amendment to the United States Constitution; C. Issue a preliminary and permanent injunction enjoining Defendants
(and their divisions, officers, servants, employees, attorneys, agents and representatives, successors-in-office and all persons acting or purporting to act in concert or in cooperation with Defendants or pursuant to Defendants’ authority) from subjecting Plaintiffs to the customs, policies, practices, rules, regulations, acts and omissions set forth in this Complaint; D. Retain jurisdiction over Defendants until such time as the Court is satisfied that Defendants’ unlawful customs, policies, practices, rules, regulations, acts and omissions complained of herein no longer exist and will not recur;
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E. Award reasonable attorneys’ fees, costs and other expenditures incurred as a result of bringing this action, pursuant to 42 U.S.C. § 1988 and other applicable laws;
F. Award damages to Plaintiffs (against those Defendants named in their individual capacities) for the violations of clearly established law set forth herein; and
G. Order such other relief as this Court deems just and proper. Dated: Honolulu, Hawaii, May 29, 2012.
Respectfully submitted, /s/ Daniel M. Gluck DANIEL M. GLUCK LOIS K. PERRIN DANIEL M. GLUCK LAURIE A. TEMPLE ACLU OF HAWAII FOUNDATION Attorneys for Plaintiffs
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 Case 1:12-cv-00259-SOM-BMK Document 48 Filed 07/10/12 Page 1 of 8 PageID #: 669

ACLU OF HAWAII FOUNDATION

LOIS K. PERRIN

8065

DANIEL M. GLUCK

7959

LAURIE A. TEMPLE

8716

ACLU OF HAWAII FOUNDATION

P.O. Box 3410

Honolulu, Hawaii 96801

Telephone: (808) 522-5908

Facsimile: (808) 522-5909

E-mail: dgluck@acluhawaii.org

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

LENORA SANTOS, JUNELL FAITH ALIVIADO and JAMIQUIA GLASS,
Plaintiffs,
vs.
SHARI KIMOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; JEANETTE BALTERO, Contract Monitor, Department of Public Safety, State of Hawaii, in her individual and official capacities; TED SAKAI, Interim Director, Department of Public Safety, State of Hawaii, in his official capacity; and DOES 1-30,
Defendants.

CIV. NO. 12-00259 SOM/BMK STIPULATED FACTS

Case 1:12-cv-00259-SOM-BMK Document 48 Filed 07/10/12 Page 2 of 8 PageID #: 670
STIPULATED FACTS The parties agree, through the undersigned counsel, to the following Stipulated Facts. The facts in this stipulation may be received into evidence in lieu of further proof or testimony. The parties also stipulate to certain exhibits. Pursuant to Local Rule 10.2(d), the parties will refer to the docket entries at which these exhibits appear. Hard copies of each exhibit will be provided to the Court, numbered/tabbed as “Stipulated Exhibit 1,” etc., as noted herein. 1. The Department of Public Safety (“DPS”) will not allow a prisoner to marry any other individual without the permission of DPS. 2. In order to obtain permission from DPS, the prisoner must complete some application materials, which includes a portion completed by the prisoner’s fiancée. The completed application is then submitted to DPS. 3. DPS has a policy on inmate marriages. A true and correct copy of the current policy, COR.14.13, effective June 8, 2011, which appears in the Docket as #10-17, is Stipulated Exhibit 1. 4. A true and correct copy of the previous version of COR.14.13, effective December 12, 2009, which appears in the Docket as #46-4, is Stipulated Exhibit 2.
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Plaintiff Glass and her fiancé, Reginald Pettway 5. Plaintiff Jamiquia Glass is engaged to be married to Reginald
Pettway. Mr. Pettway is under the custody of the State of Hawaii, and is currently incarcerated at the Saguaro Correctional Center in Arizona.
6. Ms. Glass lives in Alabama and visits Mr. Pettway at the Saguaro facility approximately once a month. Ms. Glass and Mr. Pettway speak over the telephone and write to one another regularly.
7. Ms. Glass has been engaged to be married to Mr. Pettway for approximately two years, and continues to want to marry him today.
8. In the fall of 2010, DPS received an application for Mr. Pettway and Ms. Glass to be married. That application was denied in a letter from Defendant Shari Kimoto; a true and correct copy of that letter, dated October 4, 2010, which appears in the Docket as #10-8, is Stipulated Exhibit 3.
9. DPS received another application for Mr. Pettway and Ms. Glass to be married shortly thereafter. That application was denied in a letter from Ms. Kimoto; a true and correct copy of that letter, dated May 17, 2011, which appears in the Docket as #10-9, is Stipulated Exhibit 4.
10. In a letter dated June 27, 2011, Mr. Pettway contacted the thenDirector of DPS, Defendant Jodie Maesaka-Hirata, to appeal the denial of the marriage application. Michael Hoffman, the Institutions Division Administrator
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for DPS, responded on behalf of the Director; a true and correct copy of Mr. Hoffman’s letter, dated October 8, 2011, which appears in the Docket as #10-10, is Stipulated Exhibit 5.
11. After Mr. Hoffman sent the October 8, 2011 letter, DPS received another application for Mr. Pettway and Ms. Glass to be married. That application was denied in a letter from Ms. Kimoto; a true and correct copy of that letter, dated January 11, 2012, which appears in the Docket as #10-11, is Stipulated Exhibit 6.
12. Ms. Kimoto recommended that the application for Mr. Pettway and Ms. Glass to marry be approved. Mr. Hoffman concurred with this recommendation. Defendants contend, and Plaintiffs do not dispute, that Ms. Kimoto’s and Mr. Hoffman’s supervisor, then-Deputy Director for Corrections Joe Booker, overruled the recommendation and denied the application.
13. In January 2012, Mr. Pettway sent a letter to Ms. Kimoto regarding the January 2012 denial. Defendant Jeanette Baltero responded in a letter dated February 27, 2012; a true and correct copy of that letter, which appears in the Docket at #10-12, is Stipulated Exhibit 7.
14. Defendants contend that the marriage of Mr. Pettway and Ms. Glass would present a threat to the security and good government of a correctional institution pursuant to COR.14.13. Defendants do not argue that the marriage would present a threat to the protection of the public.
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15. Ms. Glass was convicted of three felonies in the 1990s. She was released from prison in 2000 and has no criminal record since that date.
16. Both Ms. Pettway and Ms. Glass are over 18 years old. They are not related to one another, and neither of them is married. They can afford to pay the application fee for a marriage license in either Arizona or Hawaii. Plaintiff Aliviado and her fiancé, James G. Freitas, Jr.
17. Plaintiff Junell Faith Aliviado is engaged to be married to James G. Freitas, Jr. Mr. Freitas is under the custody of the State of Hawaii, and is currently incarcerated at the Saguaro Correctional Center in Arizona.
18. Ms. Aliviado lives in Hawaii and visits Mr. Freitas at the Saguaro facility approximately two to three times a year. Ms. Aliviado and Mr. Freitas speak over the telephone and exchange letters regularly.
19. Ms. Aliviado has been engaged to Mr. Freitas for several years, and continues to want to marry him today.
20. In July 2011, DPS received an application for Mr. Freitas and Ms. Aliviado to be married. As required by DPS, both Ms. Aliviado and Mr. Freitas completed portions of the marriage application. That application was denied in a letter from Ms. Kimoto; a true and correct copy of that letter, dated August 9, 2011, which appears in the Docket at #10-5, is Stipulated Exhibit 8.
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21. In November 2011, DPS received another application for Mr. Freitas and Ms. Aliviado to be married. That application was denied in a letter from Ms. Kimoto; a true and correct copy of that letter, dated December 20, 2011, which appears in the Docket as #10-6, is Stipulated Exhibit 9.
22. Ms. Aliviado has three adult children and one minor child; her minor child is sixteen years old.
23. Ms. Aliviado does not have a criminal record. 24. Mr. Freitas is serving a prison sentence for sexual assault of a minor. He has approximately ten years left on his sentence at present, though he is not subject to a mandatory minimum term. 25. Defendants contend that the marriage of Mr. Freitas and Ms. Aliviado would present a threat to the protection of the public pursuant to COR.14.13. Defendants do not argue that the marriage would present a threat to the security and good government of a correctional institution. 26. Both Ms. Aliviado and Mr. Freitas are over 18 years old. They are not related to one another, and neither of them is married. They can afford to pay the application fee for a marriage license in either Arizona or Hawaii.
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Additional stipulated exhibits 27. A true and correct copy of DPS Policy COR.15.01, entitled
“Restricted Visitors,” effective date April 21, 2010, which appears in the Docket as #10-18, is Stipulated Exhibit 10.
28. A true and correct copy of DPS Policy COR.15.04, entitled “Visitation,” effective date February 17, 2010, which appears in the Docket as #1018, is Stipulated Exhibit 10-19, is Stipulated Exhibit 11. Stipulation as to authenticity of documents
29. The parties stipulate as to the authenticity of the following documents, though Defendants maintain that these documents are not relevant to the instant case:
30. A true and correct copy of a letter from Shari Kimoto to Roy Kaiama, Jr., dated November 3, 2010, which appears in the Docket as #10-14, is Stipulated Exhibit 12.
31. A true and correct copy of a letter from Daniel Gluck to Shari Kimoto, dated December 1, 2010, which appears in the Docket as #10-15, is Stipulated Exhibit 13.
32. A true and correct copy of a letter from Tom Read to Roy Kaiama, Jr., dated December 7, 2010, which appears in the Docket as #10-16, is Stipulated Exhibit 16, is Stipulated Exhibit 14.
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2012 WL 3202222 Only the Westlaw citation is currently available.
United States District Court, D. Hawai’i.
Junell Faith ALIVIADO and Jamiquia Glass, Plaintiffs, v.
Shari KIMOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; Jeanette Baltero, Contract Monitor, Department of Public
Safety, State of Hawaii, in her individual and official capacities; Ted Sakai, Interim Director, Department of Public Safety, State of Hawaii, in his official capacity; and Does 1–30, Defendants.
Civ. No. 12–00259 SOM–BMK. | Aug. 2, 2012.
Opinion
ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
SUSAN OKI MOLLWAY, Chief Judge.
I. INTRODUCTION. *1 Plaintiffs Junell Faith Aliviado and Jamiquia Glass allege that Defendants Shari Kimoto, Jeanette Baltero, and Ted Sakai are allegedly interfering with their constitutional right to marry.1 Plaintiffs want to marry State of Hawaii prison inmates now housed, pursuant to a state contract, at the Saguaro Correctional Center in Arizona. The Department of Public Safety for the State of Hawaii (“DPS”) requires prisoners to obtain approval to marry. Applications to marry submitted by Plaintiffs’ fiancés to marry Aliviado and Glass have been repeatedly denied by DPS. Plaintiffs seek damages from Defendants, who are DPS employees, and injunctive relief.
Plaintiffs have moved for an order preliminarily enjoining Defendants from interfering with their right to marry their incarcerated fiancés. They argue that they have an overwhelming likelihood of success on their claim that Defendants have violated the Fourteenth Amendment of the United States Constitution by interfering with their fundamental right to marry, and that the continuing violation of their constitutional right to marry is causing

them irreparable injury in the form of being denied the emotional, spiritual, and legal benefits of marriage. Plaintiffs also argue that the balance of hardships tips sharply in their favor, as Defendants “would suffer no discernible harm” if a preliminary injunction were granted. Finally, Plaintiffs contend that granting an injunction is in the public interest because it would ensure the protection of constitutional rights. Concluding that all four preliminary injunction factors weigh in favor of granting the requested injunction, the court grants Plaintiffs’ motion.
II. FINDINGS OF FACT. This court held an evidentiary hearing on July 12, 2012, receiving direct testimony through its usual nonjury trial procedure of having direct testimony submitted in declaration form and having witnesses available for live cross-examination and redirect examination. The parties have also stipulated to certain facts.
From Plaintiffs, the court received the declarations of Junell Faith Aliviado, Jamiquia Glass, and Laurie Temple, and excerpts from the deposition of Shari Kimoto. At the hearing, Kimoto was cross-examined by Defendants and provided testimony on redirect examination by Plaintiffs.2
From Defendants, the court received the declaration of Shari Kimoto, with no live cross-examination requested. The court also received various documents as exhibits. Based on the testimony and exhibits received in evidence, the court finds the following facts.
To the extent any finding of fact should more properly be designated a conclusion of law, it should be treated as a conclusion of law. Similarly, to the extent any conclusion of law should more properly be designated a finding of fact, it should be treated as a finding of fact. For ease of reference to particular findings and conclusions in later proceedings, if any, the findings and conclusions are presented in sequential numbered paragraphs.
*2 1. Plaintiffs Junell Faith Aliviado and Jamiquia Glass want to marry prison inmates now held by the State of Hawaii at the Saguaro Correctional Center in Arizona. Stipulated Facts ¶¶ 5, 17, ECF No. 48; Decl. of Junell Faith Aliviado (“Aliviado Decl.”) ¶ 2, ECF No. 10–4; Decl. of Jamiquia Glass (“Glass Decl.”) ¶ 2, ECF No. 10– 7.
2. Plaintiff Jamiquia Glass is engaged to Reginald Pettway. Stipulated Facts ¶ 5. Glass and Pettway have
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been dating since 2007, approximately two and a half years before Pettway was incarcerated. Id. ¶ 7; Glass Decl. ¶ 2. Glass lives in Mobile, Alabama, and visits Pettway approximately once a month. Stipulated Facts ¶ 6; Glass Decl. ¶ 3. They speak on the phone daily and frequently write to one another. Id.
3. Glass loves Pettway and describes him as her “best friend.” Glass Decl. ¶ 4. She has strong religious convictions and wants to marry Pettway for religious and spiritual reasons. See Id.
4. Plaintiff Junell Faith Aliviado is engaged to James G. Freitas, Jr. Stipulated Facts ¶ 17. Aliviado and Freitas have been dating for seven years and began their relationship approximately one year before Aliviado was incarcerated. Aliviado Decl. ¶ 2. They speak on the phone nearly every day, sometimes more than once a day. Id. ¶ 3.
5. Aliviado visits Freitas two to three times a year. Stipulated Facts ¶ 18. She last visited him in April 2012 and hopes to visit him again this coming October. Aliviado Decl. ¶ 3. Aliviado and Freitas conduct video visits with one another approximately every other month. Id. They also exchange letters. Id. Aliviado wants to marry Freitas because she feels close to him. Id. ¶ 9. She hopes they can get married when she visits him in October. Id. ¶ 10.
6. Plaintiffs and their fiancés meet the legal requirements for marriage. They are over eighteen years old and not married. Stipulated Facts ¶¶ 16, 26. Neither Plaintiff is related to her fiancé. Id. Both couples can afford the marriage application fees in Hawaii and Arizona. Id.
7. A State of Hawaii inmate must obtain permission from DPS to marry any individual, including a nonprisoner. Stipulated Facts ¶ 1. An inmate seeking to marry must submit a DPS application that includes a section to be completed by the individual the inmate seeks to marry. Stipulated Facts ¶ 2. Although DPS treats the marriage application as submitted by the inmate, DPS will accept a completed application from the person the inmate seeks to marry, provided the application is complete. Deposition of Shari Kimoto (“Kimoto Dep.”) at 42:22–43:20, ECF No. 46–3; Redirect Examination of Shari Kimoto.
8. Once received by DPS, the application is reviewed by a social worker, who makes a recommendation as to whether the application should be granted or denied. Kimoto Dep. at 40:2–18. The recommendation goes to Defendant Kimoto, who determines whether to grant or deny the application. Id. at 40:2–18. Kimoto’s decision is

reviewed by the Institutions Division Administrator and the Deputy Director for Corrections. Id. at 41:8–42:21. The Deputy Director makes the final determination as to whether the application should be granted or denied. Live Cross–Examination of Shari Kimoto.
*3 9. DPS promulgated its current policy governing inmate marriages on June 8, 2011. Stipulated Facts ¶ 3. That policy, COR.14.13, states that a warden shall consider the following factors in determining whether to grant or deny an inmate’s application to marry:
1) Whether or not a legal restriction to marriage exist[s] (i.e. not divorced yet, TRO history that can be verified)
2) Whether or not the proposed marriage presents a threat to the security or the good government of the institution or to the protection of the public.
Declaration of Daniel M. Gluck (“Gluck Decl.”) at Ex. 4 (Stipulated Ex. 1) at 1, ECF No. 10–18.
10. The DPS policy regarding visitation, COR.15.01, is similar to COR.14.13. The visitation policy states, “Visitation may be denied if it is determined that a visitor is detrimental to the rehabilitation and/or reintegration of an inmate or there is a threat to the security and/or good government of the facility concerned.” Gluck Decl. at Ex. 5 (Stipulated Ex. 10) at 1, ECF No. 10–18.
11. Kimoto is unaware of any standards used by DPS when it applies its marriage policy. Kimoto Dep. at 47:18–23. DPS provides no training to its social workers to determine whether an inmate presents a threat to the security or good government of an institution or to the general public. Id. at 47:24–48:01.
Jamiquia Glass. 12. Glass and Pettway submitted their first marriage application in 2010. Stipulated Facts ¶ 8; Glass Decl. ¶ 5. DPS denied the application by letter from Kimoto, dated October 4, 2010. The letter stated:
As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. Records indicate that your parole hearing is April 2016.
We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-toface with your fiancée will be detrimental to any future
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reintegrative efforts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility’s walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.
Glass Decl. at Ex. 1 (Stipulated Ex. 3), ECF No. 10–8.
13. On an unknown date thereafter, Glass and Pettway submitted another marriage application. Stipulated Facts ¶ 9. That application was denied by a nearly identical letter from Kimoto, dated May 17, 2011. Id. Kimoto describes the letter as a “form letter” and does not know where it originated. Kimoto Dep. at 63:14–24.
14. Both applications were submitted and denied before DPS promulgated the current version of COR 14.13.
15. On June 27, 2011, Pettway appealed the denial of his second marriage application. Stipulated Facts ¶ 10. Michael Hoffman, the Institutions Division Administrator, responded on behalf of the Director of DPS by letter dated October 8, 2011. Id. The letter stated:
*4 After review of the matter, I believe you should initiate another request. Once I receive your request from the Mainland Branch, I will take your appeal into consideration and render a decision since at this time it does not appear there are any reasons for a denial. This letter should not be construed as an approval for marriage as the second request needs to be initiated and the approval/disapproval will be made at that time.
Glass Decl. at Ex. 3 (Stipulated Ex. 5), ECF No. 10–10.
16. Pettway and Glass submitted another marriage application after receiving Hoffman’s letter. Stipulated Facts ¶ 11. On January 11, 2012, DPS denied the application, again by letter from Kimoto. Id. The letter stated:
Records indicate that Ms. Glass has been convicted of Conspiracy to Rob 5 Banks, Bank Robbery, and Conspiracy to Commit Bank Robbery and served probation/prison time under the Bureau of Prisons and the U.S. Probation Office. In addition, she was convicted of Theft of Property and was held under the

care and custody of the Alabama Department of Corrections.
In accordance with PSD Policy COR.14.13, associating or being in the company of a convicted felon (state/federal) presents a threat to the security and good government of the facility.
Glass Decl. at Ex. 4 (Stipulated Ex. 6), ECF No. 10–11.
17. Glass was convicted of three felonies in the 1990s for crimes she committed when she was 20 years old. Stipulated Facts ¶ 15; Glass Decl. ¶ 9. She was sentenced to time in prison and was released in 2000. Id.
18. Pettway wrote Kimoto a letter at the end of January 2012 asking her why Glass’s criminal record was preventing their marriage. Stipulated Facts ¶ 13; Glass Decl. ¶ 11. Defendant Jeanette Baltero responded on behalf of Kimoto in a letter dated February 27, 2012, stating:
The Department of Public Safety denied your marriage to Ms. Glass based on information provided in both your applications and institutional file. Ms. Glass had a criminal history and although her convictions [were] years ago, the Department determined that based on policy associating or being in the company of a convicted felon presents a threat to the security and good government of the facility and does not recommend marriage at this time.
Stipulated Facts ¶ 13; Glass Decl at Ex. 5 (Stipulated Ex. 7), ECF No. 10–12.
19. According to DPS, Glass and Pettway’s marriage application was denied based on a purported threat to the security or good government of the facility. Stipulated Facts ¶ 14.
20. Although she had written correspondence denying Glass and Pettway’s marriage application, Kimoto had actually recommended approval of their final application, only to be overruled by the Deputy Director for Corrections, Joe Booker. Decl. of Shari Kimoto (“Kimoto Decl.”) ¶ 10, ECF No. 34–1.
21. The denials of the marriage applications caused Glass pain. Glass Decl. ¶ 13. She was particularly upset that she was unable to marry Pettway based on her past felony
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convictions. Id. She has worked hard to turn her life around and has had no trouble with the law since her release from prison. Id. ¶ 9.
*5 22. The Saguaro Correctional Center has a policy that inmates’ visitors must be “clear of any felony” for five years. Kimoto Dep. at 82:2–8. There are currently no restrictions on Glass’s ability to visit or speak with Pettway that are not applied to all other visitors. Id. at 85:04–09. She is able to visit Pettway in person, talk with him over the phone, and put money into his accounts. Id. at 87:11–20.
23. If Glass and Pettway marry, the Saguaro Correctional Center will not restrict contact between Glass and Pettway, nor will it permit Glass and Pettway to have any additional contact. Id. at 89:19–25; 95:1–23. The Saguaro Correctional Center will not have to change any of its practices if Glass and Pettway are married; DPS will only have to update Pettway’s inmate record. Id. at 95:4–8.
Junell Faith Aliviado. 24. Aliviado and Freitas first applied to be married approximately five years ago. Aliviado Decl. ¶ 4. That application was denied by DPS. Id.
25. Aliviado and Freitas submitted a second application on July 5, 2011. Stipulated Facts ¶ 20; Aliviado Decl. ¶ 5. That application was denied by a letter from Kimoto dated August 9, 2011. Id. The letter is nearly identical to the form letters received by Pettway and states that Freitas is “incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to survive.” Aliviado Decl. at Ex. 1 (Stipulated Ex. 8), ECF No. 10–5.
26. On November 28, 2011, after Aliviado had spoken with an official from the State of Hawaii’s Office of the Ombudsman, Aliviado and Freitas submitted another marriage application to DPS. Stipulated Facts ¶ 21; Aliviado Decl. ¶¶ 6–7. That application was also denied by a letter from Kimoto dated December 20, 2011, stating:
Records indicate that you were convicted of sexually assaulting your biological child from the age of 8 to 17. Ms. Aliviado currently has a minor in her care and custody.
In accordance with PSD Policy COR.14.13, your conviction of sexually assaulting your own biological child who was a minor at the time of the assaults and knowing that your fiancé [sic], Ms. Aliviado has a

minor child in her care and custody, presents a threat to the protection of the public.
Aliviado Decl. at Ex. 2 (Stipulated Ex. 9), ECF No. 10–6.
27. Aliviado and Freitas’s application was denied based on a purported threat to public safety. Stipulated Facts ¶ 25. DPS has no policy prohibiting sex offender inmates from marrying individuals with minor children. Kimoto Dep. at 64:21–24.
28. Aliviado’s only minor child is sixteen years old; her three other children are adults. Stipulated Facts ¶ 22.
29. Freitas’s sentence will end in approximately ten years. Id . ¶ 24. His parole hearing is scheduled for August 23, 2022. See Aliviado Decl. at Ex. 1 (Stipulated Ex. 8). Freitas is not subject to a mandatory minimum and may be eligible for release prior to the conclusion of his sentence. Stipulated Facts ¶ 24; Kimoto Decl. ¶ 13.
*6 30. The parole board, not DPS, determines whether an inmate is eligible for parole. Kimoto Dep. at 62:10–14. As far as Kimoto knows, DPS did not consult with the parole board before denying Aliviado and Freitas’s marriage application. Id. at 62:15–25.
31. Aliviado was heartbroken and sad for months after her marriage applications were denied. Aliviado Decl. ¶ 9.
Previous Denial of an Inmate’s Marriage Application. 32. In November 2010, DPS denied the marriage application of another inmate housed at the Saguaro Correctional Center using the same form letter that Kimoto initially sent to Pettway and Freitas. See Gluck Decl. at Ex. 1 (Stipulated Ex. 13), ECF No. 10–14.
23. On December 1, 2010, Plaintiffs’ counsel sent Kimoto a letter on behalf of that inmate’s fiancée, demanding that Kimoto cease interfering with the couple’s fundamental right to marry and that DPS review and revise its policies. Gluck Decl. at Ex. 2 (Stipulated Ex. 13), ECF No. 10–15. In a letter dated December 7, 2010, Thomas Read (a former DPS official) stated that the inmate’s marriage application had been “reconsidered” and conditionally granted. Gluck Decl. at Ex. 3 (Stipulated Ex. 14), ECF No. 10–16.
III. CONCLUSIONS OF LAW. 1. A plaintiff seeking a preliminary injunction must establish “[1] that he is likely to succeed on the merits, [2]
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that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). This court may also grant a preliminary injunction when there are “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff,” so long as the plaintiff “shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir.2012) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011)) (quotation marks omitted).
2. When a claimant seeks an injunction requiring a party to take action, “courts should be extremely cautious about issuing a preliminary injunction,” and “should deny such relief ‘unless the facts and law clearly favor the moving party.’ “ Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319– 20 (9th Cir.1994) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1980)). In general, mandatory injunctions “are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.” Anderson, 612 F.2d at 1115.
Likelihood of Success on the Merits. 3. The Fourteenth Amendment to the United States Constitution guarantees Plaintiffs and their fiancés the fundamental right to marry. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (reaffirming that the right to marry is fundamental). Prisoners maintain their fundamental right to marry while incarcerated. See Turner v. Safley, 482 U.S. 78, 95 (1987) (stating that Zablocki applies to prison inmates). Plaintiffs argue that their right to marry is being interfered with by Defendants’ continued refusal of the marriage applications that they and their fiancés have submitted to DPS.
*7 4. Generally, state action that interferes with a fundamental right is subject to strict scrutiny. See, e.g., Zablocki, 434 U .S. at 388; United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir.2012). Under the strict scrutiny test, the challenged action must be “narrowly tailored to serve a compelling state interest.” Juvenile Male, 670 F.3d at 1012.
5. Strict scrutiny does not apply in some prison contexts. In Turner, 482 U.S. at 89, the Supreme Court stated that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”

The Court then applied that standard in determining that a prison regulation relating to inmate marriages unconstitutionally deprived the plaintiffs of their fundamental right to marry. The regulation in issue permitted marriages only with the permission of the superintendent of the prison and provided that such approval was to be given only “when there are compelling reasons to do so.” Id. at 82. The prison officials contended that the regulation was related to security and rehabilitation. Id. at 97.
6. With respect to security, the prison officials said that the regulation prevented “love triangles” that could lead to violent confrontations between inmates. Id. Although security was a legitimate penological interest, the Supreme Court concluded that the regulation was not reasonably related to that interest. The Court viewed the regulation as an “exaggerated response,” noting that there were “obvious and easy alternatives” that accommodated the right to marry “while imposing a de minimis burden on the pursuit of security objectives.” Id. at 98 (citing the requirement in 28 C.F.R. § 551.10 that a warden generally permit inmate marriages, unless the warden finds that the marriage presents a threat to the security or good order of the institution, or to public safety). There was also nothing in the record showing that the regulation had actually been intended to prevent love triangles. Indeed, inmate rivalries were just as likely to develop in the absence of formal marriages. Id.
7. With respect to rehabilitation, the prison officials said they were trying to help women inmates avoid abuse at home and become self-reliant. Id. at 97. They contended that women inmates were often overly dependent on male figures. Id. However, by requiring the superintendent to refuse marriage applications absent a compelling reason, the regulation “swept more broadly” than could have been explained by the prison’s stated objectives. Id. at 98. The prison officials’ rationale gave rise to no objection to male inmates’ marriage requests or to inmate-civilian marriages, but the regulation prohibited those marriages as well. Id. at 99.
8. The Supreme Court also concluded that the proffered rehabilitation interest was suspect. Id. Only one marriage had actually been refused on the ground that it might foster excessive dependence. Id. In addition, the district court had found that the prison system in issue had “operated on the basis of excessive paternalism,” in that marriage requests by all female inmates had been scrutinized carefully even before adoption of the regulation in issue, whereas marriage requests by male inmates had been routinely approved. Id. Thus, the “almost complete ban” on marriages could not be said to
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be reasonably related to any legitimate penological interest and was invalid. Id.
*8 9. In Johnson v. California, 543 U.S. 499, 509 (2005), the Supreme Court clarified that the “reasonably related to legitimate penological interests” test articulated in Turner was not necessarily applicable in every case involving prisoners’ assertions of rights usually requiring the application of strict scrutiny. The Court noted that the Turner test had been applied “only to rights that are ‘inconsistent with proper incarceration.’ “ Id. at 510 (quoting Overton v. Bazetta, 539 U.S. 26, 131 (2003)) (emphasis in original).
10. Plaintiffs argue that this court should apply strict scrutiny because they are asserting violations of their own right to marry, not their inmate-fiancés’ right to marry. In Turner, 482 U.S. at 96–100, the Supreme Court made clear that a regulation infringing on an inmate’s right to marry another inmate would be subject to the “reasonably related to legitimate penological interests” test. However, as recognized by Plaintiffs, the Supreme Court declined to say whether a regulation infringing on a nonprisoner’s right to marry an inmate requires the application of strict scrutiny because it implicates a nonprisoner’s fundamental right. Id. at 97. The Turner court did not reach that question because it concluded that, “even under the reasonable relationship test, the marriage regulation [in issue did] not withstand scrutiny.” Id.
11. This court similarly need not determine on the present motion whether Plaintiffs’ claims require application of strict scrutiny. Defendants’ refusal to allow Plaintiffs to marry their fiancés is likely not reasonably related to legitimate penological interests.
12. Plaintiffs do not appear to be challenging the DPS inmate marriage policy, COR.14.13, on its face. Plaintiffs are challenging COR.14.13 as it has been applied to Plaintiffs and their fiancés. In ruling on an as-applied challenge, this court examines whether the application of COR.14.13 to Plaintiffs is reasonably related to legitimate penological interests. See Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir.2004) (“The Turner analysis applies equally to facial and ‘as applied’ challenges.” (citing Morrison v. Hall, 261 F.3d 869, 905, 907 (9th Cir.2001)); Hargis v. Foster, 312 F.3d 404, 410 (9th Cir.2002).
13. In Turner, the Supreme Court identified four factors relevant to determining if a prison regulation is reasonably related to legitimate penological interests.
First, there must be a “valid, rational connection” between the prison regulation and the legitimate

governmental interest put forward to justify it. Thus, a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. Moreover, the governmental objective must be a legitimate and neutral one....
A second factor relevant in determining the reasonableness of a prison restriction ... is whether there are alternative means of exercising the right that remain open to prison inmates....
*9 A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally....
Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an “exaggerated response” to prison concerns....
482 U.S. at 89–91 (internal citations omitted).
14. The Ninth Circuit considers the first Turner factorwhether the regulation in issue is rationally related to a legitimate penological interest—a “sine qua non.” Morrison, 261 F.3d at 901 (quoting Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990)). In Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir.2001), the Ninth Circuit did not even consider the other three Turner factors once it determined that the defendants had not shown that the regulation in issue was rationally related to a legitimate penological interest.
15. “Ordinarily, ‘even in the absence of institutionspecific or general social science evidence, as long as it is plausible that prison officials believed the policy would further a legitimate objective, the governmental defendant should prevail on Turner’s first prong.’ “ Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 881 (9th Cir.2002) (quoting Frost v. Symington, 197 F.3d 348, 355 (9th Cir.1999)). “However, if the regulation’s challengers present sufficient (pre or post) trial evidence that refutes the common-sense connection between a legitimate objective and a prison regulation, the state must present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational.” Id. (quoting Frost, 197 F.3d at 355) (quotation marks omitted and format altered).
16. The court agrees with Defendants that they have likely identified legitimate penological interests for prohibiting Plaintiffs’ marriages. Defendants purport to have denied
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Glass’s application out of concern for the security and good government of the prison, and they contend that Aliviado’s application was denied because her proposed marriage to Freitas posed a threat to the safety of the public. However, Defendants’ reasons for believing that the security of the prison or the safety of the public would be threatened by Plaintiffs’ marriages do not appear to be rationally related to those interests.
17. Defendants denied Glass and Pettway’s marriage application to prevent Pettway from associating with Glass because she is a convicted felon. The court does not see how prohibiting their marriage actually prevents Pettway from associating with Glass. Plaintiffs’ evidence demonstrates that DPS already permits Glass and Pettway to associate with one another; Glass visits Pettway in person, talks to him on the phone, and puts money into his account. If married, Glass and Pettway will not be entitled to any additional privileges allowing them to associate more than they do now.
*10 18. Defendants also do not explain why a marriage between Glass and Pettway poses a security risk at all. Glass has visited Pettway many times, and there is no evidence that she has done anything suspicious. Although she is a convicted felon, Defendants do not challenge Glass’s contention that she has had no legal trouble since being released from prison in 2000. Moreover, Glass has been permitted to visit Pettway despite the regulation permitting DPS to deny visitation when it poses a threat to the security or good government of the prison. The court fails to see how the marriage of Glass to Pettway could pose a security risk if Glass’s visitation does not. Defendants present no counter-evidence showing that their refusal to allow Glass and Pettway to marry is in fact connected to prison security.
19. With respect to Aliviado, Defendants apparently want to prevent Freitas from sexually assaulting Aliviado’s sixteen-year-old minor child. However, the court does not see how preventing the marriage of Aliviado and Freitas has any impact at all on any threat Freitas allegedly poses to Aliviado’s child.
20. Defendants appear to be prohibiting the marriage of Aliviado to Freitas with the hope of limiting Freitas’s contact with Aliviado’s child once Freitas is released from prison. But DPS will have no authority to prohibit any marriage or contact when Fretias is no longer incarcerated, and Aliviado and Freitas do not need the legal status of marriage to spend time together or cohabitate.
21. In addition, as Plaintiffs point out, Freitas’s sentence

is not presently scheduled to end for many more years. His parole hearing is scheduled to be held in 2022, long after Aliviado’s sixteen-year-old child becomes an adult. Although, as Defendants argue, Freitas may be released early, Defendants are at this point only speculating that he will be released while Aliviado’s child is a minor or living with her. See Cal. First Amendment Coal., 299 F.3d at 882 (holding that the first Turner factor was not satisfied in part because a justification given for the prison regulation in issue was purely speculative).
22. Even if Freitas is released while Aliviado has a minor child in her custody, the court questions whether Defendants’ speculation that Freitas will sexually assault that child is sufficient to prohibit marriage. There is no DPS policy preventing sex offenders from marrying individuals with minor children. Defendants fail to present any evidence that prohibiting a marriage is rationally connected to the safety of Aliviado’s child, or any other member of the public. If Aliviado wants to be with Freitas once he is released, marriage has no bearing on whether Aliviado’s child will come into contact with Freitas. While DPS may want Aliviado to take precautions to protect her child, a prohibition on marriage is not a rational means of achieving that goal.
23. Even if there were a rational connection between prohibiting Plaintiffs’ marriages and Defendants’ legitimate penological interests such that the first Turner factor were satisfied, the three remaining Turner factors would not militate in favor of upholding the DPS action. With respect to the second Turner factor—whether alternative means exist for inmates to exercise their right to marry—there are no alternative ways for Plaintiffs and their fiancés to marry, as inmates must obtain permission from DPS. The third factor-the impact of allowing Plaintiffs and their fiancés to marry and the allocation of prison resources—also weighs in favor of Plaintiffs. If Plaintiffs are allowed to marry, it appears that the only impact on Defendants would be that Defendants would need to coordinate the logistics of the weddings such as the dates and times, and update DPS records once the marriages are complete. Finally, the fourth factor— whether alternatives to Defendants’ challenged conduct exist—appears to favor Plaintiffs or be neutral at most. Plaintiffs do not identify any alternatives, but Defendants could conceivably restrict Glass’s visitation if she indeed posed a security risk, or recommend to the parole board that Freitas’s relations with Aliviado’s minor child be monitored.
*11 24. The court thus concludes that Plaintiffs are likely to succeed on the merits of their claim that Defendants are unlawfully interfering with their constitutional right to
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marry.
Irreparable Harm. 25. Having concluded that Plaintiffs are likely to succeed on the merits, the court turns to the preliminary injunction requirement of irreparable harm. “An alleged constitutional infringement will often alone constitute irreparable harm.” Goldie’s Bookstore, Inc. v. Superior Court of Cal., 739 F.2d 466, 472 (9th Cir.1984) (citing Wright & Miller, 11 Federal Practice and Procedure § 2948 at 440 (1973)). Plaintiffs are suffering irreparable harm by being continuously denied their right to marry. The Supreme Court has stated that marriage is an expression of emotional support and public commitment, that marriage carries spiritual significance, and that marriage is often a precondition to the receipt of government benefits, property rights, and other less tangible benefits. Turner, 482 U.S. at 95. Every day that Plaintiffs are unable to marry they are denied these benefits. Plaintiffs are also experiencing emotional harm, in that they are “upset,” “sad,” and “heartbroken.”
26. The court is not persuaded by Defendants’ argument that Plaintiffs will not suffer irreparable harm absent a preliminary injunction because they have been, and will continue to be, able to regularly visit and speak to their fiancés. Defendants fail to recognize the many emotional, legal, and social benefits of marriage that Plaintiffs are seeking, as well as the emotional harm that Plaintiffs are suffering because they are unable to marry.
Balance of Equities. 27. The third factor in the injunctive relief analysis concerns the balance of equities. The court agrees with Plaintiffs that the balance of equities tips in their favor. Defendants argue that the equities favor denying the injunction because granting the injunction will effectively preclude adjudicating this case on the merits, as it would provide all the relief Plaintiffs seek in their complaint. That is incorrect. Although granting the injunction will afford Plaintiffs all the injunctive relief they have requested, Plaintiffs are also seeking money damages.
28. Defendants also argue that granting the injunction will undermine the ability of DPS to enforce valid prison regulations. The court disagrees. The requested injunction relates to one DPS regulation, COR.14.13, as applied to two individuals and their inmate-fiancés. The injunction will not preclude the lawful enforcement of COR.14.13, or any other DPS regulation. To the extent Defendants are arguing that DPS will be discouraged from enforcing its

own regulations out of fear that it will be further enjoined, those speculative concerns do not outweigh Plaintiffs’ fundamental right to marry or the irreparable harm they are suffering.
Public Interest. 29. The public interest factor also weighs in favor of Plaintiffs. Remedying constitutional violations is in the public interest. See United States v. Raines, 362 U.S. 17, 27 (1960) (“[T]here is the highest public interest in the due observance of all the constitutional guarantees.”); G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir.1994) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”).
*12 30. Of course, as Defendants argue, it is also in the public interest to ensure that prisons are operated safely, but there is no evidence that allowing Plaintiffs to marry their fiancés threatens the safety of the Saguaro Correctional Center or the public.
Whether an Injunction May Issue. 31. The evidence does not support Defendants’ argument that, even if the requested injunction is granted, Plaintiffs will not be able to marry their fiancés because employees in Pinal County, Arizona, are not presently traveling to prisons to issue marriage licenses. The Pinal County Clerk’s Office has informed Plaintiffs’ counsel that a county employee need not go to the prison for an inmate to be married. Decl. of Laurie A. Temple ¶ 6, ECF No. 37–1. An inmate’s fiancée may pick up a marriage license and an affidavit from the clerk’s office and take the documents to the prison, where they can be signed in front of a notary. Id. The inmate’s fiancée would then return the signed documents to the clerk’s office. Id.
IV. CONCLUSION. Plaintiffs’ motion seeking a preliminary injunction is granted. Defendants are ordered to allow Plaintiffs to marry their fiancés without further interference. Plaintiffs and their fiancés need not reapply for permission to marry from DPS.
Plaintiffs need not post a bond under Rule 65(c) of the Federal Rules of Civil Procedure. Defendants have not opposed Plaintiffs’ request that no bond be required, and this case involves a matter of public interest. See Save our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th
8

Cir.2004) (recognizing that it may be appropriate in public interest litigation not to require a bond or to require only a nominal bond); Barahona–Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.1999) (holding that district courts have discretion to waive the bond requirement under Rule 65(c)).

IT IS SO ORDERED.
	  

Footnotes

1

The Amended Complaint also listed Lenora Santos as a Plaintiff, but Santos voluntarily withdrew her claims. ECF No. 41.

2

In an effort to rule promptly on the merits and to avoid the burden on the court’s over-extended court reporters, the court did not

request and therefore does not have final transcripts of the live testimony. Therefore, in referring to that testimony in these findings

of fact, this court is unable to give exact page and line citations to the testimony.

	   	  

9

 
 Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 1 of 14 PageID #: 815

LOIS K. PERRIN

8065

DANIEL M. GLUCK

7959

ACLU OF HAWAII FOUNDATION

P.O. Box 3410

Honolulu, Hawaii 96801

Telephone: (808) 522-5908

Facsimile: (808) 522-5909

E-mail: dgluck@acluhawaii.org

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

JUNELL FAITH ALIVIADO and JAMIQUIA GLASS,
Plaintiffs,
vs.
SHARI KIMOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; JEANETTE BALTERO, Contract Monitor, Department of Public Safety, State of Hawaii, in her individual and official capacities; TED SAKAI,1 Interim Director, Department of Public Safety, State of Hawaii, in his official capacity; and DOES 1-30,

CIV. NO. 12-00259 SOM/BMK
[CIVIL RIGHTS ACTION]
STIPULATION FOR DISMISSAL WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(ii) AND 41(a)(2) AND [PROPOSED] ORDER

Defendants.

1

1 As the Director of the Department of Public Safety was named in her official capacity, the current Interim Director’s name has been substituted for the original name (Jodie Maesaka-Hirata).

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 2 of 14 PageID #: 816
IT IS HEREBY STIPULATED AND AGREED by and between the parties to this action, through their respective attorneys, that pursuant to Rule 41(a)(1)(A)(ii) and 41(a)(2) of the Federal Rules of Civil Procedure, this action and all claims asserted herein by Plaintiffs against any and all Defendants, be and is hereby dismissed with prejudice, each party to bear any remaining costs and attorneys’ fees other than the amounts to be paid pursuant to the Settlement Agreement, Release and Indemnity Agreement (“Settlement Agreement”).
The parties stipulate to dismiss this action with prejudice upon the Court’s approval of this stipulation and order expressly incorporating herein the terms of the executed Settlement Agreement as follows:
2

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 3 of 14 PageID #: 817
SETTLEMENT AGREEMENT, RELEASE AND INDEMNITY AGREEMENT
This Settlement Agreement (hereinafter, “Agreement”) is by and between Plaintiffs JAMIQUA TRASHELLE PETTWAY (also known as JAMIQUIA GLASS) and JUNELL FAITH ALIVIADO (hereinafter collectively, “Releasors”), their heirs, representatives, successors, and assigns, and Defendants SHARI KIMOTO, JEANETTE BALTERO and TED SAKAI (hereinafter collectively, “Releasees”), in connection with the case entitled Junell Faith Aliviado and Jamiquia Glass v. Shari Kimoto, Jeanette Baltero, and Ted Sakai, Civil No. CV 12-00259 SOM-BMK (hereinafter, “Lawsuit”).
WHEREAS, Releasors, through their attorneys, filed an Amended Complaint in the above-referenced Lawsuit on May 29, 2012 in the United States District Court for the District of Hawaii;
WHEREAS Releasors sought and obtained a preliminary injunction order on August 2, 2012, which allowed each to marry to her fiancé; and
WHEREAS, each and every cause of action alleged in said Lawsuit has been denied by Releasees; and
WHEREAS, as of the Effective Date of this Agreement, Releasors may have other potential causes of action against the Releasees and/or one or more of their
3

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 4 of 14 PageID #: 818
officers, agents, employees, or representatives which may or may not have been initiated or asserted to date, arising out of or related to the alleged injuries and damages claimed to have been suffered by Releasors in the Lawsuit; and
WHEREAS, in order to avoid the further expense and risk of litigation, the Releasors and Releasees (hereinafter collectively referred to as “Undersigned Parties”) now desire, upon the terms set forth herein, to release, settle, terminate, dismiss, and discharge any and all claims, demands, actions, whether known or unknown and whether previously asserted or not asserted, which Releasors claim to have against Releasees or any of Releasees’ successors, present or former employees, officers, agents, representatives, or assigns, relating to any conduct, act or omission by Releasees or any of Releasees’ successors, present or former employees, officers, agents, representatives, or assigns arising out of or connected to the facts and circumstances surrounding the Lawsuit as of the Effective Date; and
WHEREAS, this Agreement shall not be construed as an admission by the Releasees or any of Releasees’ successors, present or former employees, officers, agents, representatives, or assigns of any fault, wrongdoing, or liability whatsoever, and is entered into solely as a compromise and to avoid further costs and expenses;
4

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 5 of 14 PageID #: 819
NOW, THEREFORE, in consideration for the mutual covenants and conditions contained herein, Releasors and Releasees hereby agree as follows:
1. Defendants shall pay the sum of EIGHTY-SIX THOUSAND EIGHT HUNDRED SEVENTY-ONE AND 21/100 DOLLARS ($86,871.21) via one check payable to “ACLU of Hawaii Foundation Clients’ Trust Account” to be distributed as follows: TWENTY-FIVE THOUSAND DOLLARS AND NO/100 for Plaintiff JUNELL FAITH ALIVIADO; TWENTY-FIVE THOUSAND DOLLARS AND NO/100 for Plaintiff JAMIQUA PETTWAY; THIRTY-FIVE THOUSAND DOLLARS AND NO/100 ($35,000) to be paid as attorneys’ fees to the American Civil Liberties Union of Hawaii Foundation (a tax exempt organization) (“ACLU”); and ONE THOUSAND EIGHT HUNDRED SEVENTY ONE AND 21/100 in costs to the ACLU. With respect to the above-listed sums to be paid to the ACLU, the Releasors and their attorneys have represented, and for purposes of this Agreement, Defendants do not dispute, constitute statutory attorneys’ fees and costs under 42 U.S.C. Sections 1983 and 1988. This allocation or characterization of the fees and costs shall have no bearing on any future request for fees and costs in the event of further action(s) relating to substantial compliance of this
5

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 6 of 14 PageID #: 820
Agreement. In addition, each of the Releasors understands and affirms that neither Defendants nor Plaintiffs’ counsel makes any representation regarding any potential tax consequences that may arise from the monetary payments to each of the Releasors or to the ACLU, and each of the Releasors further understands and agrees that she shall be responsible for payment of any and all taxes which may be assessed as a result of the payment of the aforementioned consideration. With regard to the sums set forth above, the State of Hawaii will issue an IRS Form 1099 to the ACLU, if that is consistent with the standard practice of the State. Plaintiffs’ counsel has represented that these fees and costs are paid pursuant to statutory authority, thus no IRS Form 1099 shall be issued by any of the Defendants or the State of Hawaii to either of the Plaintiffs for these fees and/or costs. Counsel for the parties disagree as to the scope and applicability of Commissioner of Internal Revenue v. Banks, 543 U.S. 426 (2005) and cases interpreting Banks. Counsel for the Defendants express no opinion as to the tax consequences of the terms of this settlement agreement. 2. Defendant Ted Sakai or his successor(s) shall, within thirty (30) days of the Effective Date of this Agreement, issue an internal memorandum to
6

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 7 of 14 PageID #: 821
all personnel in the Corrections Division of the Department of Public Safety (“PSD”) indicating that an inmate’s application for permission to marry should presumptively be approved unless: (a) there is a legal restriction to the marriage; or (b) the proposed marriage presents a threat to the security or the good government of the institution or to the protection of the public. A copy of this internal memorandum shall be provided to Plaintiffs’ counsel. 3. Whenever a prisoner requests an application packet (that is, any form(s) that PSD provides to prisoners who wish to get married while incarcerated), PSD shall include a copy of its current marriage policy with those application materials. 4. In consideration for the foregoing, Releasors do hereby release and forever acquit and discharge the said Releasees, their departments, successors, present and former employees, officers, agents, and assigns from and on account of any and all claims, actions, causes of action, demands, liability, damages or expenses of any kind and nature, whether known or unknown, which may now exist or which may in any manner arise or grow out of any act, omission, event, or circumstances alleged in or related to Releasors as set forth in the Lawsuit.
7

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 8 of 14 PageID #: 822
5. IT IS UNDERSTOOD AND AGREED that at the time this Agreement is fully and finally executed, the parties to the Lawsuit will execute and lodge a Stipulation of Dismissal With Prejudice and Order, pursuant to Federal Rule of Civil Procedure, Rule 41(a)(1)(ii), which will set forth this Agreement verbatim so that the Court shall retain jurisdiction for purposes of any enforcement action arising from non-compliance with this Settlement Agreement. Except as set forth above, all parties will bear their own costs and attorney’s fees.
6. IT IS UNDERSTOOD AND AGREED that this release is conditioned on the actual receipt of funds to be appropriated by the Legislature of the State of Hawaii during the 2013 Regular Legislative Session, and that those funds shall be paid to the Releasors or their representatives within a reasonable time after such appropriation.
7. IT IS FURTHER UNDERSTOOD AND AGREED that this agreement is conditioned upon approval by Governor Neil Abercrombie of its terms and conditions.
8. IT IS UNDERSTOOD AND AGREED that in consideration for the aforementioned payment and actions by Defendants, Releasors intend and hereby release Releasees of and from any and all claims that
8

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 9 of 14 PageID #: 823
Releasors has against Releasees and for any and all items of damage, whether special, general, or economic, related to the Lawsuit. 9. IT IS UNDERSTOOD AND AGREED that this payment is not an admission by Releasees of liability, negligence, breach of duty, misconduct, violation of statute, fault, and/or wrongdoing of any kind, character or nature whatsoever on the part of Releasees or their departments, present and former employees, officers, or agents with respect to any of the allegations raised, contained in or in any manner relating to the aforementioned civil action and/or the incident, but compromise and settle all actual and potential disputes between Releasors and Releasees for the purpose of avoiding further controversy, litigation and expense, and that the aforementioned payment and actions by Defendants are the final consideration for this release and agreement, and no other payment or consideration has been promised or will be paid. 10. IT IS FURTHER ACKNOWLEDGED AND AGREED that the Undersigned Parties rely solely upon the contents of this Agreement and upon nothing else with respect to all matters referred to in this Agreement. Releasors admit that neither Releasees nor anyone on Releasees’ behalf have made any promises, representations, understanding, warranties, or
9

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 10 of 14 PageID #: 824
agreements to do or omit to do any act or thing not herein mentioned, that no representation of fact or opinion has been made other than as expressed herein to induce this Agreement, that this Agreement is made by Releasors with full knowledge of the facts and possibilities of the case and with advice of counsel. 11. Releasors specifically agree that they intend and hereto do release said Releasees and/or Releasees’ successors, present and former employees, officers, agents, representatives, attorneys, and assigns of and from any and all claims that they may have against said Releasees and Releasees’ successors, present and former employees, officers, agents, representatives, and assigns for any and all items of damage, whether general, special, contractual, or punitive constituting, relating to and/or arising out of claims that were brought or could have been brought in this Lawsuit. 12. Releasors acknowledge that they have read the terms of this Release, that its provisions are fully understood, that it has been approved by their counsel and that the same has been duly signed by Releasors as their own free act and deed.
10

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 11 of 14 PageID #: 825
13. This Agreement shall be construed and the rights of the parties determined in accordance with the laws of the State of Hawaii.
14. If any term, provision or covenant of this Release is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining terms, provisions, and covenants of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
15. IT IS UNDERSTOOD AND AGREED that the Effective Date of this Agreement is the last date upon which a party to the Lawsuit executes said Agreement (“Effective Date”).
16. RELEASORS HEREBY STIPULATE AND AGREE, for the foregoing consideration, for their heirs and assigns, to indemnify, defend, and forever hold harmless Releasees against loss and/or liability from any and all claims, liens, judgments, costs, expenses, attorney’s fees, demands or actions, claims or actions for contribution, indemnity and reimbursement (contractual or otherwise), cross-claims and third-party claims, whether such claims or actions have merit or not, that may have or hereafter at any time may be brought against Releasees by said Releasors or by anyone acting on Releasors’ behalf, or holding by or through them, or
11

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 12 of 14 PageID #: 826
any third party, for damages on account of the loss or damages sustained or which may be sustained in consequence of the matters covered by this Agreement. 17. RELEASORS REPRESENT THAT they have been fully advised as to their rights and the effects of this Release, that this Agreement contains the entire agreement between Releasors and Releasees with regard to the matters set forth herein. This Agreement shall be binding upon and inure to the representatives, heirs, successors, and assigns of Releasors and Releasees. 18. RELEASORS AND RELEASEES AGREE to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. 19. RELEASORS AND RELEASEES AGREE to accept facsimile signatures as if they were original signatures. 20. RELEASORS AND RELEASEES AGREE that this Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.
12

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 13 of 14 PageID #: 827

This stipulation is signed by counsel for all parties in this action. This

Court will retain jurisdiction for the purpose of enforcing the Settlement

Agreement.

Dated:

By: /s/ John F. Molay John F. Molay

David Louie Attorney General John F. Molay Caron M. Inagaki Deputy Attorneys General Attorneys for Defendants SHARI KIMOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; JEANETTE BALTERO, Contract Monitor, Department of Public Safety, State of Hawaii, in her individual and official capacities; TED SAKAI, Interim Director, Department of Public Safety, State of Hawaii, in his official capacity; and DOES 1-30

Dated:

By: /s/ Daniel M. Gluck Daniel M. Gluck

Lois K. Perrin Daniel M. Gluck Laurie A. Temple ACLU of Hawaii Foundation

Attorneys for Plaintiffs

13

Case 1:12-cv-00259-SOM-BMK Document 79 Filed 05/29/13 Page 14 of 14 PageID #: 828
APPROVED AND SO ORDERED: DATED: Honolulu, HI; May 28, 2013.
/s/ Susan Oki Mollway Susan Oki Mollway Chief United States District Judge
Aliviado, et al. v. Kimoto, et al., USDC 12-00259 SOM/BMK; STIPULATION FOR DISMISSAL WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 41(a)(i)(A)(2) AND 41(a)(2) AND ORDER
14

 
 Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 1 of 11

U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:12−cv−00259−SOM−BMK

CLOSED

Aliviado; et al. v. Kimoto et al Assigned to: JUDGE SUSAN OKI MOLLWAY Referred to: Judge BARRY M. KURREN Cause: 28:1983 Civil Rights
Plaintiff
Lenora Santos TERMINATED: 07/05/2012

Date Filed: 05/15/2012 Date Terminated: 05/29/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Daniel M. Gluck American Civil Liberties Union Hawaii P O Box 3410 Honolulu, HI 96801 522−5908 Fax: 522−5909 Email: dgluck@acluhawaii.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie Ann Temple American Civil Liberties Union of Hawaii P.O. Box 3410 Honolulu, HI 96801 522−5900 Email: lt@acluhawaii.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois K. Perrin American Civil Liberties Union of Hawaii P O Box 3410 Honolulu, HI 96801 522−5907 Email: lperrin@acluhawaii.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Junell Faith Aliviado

represented by Daniel M. Gluck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John F. Molay Office of the Attorney General−State of Hawaii Civil Rights Litigation 425 Queen Street Honolulu, HI 96813 586−1494 Fax: 587−3077 Email: john.f.molay@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie Ann Temple (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 2 of 11

Lois K. Perrin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jamiquia Glass

represented by Daniel M. Gluck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie Ann Temple (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois K. Perrin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Margaret Amina TERMINATED: 05/29/2012

represented by Daniel M. Gluck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie Ann Temple (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois K. Perrin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Shari Kimoto Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities
Defendant
Jeanette Baltero Contract Monitor, Department of Public Safety, State of Hawaii, in her individual and official capacities
Defendant
Jodie Maesaka−Hirata Director, Department of Public Safety, State of Hawaii, in her official capacity TERMINATED: 08/31/2012
Defendant
Does 1−30

represented by John F. Molay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John F. Molay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John F. Molay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 3 of 11
Defendant Ted Sakai Director, Department of Public Safety, State of Hawaii, in his official capacity

Date Filed 05/15/2012 05/15/2012 05/15/2012 05/15/2012
05/17/2012 05/18/2012 05/18/2012
05/21/2012 05/29/2012 05/29/2012

# Docket Text
1 COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF; Summons (issued) in a Civil Case against Shari Kimoto, Jeanette Baltero, Jodie Maesaka−Hirata Does 1−30 − filed by Lenora Santos, Junell Faith Aliviado, Jamiquia Glass, Margaret Amina. (Attachments: # 1 Civil Cover Sheet)(emt, ) (Entered: 05/15/2012)
2 Order Setting Rule 16 Scheduling Conference for 09:00AM on 8/13/2012 before Judge BARRY M. KURREN − Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/15/12. (Attachments: # 1 Memo from Clerk: Corporate Disclosure Statements)(emt, ) (Entered: 05/15/2012)
3 Filing fee: $ 350, receipt number HI003764 re 1 Complaint. (emt, ) (Entered: 05/15/2012)
4 MOTION for Preliminary Injunction − Laurie Ann Temple, Daniel M. Gluck, Lois K. Perrin appearing for Plaintiffs Junell Faith Aliviado, Margaret Amina, Jamiquia Glass, Lenora Santos (Attachments: # 1 Memorandum in Support of Motion, # 2 Declaration of Lenora Santos, # 3 Exhibit 1, # 4 Declaration of Junell Faith Aliviado, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Declaration of Jamiquia Glass, # 8 Exhibit 1, # 9 Exhibit 2, # 10 Exhibit 3, # 11 Exhibit 4, # 12 Exhibit 5, # 13 Declaration of Margaret Amina, # 14 Declaration of Daniel M. Gluck, # 15 Exhibit 1, # 16 Exhibit 2, # 17 Exhibit 3, # 18 Exhibit 4, # 19 Exhibit 5, # 20 Exhibit 6, # 21 Certification of Word Count Pursuant to Local Rule 7.5(e))(emt, ) (Entered: 05/15/2012)
5 NOTICE of Appearance by John F. Molay on behalf of Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata on behalf of Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 05/17/2012)
6 SUMMONS Returned Executed by Jamiquia Glass, Lenora Santos, Margaret Amina, Junell Faith Aliviado. All Defendants, Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata served on 5/16/2012; answer due 6/6/2012 . (Gluck, Daniel) Modified on 5/21/2012 (emt, ). (Entered: 05/18/2012)
7 NOTICE of Hearing on Motion 4 MOTION for Preliminary Injunction :. Motion Hearing set for 6/20/2012 01:30 PM before JUDGE SUSAN OKI MOLLWAY. (tbf, )
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: 05/18/2012)
8 Letter to Counsel, dated May 18, 2012 −− re Realtime Court Reporting Services for hearing on Motion for Preliminary Injunction set for 6/20/12 at 1:30 pm. (emt, ) (Entered: 05/21/2012)
9 AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF against All Defendants, filed by Jamiquia Glass, Lenora Santos, Junell Faith Aliviado. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) Modified on 5/30/2012 (emt, ). (Entered: 05/29/2012)
10 Amended MOTION for Preliminary Injunction Daniel M. Gluck appearing for Plaintiffs Junell Faith Aliviado, Jamiquia Glass, Lenora Santos (Attachments: # 1 Memorandum, # 2 Declaration Lenora Santos, # 3 Exhibit 1 to Santos Decl., # 4 Declaration Junell Aliviado, # 5 Exhibit 1 to Aliviado Decl., # 6 Exhibit 2 to Aliviado Decl., # 7 Declaration Jamiquia Glass, # 8 Exhibit 1 to Glass Decl., # 9

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 4 of 11

05/29/2012 05/31/2012
05/31/2012 06/01/2012
06/04/2012 06/04/2012 06/04/2012 06/04/2012 06/04/2012 06/04/2012 06/12/2012 06/12/2012 06/12/2012

Exhibit 2 to Glass Decl., # 10 Exhibit 3 to Glass Decl., # 11 Exhibit 4 to Glass Decl., # 12 Exhibit 5 to Glass Decl., # 13 Declaration Daniel Gluck, # 14 Exhibit 1 to Gluck Decl., # 15 Exhibit 2 to Gluck Decl., # 16 Exhibit 3 to Gluck Decl., # 17 Exhibit 4 to Gluck Decl., # 18 Exhibit 5 to Gluck Decl., # 19 Exhibit 6 to Gluck Decl., # 20 Certificate of Service)(Gluck, Daniel) (Entered: 05/29/2012)
11 NOTICE of Dismissal of Plaintiff Margaret Amina. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 05/29/2012)
12 NOTICE of Hearing on Motion 10 Amended MOTION for Preliminary Injunction :. Motion Hearing set for 7/12/2012 01:30 PM before JUDGE SUSAN OKI MOLLWAY. (tbf, )
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)
13 Letter Re Realtime Court Reporting Services as to the Amended Motion for Preliminary Injunction set for 7/12/2012 at 1:30 pm. (emt, ) (Entered: 05/31/2012)
14 WITHDRAWAL WITHOUT PREJUDICE OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION FILED MAY 15, 2012 re 4 MOTION for Preliminary Injunction by Jamiquia Glass, Lenora Santos, Junell Faith Aliviado (Attachments: # 1 Certificate of Service)(Gluck, Daniel) Modified on 6/4/2012 (emt, ). (Entered: 06/01/2012)
15 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Request for Admissions from Jeanette Baltero (Gluck, Daniel) (Entered: 06/04/2012)
16 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Request for Production of Documents from Jeanette Baltero (Gluck, Daniel) (Entered: 06/04/2012)
17 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Request for Admissions from Shari Kimoto (Gluck, Daniel) (Entered: 06/04/2012)
18 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Request for Production of Documents from Shari Kimoto (Gluck, Daniel) (Entered: 06/04/2012)
19 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Request for Admissions from Jodie Maesaka−Hirata (Gluck, Daniel) (Entered: 06/04/2012)
20 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Request for Production of Documents from Jodie Maesaka−Hirata (Gluck, Daniel) (Entered: 06/04/2012)
21 MOTION to Dismiss for Lack of Subject Matter Jurisdiction John F. Molay appearing for Defendants Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata (Attachments: # 1 Memorandum in Support, # 2 Declaration of Shari Kimoto, # 3 Certificate of Service)(Molay, John) (Entered: 06/12/2012)
22 MOTION to Dismiss for Inability to Join Required Party John F. Molay appearing for Defendants Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata (Attachments: # 1 Memorandum in Support, # 2 Declaration of Shari Kimoto, # 3 Exhibit A, # 4 Certificate of Service)(Molay, John) (Entered: 06/12/2012)
23 MOTION to Shorten Time to hear Motion re 21 MOTION to Dismiss for Lack of Subject Matter Jurisdiction, 22 MOTION to Dismiss for Inability to Join Required Party John F. Molay appearing for Defendants Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata (Attachments: # 1 Declaration of John F. Molay, # 2 Certificate of Service)(Molay, John) (Entered: 06/12/2012)

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 5 of 11

06/13/2012 06/14/2012

24 STATEMENT of No Opposition re 23 MOTION to Shorten Time to hear Motion re 21 MOTION to Dismiss for Lack of Subject Matter Jurisdiction, 22 MOTION to Dismiss for Inability to Join Required Party MOTION to Shorten Time to hear Motion re 21 MOTION to Dismiss for Lack of Subject Matter Jurisdiction, 22 MOTION to Dismiss for Inability to Join Required Party filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 06/13/2012)
25 NOTICE of Hearing:.A Telephone Conference set for 6/14/2012 11:15 AM before JUDGE SUSAN OKI MOLLWAY. Parties notified.(tbf, )

06/14/2012
06/15/2012 06/18/2012

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: 06/14/2012)
26 EP: Telephone Conference − held in chambers.Discussion held re: defendants motions to dismiss 21 22 and the motion to shorten time to hearing defendants motions to dismiss 23 that were filed.Mr. Molay to research whether or not the motion to dismiss for lack of subject matter jurisdiction falls under rule 12(b)(1) or 12(b)(6).Parties to meet and discuss this issue.The Motion to Shorten Time to Hear Defendants Motions to Dismiss 23 − Granted.Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction 21 and Defendants Motion to Dismiss for Inability to Join Required Party 22 are set for 7/12/12 @ 1:30 p.m.Plaintiffs to file an opposition by 6/25/12.Defendants to file a reply by 6/28/12.If there is any change to the schedule, parties to send a letter to the Court.Mr. Molay to notify the Court asap if he intends to file a withdrawal of motion.granting 23 Motion to Shorten time to hear Motion; Telephone Conference held on 6/14/2012. (Court Reporter Debra Chun.) (JUDGE SUSAN OKI MOLLWAY)(tbf, )No COS issued for this docket entry (Entered: 06/14/2012)
27 NOTICE by Jeanette Baltero, Jodie Maesaka−Hirata, Shari Kimoto re 26 Order on Motion to Shorten time to hear Motion, Telephone Conference,,,,,,,, Regarding Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction Jeanette Baltero, Jodie Maesaka−Hirata, Shari Kimoto. (Molay, John) (Entered: 06/15/2012)
28 EO: At the request of the parties, Rule 16 Scheduling Conference set for 8/13/2012 is continued to 9/5/2012 @ 9:00 AM before Judge BARRY M. KURREN. Scheduling Conference Statements are due by 8/29/2012. (Judge BARRY M. KURREN)(tyk)

06/18/2012 06/18/2012
06/18/2012 06/18/2012 06/20/2012

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: 06/18/2012)
29 Scheduling Conference Statement. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 06/18/2012)
30 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Notice of Deposition Upon Oral Examination of Designated Representative of Department of Public Safety Pursuant to Fed. R. Civ. P. 30(b)(6), Exhibits "A" and "B" (Gluck, Daniel) (Entered: 06/18/2012)
31 CERTIFICATE OF SERVICE by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos Plaintiffs' Initial Disclosures (Gluck, Daniel) (Entered: 06/18/2012)
32 INITIAL DISCLOSURE by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 06/18/2012)
33 Return of Service on Subpoena Designated Representative of the State of Hawaii Department of Public Safety was served on 6/18/12 (Gluck, Daniel) (Entered: 06/20/2012)

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 6 of 11

06/21/2012
06/25/2012 06/25/2012 06/28/2012 06/28/2012 06/28/2012 07/02/2012 07/03/2012 07/05/2012 07/05/2012

34 MEMORANDUM in Opposition re 10 Amended MOTION for Preliminary Injunction filed by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Declaration of Shari Kimoto, # 2 Declaration of John F. Molay, # 3 Exhibit A, # 4 Exhibit B, # 5 Certificate of Service)(Molay, John) (Entered: 06/21/2012)
35 MEMORANDUM in Opposition re 21 MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 06/25/2012)
36 MEMORANDUM in Opposition re 22 MOTION to Dismiss for Inability to Join Required Party filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 06/25/2012)
37 REPLY MEMORANDUM in Support of 10 Amended MOTION for Preliminary Injunction filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos. (Attachments: # 1 Declaration of Laurie A. Temple, # 2 Certificate of Service)(Gluck, Daniel) Modified on 6/29/2012 (emt, ). (Entered: 06/28/2012)
38 REPLY to Plaintiffs' Opposition to 21 Defendants' MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) Modified on 6/29/2012 (emt, ). (Entered: 06/28/2012)
39 REPLY to Plaintiffs' Opposition to 22 Defendants' MOTION to Dismiss for Inability to Join Required Party filed by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) Modified on 6/29/2012 (emt, ). (Entered: 06/28/2012)
40 RESPONSE to Request for Letter Briefs filed by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Molay, John) (Entered: 07/02/2012)
ADVISORY ENTRY. The entry docket number 40 Letter Brief Re: Objections to Discovery
filed by Jodie Maesaka−Hirata, Jeanette Baltero, Shari Kimoto was filed incorrectly in this case. Please be advised that letters should not be filed in CM/ECF, rather, they should be delivered to the
respective judge's chambers. No further action necessary. (emt, ) (Entered: 07/03/2012)
41 STIPULATION to Dismiss Plaintiff Lenora Santos Without Prejudice by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 07/05/2012)
42 EP: Telephonic Discovery Conference held.The Court rules as follows:(1) As to prisoners' files, Defendants are required to disclose information that would otherwise be discoverable, notwithstanding any law protecting the privacy of those prisoner records to the contrary; and(2) Plaintiff's request relating to marriage applications of other prisoners and their fiancees is denied without prejudice to further consideration pursuant to a motion to compel or for protective order. (Chambers no record 1:48−2:06pm.) (Judge BARRY M. KURREN)(kur2)

07/06/2012 07/06/2012 07/09/2012

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: 07/05/2012)
ADVISORY ENTRY. If the filing party has not already done so, the 41 Stipulation of
Dismissal of Plaintiff Lenora Santos Pursuant to Fed.R.Civ.P.41(a) filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos may be submitted to Chief Judge Susan Oki Mollway for approval. The filing party may refer to LR100.9.1. Proposed Orders, LR100.9.2. E−mailing of Proposed Orders and Stipulations and LR100.9.3. E−mail addresses for order and stipulation submission to
Chambers. (emt, ) (Entered: 07/06/2012)
45 Transmittal Memorandum from Daniel M. Gluck, Esq. −− re payment for Pro Hac Vice applications of Stanford J. Rosen, Esq., Ernest Galvan, Esq. and Kenneth M. Walczak, Esq., dated July 5, 2012. (emt, ) (Additional attachment(s) added on 7/6/2012: # 1 Main Document) (emt, ). Modified on 7/6/2012 −− image removed; entered in CV 12−00340 SOM−KSC. (emt, ). (Entered: 07/06/2012)
46 Proposed Findings of Fact. filed by Junell Faith Aliviado, Jamiquia Glass. (Attachments: # 1 Second Declaration of Daniel M. Gluck, # 2 Exhibit 1 to Second

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 7 of 11

07/09/2012 07/10/2012 07/10/2012 07/10/2012
07/10/2012 07/10/2012 07/10/2012 07/10/2012
07/10/2012
07/10/2012
07/11/2012 07/12/2012 07/12/2012

Declaration of Daniel M. Gluck, # 3 Exhibit 2 to Second Declaration of Daniel M. Gluck, # 4 Exhibit 3 to Second Declaration of Daniel M. Gluck, # 5 Certificate of Service)(Gluck, Daniel) (Entered: 07/09/2012)
47 Proposed Findings of Fact. filed by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 07/09/2012)
48 STIPULATION re 10 Amended MOTION for Preliminary Injunction Stipulation of Facts and Exhibits for Hearing on Plaintiffs' Amended Motion for Preliminary Injunction by Junell Faith Aliviado, Jamiquia Glass. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 07/10/2012)
49 RESPONSE to Plaintiffs' Deposition Designations [dkt no. 46 ] − filed by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) Modified on 7/11/2012 (emt, ). (Entered: 07/10/2012)
50 Plaintiffs' Testimony for Hearing on Motion for Preliminary Injunction (Direct Testimony by Declaration/Deposition Excerpt of Junell Faith Aliviado, Jamiquia Glass, and Shari Kimoto in Advance of Hearing on Motion) re 10 Amended MOTION for Preliminary Injunction filed by Junell Faith Aliviado and Jamiquia Glass (Attachments: # 1 Certificate of Service)(Gluck, Daniel) Modified on 7/11/2012 (emt, ). (Entered: 07/10/2012)
51 CERTIFICATE OF SERVICE by Shari Kimoto Certificate of Service Re: Defendant Shari Kimoto's Response to Plaintiffs' First Request For Admissions from Shari Kimoto (Molay, John) (Entered: 07/10/2012)
52 CERTIFICATE OF SERVICE by Jeanette Baltero Certificate of Service Re: Defendant Jeanette Baltero's Response to Plaintiffs' First Request for Admissions from Jeanette Baltero (Molay, John) (Entered: 07/10/2012)
53 CERTIFICATE OF SERVICE by Jodie Maesaka−Hirata Certificate of Service Re: Defendant Jodie Maesaka−Hirata's Response to Plaintiffs' First Request for Admissions from Jodie Maesaka−Hirata (Molay, John) (Entered: 07/10/2012)
54 CERTIFICATE OF SERVICE by Shari Kimoto Certificate of Service Re: Defendants Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata's Response to Plaintiffs' First Request for Productiion of Documents to Defendants Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata (Molay, John) (Entered: 07/10/2012)
55 CERTIFICATE OF SERVICE by Shari Kimoto Certificate of Service Re: Defendants Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata's Supplemental Response to Plaintiffs' First Request for Production of Documents to Defendants Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata (Molay, John) (Entered: 07/10/2012)
56 CERTIFICATE OF SERVICE by Shari Kimoto Certificate of Service Re: Defendants Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata's Second Supplemental Response to Plaintiffs' First Requst for Production of Documents to Defendants Shari Kimoto, Jeanette Baltero and Jodie Maesaka−Hirata (Molay, John) (Entered: 07/10/2012)
57 Defendants' NOTICE of Submission of Testimony by Jeanette Baltero, Jodie Maesaka−Hirata, Shari Kimoto . (Attachments: # 1 Certificate of Service)(Molay, John) Modified on 7/12/2012 (emt, ). (Entered: 07/11/2012)
58 Letter addressed to Courtroom Managers Toni Fujinaga and Leslie Sai from Daniel Gluck, Esq., dated July 5, 2012 −− re "Attorney, Witness, and Exhibit List for Hearing on Plaintiffs' Motion for Preliminary Injunction, July 12, 2012 at 1:30 p.m.". (emt, ) (Entered: 07/12/2012)
59 EP: : Amended Motion for Preliminary Injunction 10 (Evidentiary hearing); Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction 21 and Defendants Motion to Dismiss for Inability to Join Required Party 22 −Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction 21 and Defendants Motion to Dismiss for Inability to Join Required Party 22 − Arguments.Defendants

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 8 of 11

07/12/2012 07/19/2012
07/27/2012 07/30/2012 08/02/2012
08/02/2012

Motion to Dismiss for Lack of Subject Matter Jurisdiction 21 − Denied. Court to prepare an order.Defendants Motion to Dismiss for Inability to Join Required Party 22 − taken under advisement. Court to prepare an order.Amended Motion for Preliminary Injunction 10 −Declaration of Junell Faith Aliviado − no objection by the defendant. Court receives the declaration in lieu of direct testimony. No cross examination.Declaration of Jamiquia Glass − no objection by the defendant. Court receives the declaration in lieu of direct testimony. No cross examination.Excerpts of deposition of Shari Kimoto − objections − arguments − overruled.Court receives the excerpts of deposition of Shari Kimoto as her direct testimony.Stipulated Facts − plaintiff orally amends the stipulated facts − no objection by the defendant − received by the Court.Declaration of Lori Temple − no objection by the defendant. Court receives the declaration in lieu of direct testimony. No cross examination.Declaration of Shari Kimoto − no objection by the plaintiff. Court receives the declaration in lieu of direct testimony.Discussion held re: objections to exhibits to the stipulated facts (1 − 14) − overruled and received by the Court.Re: excerpts of deposition of Shari Kimoto −Shari Kimoto CST for cross examination and re direct examination.Arguments.Amended Motion for Preliminary Injunction 10 − taken under advisement.Court to issue a written order. denying 21 Motion to Dismiss; Evidentiary Hearing held on 7/12/2012; Motion Hearing held on 7/12/2012 re 21 MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by Jodie Maesaka−Hirata, Jeanette Baltero, Shari Kimoto, 22 MOTION to Dismiss for Inability to Join Required Party filed by Jodie Maesaka−Hirata, Jeanette Baltero, Shari Kimoto, 10 Amended MOTION for Preliminary Injunction filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos ; Motions Taken Under Advisement: 22 MOTION to Dismiss for Inability to Join Required Party, 10 Amended MOTION for Preliminary Injunction. (Court Reporter Debra Chun.) (JUDGE SUSAN OKI MOLLWAY)(tbf, )No COS issued for this docket entry (Entered: 07/12/2012)
60 (RE HEARING ON: MOTION FOR PRELIMINARY INJUNCTION) EXHIBIT LIST − filed by Junell Faith Aliviado, Jamiquia Glass, Lenora Santos.(emt, ) (Entered: 07/13/2012)
61 ORDER (1) DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND (2) DENYING DEFENDANTS' MOTION TO DISMISS FOR INABILITY TO JOIN REQUIRED PARTIES re 21 ; 22 − − Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/19/12. (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: 07/19/2012)
62 ANSWER to 9 Amended Complaint, by Jeanette Baltero, Shari Kimoto, Jodie Maesaka−Hirata. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 07/27/2012)
63 Defendants Shari Kimoto and Jeannette Baltero's MOTION for Substitution of Parties John F. Molay appearing for Plaintiff Junell Faith Aliviado, Defendants Shari Kimoto, Jeanette Baltero (Attachments: # 1 Supplement Memorandum of Law, # 2 Certificate of Service)(Molay, John) Modified on 7/31/2012 (emt, ). (Entered: 07/30/2012)
64 ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION re 10 − Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/1/12. (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: 08/02/2012)
65 NOTICE of Hearing on 63 Defendants Shari Kimoto And Jeanette Baltero's Motion For Substitution Of Parties set for 9/5/2012 @ 09:00 AM before Judge BARRY M. KURREN. (tyk)

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 9 of 11

08/15/2012 08/28/2012 08/29/2012 08/29/2012 08/31/2012
09/04/2012 09/06/2012
09/18/2012

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: 08/02/2012)
66 STATEMENT of No Opposition to 63 Defendants Shari Kimoto and Jeanette Baltero's Motion for Substitution of Parties filed by Junell Faith Aliviado, Jamiquia Glass. (Attachments: # 1 Certificate of Service)(Temple, Laurie) Modified on 8/16/2012 (emt, ). (Entered: 08/15/2012)
67 Scheduling Conference Statement. (Attachments: # 1 Certificate of Service)(Gluck, Daniel) (Entered: 08/28/2012)
68 Scheduling Conference Statement. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 08/29/2012)
69 EO: The Hearing re 63 Motion to Substitute Party and the Rule 16 Scheduling Conference set for 9/5/2012 are CONTINUED to 2:30 PM on the same day before Judge Barry M. Kurren. (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: 08/29/2012)
70 EO: "MINUTE ORDER" − Plaintiffs do not oppose 63 Defendants Shari Kimoto and Jeanette Baltero's Motion For Substitution Of Parties. Accordingly, 63 Defendants Shari Kimoto and Jeanette Baltero's Motion For Substitution Of Parties is GRANTED and Terminated. The hearing on the motion, set for 9/5/2012 before Judge BARRY M. KURREN, is VACATED. Jodie Maesaka−Hirata as a party defendant in this case in her official capacity as the Interim Director of the Department of Public Safety is hereby replaced by Ted Sakai. (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: 08/31/2012)
71 EO: Rule 16 Scheduling Conference set for 9/5/2012 is continued to 9/6/2012 @ 9:00 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: 09/04/2012)
72 EP: Rule 16 Scheduling Conference was held. New dates and deadlines are given below. Court to prepare scheduling order. Bench Trial set for 7/2/2013 09:00 AM before JUDGE SUSAN OKI MOLLWAY. Final Pretrial Conference set for 5/21/2013 09:30 AM before Judge BARRY M. KURREN. Settlement Conference set for 10/11/2012 02:00 PM before Judge BARRY M. KURREN. Motions due by 1/30/2013. Discovery due by 5/3/2013. (C7 no record 9:09−9:14 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: 09/06/2012)
73 RULE 16 SCHEDULING ORDER − Signed by Judge BARRY M. KURREN on 9/18/12. (emt, )
CERTIFICATE OF SERVICE

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 10 of 11

10/03/2012 11/15/2012 12/04/2012 12/05/2012 12/06/2012 05/20/2013 05/29/2013

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: 09/18/2012)
74 EO: At the request of the parties, Settlement Conference set for 10/11/2012 is continued 11/15/2012 @ 02:00 PM before Judge BARRY M. KURREN. Confidential Settlement Conference Statements are due by 11/8/2012. David M. Gluck to notify the parties. (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: 10/03/2012)
75 EP: Settlement Conference held. A Status Conference Re Settlement is set for 12/11/2012 at 9:00 a.m. before Judge Barry M. Kurren. (Chambers no record 2:00−2:20pm.) (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: 11/15/2012)
76 EO: The Further Settlement Conference set for 12/11/2012 is MOVED to 12/5/2012 at 10:00AM before Judge BARRY M. KURREN. Daniel Gluck to notify counsel. Defense counsel shall be present with someone who has settlement authority for this case. (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: 12/04/2012)
77 EP: Settlement Conference held on 12/5/2012. (In chambers; No Record; 10:00−10:20) (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: 12/05/2012)
78 EP: Telephonic Status Conference Re Terms of Settlement held with Plaintiff Jamiquia Glass. (Chambers no record 2:15−2:30pm.) (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: 12/06/2012)
EO: Case settled per John Molay. The Final Pretrial Conference Date of 5/21/2013 and Non Jury Trial Date of 7/2/2013 are vacated. Stipulation For Dismissal due by 5/24/2013. (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: 05/20/2013)
79 STIPULATION FOR DISMISSAL WITH PREJUDICE PURSUANT TO FED.R.CIV.P. 41(a)(1)(A)(ii) AND 41(a)(2) AND [PROPOSED] ORDER − Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/28/13. "IT IS HEREBY
STIPULATED AND AGREED by and between the parties to this action, through their respective attorneys, that pursuant to Rule 41(a)(1)(A)(ii) and 41(a)(2) of the Federal Rules of Civil Procedure, this action and all claims asserted herein by Plaintiffs against any and all Defendants, be and is hereby dismissed with prejudice, each party to bear any remaining costs and attorneys' fees other

Case: 1:12-cv-00259-SOM-BMK As of: 07/09/2013 08:20 AM HST 11 of 11

05/29/2013

than the amounts to be paid pursuant to the Settlement Agreement, Release and Indemnity
Agreement ("Settlement Agreement")." (emt, ) (Entered: 05/29/2013)
COURT'S CERTIFICATE of Service − a copy of 79 STIPULATION FOR DISMISSAL WITH PREJUDICE PURSUANT TO FED.R.CIV.P. 41(a)(1)(A)(ii) AND 41(a)(2) AND [PROPOSED] ORDER has been served on May 29, 2013. Registered Participants of CM/ECF received the document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). (emt, ) (Entered: 05/29/2013)

 
 	  
2012 WL 2974225 Only the Westlaw citation is currently available.
United States District Court, D. Hawai’i.
Junell Faith ALIVIADO and Jamiquia Glass, Plaintiffs, v.
Shari KIMOTO, Mainland Branch Coordinator, Department of Public Safety, State of Hawaii, in her individual and official capacities; Jeanette Baltero, Contract Monitor, Department of Public
Safety, State of Hawaii, in her individual and official capacities; Ted Sakai, Interim Director, Department of Public Safety, State of Hawaii, in his official capacity; and Does 1–30, Defendants.
Civil No. 12–00259 SOM–BMK. | July 19, 2012.
Attorneys and Law Firms
Daniel M. Gluck, Laurie Ann Temple, Lois K. Perrin, American Civil Liberties Union Hawaii, Honolulu, HI, for Plaintiffs.
John F. Molay, Office of the Attorney General–State of Hawaii, Honolulu, HI, for Defendants.
Opinion
ORDER (1) DENYING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION AND (2) DENYING DEFENDANTS’ MOTION TO DISMISS FOR INABILITY TO JOIN REQUIRED PARTIES
SUSAN OKI MOLLWAY, Chief Judge.
I. INTRODUCTION. *1 Plaintiffs Junell Faith Aliviado and Jamiqua Glass allege that Defendants Shari Kimoto, Jeanette Baltero, and Ted Sakai are allegedly interfering with their constitutional right to marry.1 Plaintiffs want to marry State of Hawaii prison inmates now housed, pursuant to a state contract, at the Saguaro Correctional Center in Arizona. The Department of Public Safety for the State of

Hawaii (“DPS”) requires prisoners to obtain approval to marry. Applications to marry submitted by Plaintiffs’ fiancés to marry Aliviado and Glass have been repeatedly denied by DPS. Plaintiffs seek damages from Defendants, who are DPS employees, and injunctive relief.
Now before this court are defense motions brought pursuant to Rules 12(b)(1) and 12(b)(7) of the Federal Rules of Civil Procedure. The Rule 12(b)(1) motion argues that Plaintiffs lack standing to assert their claims and that this court consequently lacks subject matter jurisdiction. Defendants contend that Plaintiffs are improperly asserting violations of their fiancés’ right to marry rather than their own right to marry. The Rule 12(b)(7) motion argues that Plaintiffs’ fiancés are required parties under Rule 19 of the Federal Rules of Civil Procedure who cannot be joined in this action because they have not exhausted their administrative remedies by filing grievances with DPS relating to the rejection of their applications for approval to marry. Because Plaintiffs are asserting their own rights to marry and because Plaintiffs’ fiancés are not required parties, the court denies Defendants’ motions.
II. LEGAL STANDARDS.
A. Rule 12(b)(1) Motion to Dismiss. Rule 12(b)(1) of the Federal Rules of Civil Procedure provides: “Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defense[ ] by motion: (1) lack of subject-matter jurisdiction.”
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may either attack the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or attack the existence of subject matter jurisdiction in fact. Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction—a facial challenge—all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed’n of African Am. Contractors v. Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). When the motion to dismiss is a factual attack on subject matter jurisdiction, no presumption of truth attaches to the plaintiff’s allegations,
1

and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Defendants say theirs is a factual challenge to jurisdiction.2
B. Rule 12(b)(7) Motion to Dismiss. *2 Rule 12(b)(7) of the Federal Rules of Civil Procedure provides that an action may be dismissed for failure to join a party under Rule 19 of the Federal Rules of Civil Procedure. To determine whether Rule 19 requires the joinder of additional parties, the court may consider evidence outside the pleadings. McShan v. Sherrill, 283 F.2d 462, 464 (9th Cir.1960); Walter v. Drayson, Civ. No. 06–00568 SOM/KSC, 2007 WL 641413, at *4 (D. Haw. Feb 26, 2007).
III. FACTUAL BACKGROUND. Defendants have allegedly prohibited Plaintiffs from marrying their fiancés. Plaintiffs are women who are engaged to male inmates held by the State of Hawaii at the Saguaro Correctional Facility in Arizona. Amended Compl. For Damages and Declaratory and Injunctive Relief ¶¶ 21–22, May 29, 2012, ECF No. 9.
Plaintiff Aliviado’s fiancé has submitted three applications to DPS to marry Aliviado. Id. ¶¶ 46–51. DPS denied all three applications. Id. One application was denied on the ground that DPS believed Aliviado’s fiancé’s incarceration made the fiancé “incapable of providing the necessary emotional, financial, and physical support that every marriage needs in order to succeed.” Id. ¶ 48. The most recent application was denied because Aliviado has a minor child, her fiancé had been convicted of sexually assaulting his own child, and DPS was apparently concerned about the safety of Aliviado’s minor child. Id. ¶ 51.
Plaintiff Glass’s fiancé has also submitted three applications to DPS to marry Glass. Id. ¶¶ 65–69. The first two applications were denied on the ground that Glass’s fiancé was “incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed.” Id. ¶ 65. The last application was denied on the ground that DPS does not want Glass’s fiancé associating with or being in the company of Glass because Glass herself is a convicted

felon. Id. ¶ 69. Glass concedes that she was convicted of three felonies in the 1990s but says she has “turned her life around” and has had no legal trouble since her release from prison in 2000. Id. ¶ 70. According to Defendants, neither Glass’s fiancé nor Aliviado’s fiancé has filed a grievance at the prison relating to the denials of their marriage applications.
Under DPS policy, an inmate’s marriage application may be denied when “the proposed marriage present[s] a threat to the security or the good government of the institution or to the protection of the public.” Id. ¶ 8.
IV. ANALYSIS.
A. Subject Matter Jurisdiction. A federal court does not have subject matter jurisdiction over a suit by a plaintiff who lacks standing. See White v. Lee, 227 F .3d 1214, 1242 (9th Cir.2000) (stating that standing pertains to a federal court’s subject matter jurisdiction). Under Article III, section 2, of the United States Constitution, to establish standing, a plaintiff must demonstrate (1) that he or she has suffered an “injury-infact,” (2) that the injury is fairly traceable to the challenged action, and (3) that a favorable decision is likely to redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
*3 Defendants do not challenge Plaintiffs’ constitutional standing. Defendants recognize that Plaintiffs have suffered an injury-in-fact in the form of being prevented from marrying their fiancés. See Defs.’ Mot. to Dismiss for Lack of Subject Matter Jurisdiction at 8, June 6, 2012, ECF No. 21–1. This injury is traceable to Defendants’ conduct; the sole reason that Plaintiffs are unable to marry their fiancés is that DPS has repeatedly denied their fiances’ marriage applications. A favorable decision from this court is likely to redress Plaintiffs’ injury. Plaintiffs seek, among other things, an order enjoining Defendants from depriving Plaintiffs of their right to marry their fiancés.
Defendants’ jurisdictional challenge rests on prudential considerations. “In addition to the immutable requirements of Article III, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” In re Thorpe Insulation Co., 677 F.3d 869, 887 (9th Cir.2012) (citations and quotation marks omitted). See also Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir.1987) (stating that
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standing involves both constitutional and prudential limitations (citing McMichael v. Napa, 709 F.2d 1268, 1269 (9th Cir.1983))).
In particular, Defendants rely on the prudential limit providing that a plaintiff “generally ‘may only bring a claim on his own behalf, and may not raise claims based on the rights of another party.’ “ Kaahumanu v. Hawaii, 682 F.3d 789, 797 (9th Cir.2012) (quoting Pony v. L.A., 433 F.3d 1138, 1146 (9th Cir.2006)). See also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[E]ven when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” (citations omitted)). Defendants contend that Plaintiffs are improperly asserting the rights of their fiancés, who are not parties to this action. According to Defendants, because it was Plaintiffs’ fiancés’ applications for marriage that DPS denied, any claim based on that denial must be brought by the incarcerated fiancés.
The court does not read the Amended Complaint as limited to asserting the incarcerated fiancés’ rights. Plaintiffs clearly allege that Defendants have denied Plaintiffs’ own right to marry their fiancés. The Amended Complaint alleges, for example, that Plaintiffs “challenge Defendants’ repeated interference with their fundamental right to marry,” Amended Compl. ¶ 1; that each Plaintiff has “been barred from marrying based on the fact that her fiancé is a prisoner,” id. ¶ 5; and that Plaintiffs are being injured by “the prohibition on exercising their fundamental right to marry,” id. ¶ 89. While Defendants’ allegedly unlawful conduct was directed at Plaintiffs’ fiancés, that in no way prevents Defendants’ actions from allegedly violating Plaintiffs’ own constitutional rights.
*4 Plaintiffs’ right to challenge the application of a prison regulation as violating their own right to marry is akin to the right recognized by the Supreme Court in Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). The Supreme Court held that prison regulations on written communications implicated the First Amendment rights of not only the inmates, but also of those who wanted to communicate with the inmates. Id. at 408–09. The Court said, “We do not deal here with difficult questions of ... third-party standing.... The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results

from censorship of her letter to him.” Id. at 409.
Of course, the Supreme Court has, in certain circumstances, allowed injured plaintiffs to bring claims even if their injuries arise out of someone else’s loss of a cognizable right. See, e.g., U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 720–21 (1990) (allowing an attorney who had allegedly collected illegal fees under the Black Lung Benefits Act to raise the Sixth Amendment right to legal representation that his clients, black lung claimants, had); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989) (permitting a law firm to challenge a drug forfeiture statute by asserting the Fifth and Sixth Amendment rights of an existing client when the forfeited assets were needed to pay attorneys’ fees); Craig v. Boren, 429 U.S. 190, 195 (1976) (allowing a vendor of alcoholic beverages to challenge a law setting different drinking ages for men and women on behalf of males who had allegedly been denied equal protection even though her own right to equal protection was not in issue); Barrows v. Jackson, 346 U.S. 249, 254–58 (1953) (relying on the rights of nonparty nonwhite purchasers and potential nonwhite purchasers in allowing white sellers of land to proceed with a challenge to a state court ruling in favor of a neighboring land owner who had sold his property to nonwhite purchasers in breach of a covenant prohibiting conveyances to nonwhites). Defendants argue that Plaintiffs do not meet the criteria for third-party standing articulated in such cases. The rationale of those cases, however, is inapplicable here. Plaintiffs allege that Defendants have interfered with Plaintiffs’ own right to marry, not that Plaintiffs have a right to proceed based only on their fiancés’ injury.
Defendants’ reliance on Warth v. Seldin is misplaced. The plaintiffs in Warth challenged an ordinance in the town of Penfield, New York, claiming that the ordinance had the effect of preventing the town from offering housing to individuals with low and moderate incomes. 422 U.S. at 493. The plaintiffs included members of racial minorities. Id. at 494. One group of plaintiffs included individuals of low-to-moderate income who claimed that they had been excluded from living in Penfield. Id. at 502–07. The Court held that they lacked constitutional standing. The Court noted, “Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents’ restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield and that, if the court affords the relief requested, the asserted inability of petitioners will be removed.” Id. at 504. The Court said, “We find the record devoid of the necessary allegations .” Id.
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*5 A second group of plaintiffs lived in the neighboring city of Rochester and claimed to have suffered an injury in the form of higher taxes that the Penfield ordinance had allegedly forced Rochester to impose to provide lowincome and moderate-income housing in Rochester. Id. at 508–10. These plaintiffs lacked prudential standing. Id. at 509. The Court noted that these plaintiffs were really complaining about taxes imposed by Rochester, which was not a party. Even if injured by Penfield, they were asserting the rights of third parties. Id. at 509–10. “[T]he taxpayer-petitioners are not themselves subject to Penfield’s zoning practices. Nor do they allege that the challenged zoning ordinance and practices preclude or otherwise adversely affect a relationship existing between them and the persons whose rights assertedly are violated.” Id. at 510 (citations omitted).
Defendants mistakenly state, “Presumably, the plaintiffs [in Warth ] also argued that their civil rights were violated, because they had a federal constitutional right to live in [Penfield].” Defs.’ Reply to Pls.’ Opp. To Defs.’ Mot. to Dismiss for Lack of Subject Matter Jurisdiction at 5, ECF No. 39 (emphasis in original). As explained above, the group of Warth plaintiffs who claimed to have been excluded from Penfield lacked standing because they did not allege that the exclusion resulted from the ordinance. By contrast, Plaintiffs allege that DPS’s actions have prevented Plaintiffs from marrying their fiancés. With respect to the taxpayer group of plaintiffs in Warth, the Court expressly noted the lack of any allegation of a relationship with anyone who had been excluded from Penfield. 422 U.S. at 510. Indeed, the taxpayers had only an “incidental congruity of interest” with the excluded persons. Id. By contrast, Plaintiffs here have a direct injury to their own right to marry, and, even if this court had to look beyond Plaintiffs’ own injury, Plaintiffs could not fairly be said to have only an “incidental congruity of interest” with their fiancés.
Defendants’ motion to dismiss for lack of jurisdiction is denied.
B. Failure to Join a Required Party. The Ninth Circuit has noted that a “determination concerning joinder is ‘a practical one and fact specific.’ “ Washington v. Daley, 173 F.3d 1158, 1165 (9th Cir.1999) (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990)). Under Rule 19 of the Federal Rules of Civil Procedure, a court first determines whether an

absent party is necessary. See EEOC v. Peabody Western Coal Co., 400 F.3d 774, 779 (9th Cir.2005). If an absentee is necessary, a court must then determine if it is feasible to order joinder of that absentee. Id. If joinder is not feasible, a court must determine “whether the case can proceed without the absentee, or whether the absentee is an ‘indispensable party’ such that the action must be dismissed.” Id. Defendants argue that Plaintiffs’ fiancés are necessary and indispensable parties. The court disagrees.
*6 Rule 19(a) of the Federal Rules of Civil Procedure states:
(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
With respect to subsection (a)(1)(A), Defendants argue that this court cannot accord Plaintiffs complete relief because the Amended Complaint does not make clear what Plaintiffs are seeking. The Amended Complaint, however, does pray for an order enjoining Defendants from unlawfully interfering with their constitutional rights. Enjoining interference with Plaintiffs’ right to marry is within this court’s power. Plaintiffs also ask for money damages from Defendants in their individual capacities. Plaintiffs’ requests for relief are clearly articulated.
The Ninth Circuit has stated that complete relief under Rule 19(a)(1)(A) means “consummate rather than partial or hollow relief” and “preclud[es] multiple lawsuits on the same cause of action.” EEOC, 400 F.3d at 780. Because the court agrees with Defendants that Plaintiffs’ fiancés would be bound by res judicata should they attempt to bring an action asserting that their rights to marry have
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been infringed on based on the same facts and theories that Plaintiffs are alleging or could have alleged in this action, this court will be able to accord both Plaintiffs and Defendants complete relief with respect to the claims in issue here.
In EEOC v. Peabody Western Coal Company, 400 F.3d at 780, the Ninth Circuit held that an order enjoining a company from enforcing an employment preference was potentially incomplete. The company had agreed to the employment preference in a contract with the Navajo Nation. Id. at 776. Unless bound by the judgment, the Navajo Nation could have later initiated another action to enforce the employment preference, even though that preference would have been held illegal with respect to the company. Id. at 780. The Ninth Circuit concluded that the Navajo Nation was a required party. Id. See also Dawavendewa v. Salt River Project Agric. Improvement and Power Dist., 276 F.3d 1150, 1155–56 (9th Cir.2002) (also addressing an employment preference that a company agreed to in a lease with the Navajo Nation, and holding that complete relief could not be accorded without joining the Navajo Nation because, unless bound by the judgment, the Navajo Nation could later seek to enforce the lease provision).
*7 Defendants say that, if they prevail in the present case, Plaintiffs’ fiancés may later attempt to bring an action based on their own rights to marry, forcing Defendants to relitigate the issue. Unlike the Navajo Nation in EEOC, however, Plaintiffs’ fiancés are situated such that they would be bound by res judicata to the extent they are attempting to assert the same constitutional violations based on the same factual allegations.
Res judicata applies when there is “(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Turtle Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 917 (9th Cir.2012) (quoting Tahoe–Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir.2003)). Given an identity of claims and a final judgment, Plaintiffs’ fiancés would be bound by the judgment in the present case because they are in privity with Plaintiffs. Plaintiffs and their fiancés have identical interests. As the Ninth Circuit said in Headwaters Inc. v. United States Forest Service, 399 F.3d 1047 (9th Cir.2005), “ ‘Privity’ ... is a legal conclusion ‘designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.’ “ Id. at 1052–53 (quoting In re Schimmels, 127 F.3d 875, 881 (9th Cir.1997)). With

respect to the injunctive relief request, Plaintiffs and their fiancés could be said to be in privity because their interests are so closely aligned that Plaintiffs function as “virtual representatives” for their fiancés. See United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980) (quoting Aerojet–General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.1975)).
This court stresses that it is not deeming Plaintiffs to be acting only as representatives for their fiancés. This court, in its earlier discussion concerning Plaintiffs’ standing, has clearly stated that it views Plaintiffs as raising claims based on their own right to marry. But nothing about suing for a violation of one’s own right necessarily precludes one from also being another person’s “virtual representative” for privity purposes. Plaintiffs’ right to marry their fiancés is the mirror image of their fiancés’ right to marry Plaintiffs. Under the circumstances, notwithstanding their denials on this point, Plaintiffs are in privity with their fiancés. This court can accord complete relief among existing parties, and Plaintiffs’ fiancés are therefore not necessary parties under Rule 19(a)(1)(A).3
Defendants also argue that Plaintiffs’ fiancés are required parties under subsection (a)(1)(B)(i). They contend that Plaintiffs’ fiancés’ interests will be impaired if they are bound by a ruling against Plaintiffs.
Subsection (a)(1)(B) is not applicable here. That subsection states that a party must be joined if “that person claims an interest relating to the subject of the action....” As far as this court knows, Plaintiffs’ fiancés, even if they conceivably have an interest, have not claimed any interest relating to the subject of this action.
*8 The Ninth Circuit has held that “[j]oinder [under Rule 19(a)(1)(B) ] is contingent ... upon an initial requirement that the absent party claim a legally protected interest relating to the subject matter of the action.” Altmann v. Republic of Austria, 317 F.3d 954, 971 (9th Cir.2002) amended by 327 F.3d 1246 (9th Cir.2003) (citations and quotation marks omitted) (emphasis in original). See also Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1043 (9th Cir.1983) (holding that the United States was not a necessary party in part because it had never asserted a formal interest in the subject matter of the action or the action itself, and instead had “meticulously observed a neutral and disinterested posture”). “Where a party is aware of an action and chooses not to claim an interest, the district court does not err by holding that joinder was ‘unnecessary.’ “ Altmann, 317 F.3d at 971
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(citing United States v. Bowen, 172 F.3d 682, 689 (9th Cir.1999) (holding that a party was not necessary because that party was aware of the action and “chose not to claim an interest”)).

can adequately represent an Indian tribe unless there exists a conflict of interest between the United States and the tribe.” (quoting Sw. Ctr. for Biological Diversity, 150 F.3d at 1154)).

Defendants do not even suggest that Plaintiffs’ fiancés are unaware of this action. Nor do they contend that Plaintiffs somehow have the burden of establishing their fiancés’ awareness of this lawsuit. What is undisputed is that the fiancés have claimed no interest in it.
Defendants cite to Lopez v. Martin Luther King, Jr. Hospital, 97 F.R.D. 24, 29 (C.D.Cal.1983), in which the United States District Court for the Central District of California stated that an absent party should be joined “if he has an interest in the subject of the proceeding.” Lopez did not address whether that absent party had actually claimed an interest.
Moreover, the Ninth Circuit has also held, “As a practical matter, an absent party’s ability to protect its interest will not be impaired by its absence from the suit where its interest will be adequately represented by existing parties to the suit.” Washington, 173 F.3d at 1167 (citing Sw. Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153 (9th Cir.1998)). “A non-party is adequately represented by existing parties if: (1) the interests of the existing parties are such that they would undoubtedly make all of the non-party’s arguments; (2) the existing parties are capable of and willing to make such arguments; and (3) the non-party would offer no necessary element to the proceeding that existing parties would neglect.” Sw. Ctr. for Biological Diversity, 150 F.3d at 1153–54 (citing Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir.1992)). Plaintiffs’ fiancés’ interests are identical to Plaintiffs’ interests with respect to the requested injunctive relief. There is no reason for this court to think that Plaintiffs are incapable of advancing all appropriate legal theories. The court expects that Plaintiffs will adequately represent their fiancés’ interests in this action. See Washington, 173 F.3d at 1167 (“The United States

*9 While it is theoretically possible that, if Plaintiffs do not obtain injunctive relief, their fiancés will argue that their interests were not adequately represented and they therefore should not be bound by that adverse ruling, that is only a hypothetical and highly unlikely scenario, not one based on any presently discernible factual dispute, conflict of interest (or other ethical problem), legal prohibition, or lawyering deficiency. Indeed, the present record contains not the slightest hint of any such hypothetical problem.
Finally, the court is unpersuaded that the concern about inconsistent obligations set forth in Rule 19(a)(1)(B)(ii) requires that the fiancés be joined. If Plaintiffs prevail on their claim for injunctive relief, the court is unable to envision what relitigation on the constitutional issue Defendants need to fear from Plaintiffs’ fiancés. If Plaintiffs do not prevail, then, assuming this court’s analysis is correct, Plaintiffs’ fiancés are bound by that ruling with respect to those particular constitutional issues based on the same facts in issue here. The court thus declines to consider Plaintiffs’ fiancés required parties under Rule 19(a)(1)(B).
V. CONCLUSION. The court DENIES Defendants’ motion to dismiss for lack of subject matter jurisdiction and Defendants’ motion to dismiss for failure to join a required party.
IT IS SO ORDERED.
	  

Footnotes

1

The Amended Complaint also listed Lenora Santos as a Plaintiff, but Santos voluntarily withdrew her claims. ECF No. 41.

2

This court earlier questioned whether Defendants were really bringing a motion to dismiss for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure, rather than a jurisdictional challenge. On a Rule 12(b)(6) motion, the court would

rely only on the facts alleged in the Amended Complaint. Defendants responded that they did indeed see their motion as falling

under Rule 12(b)(1). As Plaintiffs note, while Defendants say they are bringing a factual challenge, they do not identify specific

jurisdictional facts that they are challenging. Possibly, Defendants seek to characterize their motion as a factual challenge to

jurisdiction for the purpose of putting before this court material outside of the pleadings. However, none of that outside material

actually affects subject matter jurisdiction. Whether the court considers the outside material or not, the court’s ruling would be the

same.

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3

Plaintiffs’ fiancés retain their right to bring damage claims unique to Plaintiffs’ fiancés. Defendants advance no basis on which the

court could say that the fiancés’ individual damage claims, to the extent distinct from Plaintiffs’ damage claims, must be litigated

in this action. The fiancés’ separate damage claims would have to be based on evidence separate from the evidence of Plaintiffs’

damages.

	  

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