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Civil Rights Litigation Clearinghouse
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Case Name Davis v. Abercrombie PC-HI-0005
Docket / Court 11-cv-00144-LEK-BMK ( D. Haw. )
State/Territory Hawaii
Case Type(s) Prison Conditions
Special Collection Solitary confinement
Case Summary
On February 7, 2011, six Hawaii residents of Native Hawaiian ancestry held in for-profit prisons filed this state court class action lawsuit on behalf of themselves and those similarly situated. Each plaintiff had been transferred to one of two private prisons in Arizona pursuant to a state ... read more >
On February 7, 2011, six Hawaii residents of Native Hawaiian ancestry held in for-profit prisons filed this state court class action lawsuit on behalf of themselves and those similarly situated. Each plaintiff had been transferred to one of two private prisons in Arizona pursuant to a state contract: Saguaro Correctional Center or Red Rock Correctional Center. Each plaintiff followed Native Hawaiian religious practices. Represented by the Native Hawaiian Legal Corporation and private attorneys, they brought this action against the Hawai'i state governor, the director of the Department of Public Safety, and CoreCivic (formerly Corrections Corporation of America). The plaintiffs alleged that the defendant prisons prohibited them from exercising their constitutional and statutory right to practice their religion by limiting their access to sacred items, sacred spaces, spiritual advisors, daily worship practices, and observance of Makahiki ceremonies. The initial claims arose under 42 U.S.C. § 1983 and state law. The complaint sought declaratory and injunctive relief under state law, as well as First and Fourteenth Amendment free exercise and equal protection rights, such that the defendants would provide a policy that would allow the plaintiffs the time and space necessary to follow the practices of their faith. Additionally, the plaintiffs requested compensatory damages and attorneys' fees and costs.

On March 8, 2011, the defendants removed the case to the U.S. District Court for the District of Hawaii. On March 23, they moved for a change of venue to the District Court of Arizona because of the location of the two private prisons. On May 27, Judge Barry M. Kurren denied the motion, holding its removal distinguished it from Bush v. Hawaii and Davis v. Hawaii. Section 28 U.S.C. 1441 governed once the case was removed and because the venue was not inconvenient, it remained in Hawaii. 2011 WL 2118276.

On November 14, 2011, the plaintiffs filed an amended complaint seeking class certification and requesting damages and classwide declaratory and injunctive relief. The complaint also added claims that the defendants' conduct violated the Religious Land Use and Institutionalized Persons Act. On March 22, 2012, the plaintiffs moved to compel class certification. The defendants responded by both opposing the motion and filing for a protective order against discovery that they alleged was unduly burdensome. Discovery continued to be litigated throughout the case by both parties. The defendants also moved for a class determination no later than July, citing plaintiffs' delay in filing an action. On April 26, the plaintiffs requested a preliminary injunction, requesting immediate replacement of certain personal, religious items.

On May 11, 2012, Judge Kurren granted in part the plaintiffs' motion to compel class certification and granted in part the defendants' protective order. {ADD OPINION CITE?}

The plaintiffs filed a second amended complaint on August 22, 2012, with a supplemental complaint filed on behalf of one plaintiff who claimed additionally that he experienced unlawful retaliation in the form of segregation and removal from his job. On September 30, 2012, Judge Leslie E. Kobayashi denied two plaintiffs' request for a preliminary injunction because the likelihood of irreparable harm was minimal in these individual cases. 903 F.Supp.2d 975.

In December 2012, the defendants moved to dismiss for failure to exhaust available administrative remedies as prescribed by the Prison Litigation Reform Act. The defendants claimed that the plaintiffs failed to properly file grievances as to their alleged harms. Although the parties had vacated previously set settlement conferences, in March 2013, the plaintiffs requested and the court granted mandatory settlement conferences before Judge Kurren. Simultaneously, the plaintiffs moved for a protective order prohibiting retaliation against and intimidation of witnesses, which was denied at the first settlement conference without prejudice.

On April 11, 2013, Judge Kobayashi granted in part and denied in part the defendants' motion to dismiss for failure to exhaust. The motion was granted as to: (1) the claims for regular meetings with a spiritual advisor made by certain plaintiffs; (2) the supplemental retaliation claims and claims for regular meetings with a spiritual advisor; and (3) and one plaintiff's claims for daily religious congregation and establishment of an outdoor altar. The judge denied the motion as to: (1) the state law claims; (2) claims for congregation with other practitioners on a daily basis, participation in certain Makahiki rituals and ceremonies, access to sacred items, and establishment of an outdoor altar; (3) one plaintiff's claims for participation in certain Makahiki rituals and ceremonies, regular meetings with a spiritual advisor, and access to sacred items; and (4) all of another plaintiff's religious claims. 2013 WL 1568425. Motions for partial reconsideration were denied. 2013 WL 2468356.

On July 31, 2013, the defendants moved for summary judgment. The following September, the court ordered a judgement on the pleadings and dismissed all claims against the governor as a defendant, removing him as a party. It also dismissed claims under count XXI in the second amended and supplemental complaints, which had alleged that restrictions on observance of the Makahiki caused by the transfer to an Arizona prison violated Hawaiian state statutes and the state constitution. The court held that providing a remedy for these claims would create an implausible and infeasible obligation on the state beyond what the state constitution required. The court also dismissed the defendants' request for sanctions. 2013 WL 5204982.

On October 31, the plaintiffs moved for partial summary judgment on the claims filed under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and on December 23, a counter-motion for summary judgment accompanied their response to the defendants' motion. The plaintiffs moved to remand state law claims, but the request was denied. Oral arguments were held on January 27, 2014 on the motions and counter-motions for summary judgment. On March 31, Judge Kobayashi granted in part and denied in part both the defendants' motion and the plaintiffs' motion for partial summary judgment on the RLUIPA claims. The court also granted the counter-motion for summary judgment brought on the behalf of one plaintiff. That left (1) those claims seeking damages and retrospective equitable relief; (2) claims against Red Rock seeking prospective declaratory and injunctive relief; (3) one plaintiffs claims seeking prospective declaratory and injunctive relief regarding Saguaro; (4) another plaintiff's claims seeking prospective declaratory and injunctive relief regarding restricted custody at Saguaro; (5) the state law retaliation claim. 2014 WL 1321006. The defendants subsequently moved for reconsideration of their summary judgment motion, which Judge Kobayashi granted in part in June 2014. 2014 WL 2468348 (Amended 2014 WL 2716856). The court denied the plaintiffs leave to file a third amended complaint in May 2014.

On May 13, 2014, the remaining defendants moved for summary judgment on the issue of sovereign immunity and damages. On July 31, Judge Kobayashi granted summary judgment to the defendants in part. The court granted summary judgment in favor of the defendants on: (1) all § 1983 claims against the Director of Hawaii Department of Public Safety seeking retrospective or declaratory relief; (2) claims seeking damages or retrospective relief under the Hawaii State Constitution; and (3) state law retaliation claims seeking punitive damages. (4) The plaintiffs remaining claims under § 1983 and RLUIPA were limited to compensatory and nominal damages only. 2014 WL 3809499.

The plaintiffs also filed a second motion to certify the class and amended that motion in July 2014. On August 21, 2014, Judge Kobayashi granted a preliminary ruling on class certification on the record. The court certified a "prospective relief class" to refer to claims for prospective relief regarding daily, outdoor, group worship and access to sacred items. The court denied certification of a damages class. The court withheld a ruling on prospective relief subclasses. On September 30, 2014, Judge Kobayashi certified the prospective relief class and defined it as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are and/or will be confined to Saguaro Correctional Center ("Saguaro"); c) in the general population; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith. The court also established a subclass of those individuals of the prospective relief class held in protective custody. A class seeking nominal damages and other retrospective relief was also established and defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the general population; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith. From that class, the court established two classes: (1) the "SHIP Damages Subclass," defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the Special Housing Incentive Program (SHIP); and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith; and (2) the "Protective Custody" damages subclass, defined as a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in protective custody; and d) who have, according to Saguaros's established procedures, declared that the Native Hawaiian religion is their faith. All remaining class claims were denied and remained only to be litigated on behalf of the named plaintiffs. 2014 WL 4956454.

On November 10, Judge Kobayashi entered an order addressing the remaining class claims from the court's earlier disposition on summary judgment and other claims regarding Makahiki and certain religious items. It held that those class claims still remained for plaintiffs to pursue. The plaintiffs were subsequently ordered to provide notice to members of the classes and subclasses.

On November 12, 2014, the plaintiffs filed a second motion for a protective order to prohibit retaliation against class participants and intimidation of witnesses. The defendants moved to recoup attorneys' fees and costs as to this motion, but the court denied it as premature on December 3. On December 24, the plaintiffs' second motion was denied. 2014 WL 7366685. The parties prepared for an estimated 10-day trial.

In May 2015, the parties requested and held a series of expedited settlement conferences before Judge Kurren that month. The parties first presented a settlement agreement on the record on June 5, 2015. Settlement talks continued through September and October between the parties. Although the case settled on October 16, 2015, negotiations continued through March 2016 when the defendants requested preliminary approval of the May 14 settlement terms (as expressed on the record on June 5) and a fairness hearing. The named plaintiffs subsequently opposed it, claiming a settlement had never been reached and the terms were part of the negotiation process. On September 7, 2016, Judge Kobayashi granted preliminary approval of the settlement and ordered that plaintiffs give notice by December 1 to object or opt out of the settlement. Though the plaintiffs claimed a settlement had never been reached and a number of members of the class filed letters of objection, the court reviewed discussions under contract law and held, under an analysis of Hanlon factors for fairness, that a settlement had been reached on April 11, 2017.

In the settlement, registered Native Hawaiian practitioners in the general population of the prisons and protective custody were permitted to retain in-cell one each of the requested religious items in a Ziploc bag along with other in-cell property, previously authorized sea salt, and written religious materials. Other materials would be available for check-out, including communal religious items stored in the chapel curing group programming, or purchase, including coconut oil and approved amulets. Those members of the class in administrative or disciplinary segregation would be allowed one each of standard religious items, except for coconut oil or bamboo nose flutes due to safety and security reasons. Saguaro agreed to publish an in-cell retention list and publish a communal items list in its chapel and add the lists to its policy. Donations were restricted; but replacement of communal use religious items could be requested so long as Saguaro agreed to work with the inmate population to identify a source or vendor for replacement. Practitioners were permitted outdoor worship classes six times per year for 1.5 hours each and to participate in two solstice and equinox and two Makahiki celebrations each year. They were also permitted weekly group gatherings for 1.5 hours in a secure location to be determined by the facility and access to a limited number of communal items stored in the chapel. Two additional Makahiki celebrations within a few days of the Makahiki celebrations were also permitted on a limited basis, with the same food offerings provided. Upon request and subject to availability, registered practitioners could request to meet with a spiritual advisor through the cell door for 15–20 minutes for non-disruptive ministry, prayers, or chants. Ceremonial food offering could be administered by the advisor through the cell door food slot and an inmate could receive an in-cell meal tray provided to GP inmates participating in Makahiki, given written advance request. Other SHIP inmates would be allowed to meet with the spiritual advisor in the dayroom for similar activities upon request and subject to availability for the Makahiki. However, participation in programming would be subject to restrictions for safety and security risks based on an individualized assessment of the inmate’s history and behavior.

All plaintiffs, both individual and class, waived and released all claims for damages. Instead, the defendant CoreCivic agreed to pay $70,000 to the Native Hawaiian Legal Corporation for costs incurred. Except for those expressly provided in the order, the parties bore their own attorneys’ fees and costs. The parties agreed that implementation and religious items would be made available within 60 days of the agreement. They also agreed to forgo a consent decree and court-ordered monitoring. The court did not retain jurisdiction to enforce the settlement.

An amended settlement order was submitted May 22, 2017 to reflect CoreCivic's name change. 2017 WL 2234175. The case was dismissed with prejudice and is now closed.

Chelsea Rinnig - 07/04/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Equal Protection
Free Exercise Clause
Defendant-type
Corrections
Discrimination-basis
Religion discrimination
General
Administrative segregation
Conditions of confinement
Disciplinary segregation
Language/ethnic/minority needs
Religious programs / policies
Solitary confinement/Supermax (conditions or process)
Plaintiff Type
Private Plaintiff
Race
Asian/Pacific Islander
Type of Facility
Non-government for profit
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Religious Freedom Rest. Act/Religious Land Use and Inst. Persons Act (RFRA/RLUIPA)
State law
Defendant(s) CoreCivic
Hawaii Department of Public Safety
Plaintiff Description Hawaiian residents of Native ancestry and religion, held in for-profit prisons in Arizona.
Class action status sought Yes
Class action status granted Yes
Prevailing Party Mixed
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Private Settlement Agreement
Case Closing Year 2017
Case Ongoing No
Additional Resources
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  Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
Date: May 2006
By: Margo Schlanger (Washington University Faculty)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
Book
Date: Jan. 1, 1998
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
11-cv-00144-LEK-BMK (D. Haw.)
PC-HI-0005-9000.pdf | Detail
Date: 03/08/2011
Source: PACER [Public Access to Court Electronic Records]
General Documents
Defendants' Notice of Removal [ECF# 1]
PC-HI-0005-0002.pdf | Detail
Date: 03/08/2011
Source: PACER [Public Access to Court Electronic Records]
Order Denying Defendants' Motion to Transfer Venue [ECF# 28] (2011 WL 2118276) (D. Haw.)
PC-HI-0005-0004.pdf | WESTLAW | Detail
Date: 05/27/2011
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 145]
PC-HI-0005-0001.pdf | Detail
Date: 08/22/2012
Source: PACER [Public Access to Court Electronic Records]
Supplemental Complaint for Damages and for Classwide Declarator and Injunctive Relief [ECF# 146]
PC-HI-0005-0005.pdf | Detail
Date: 08/22/2012
Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion for Preliminary Injunction [ECF# 182] (903 F.Supp.2d 975) (D. Haw.)
PC-HI-0005-0006.pdf | WESTLAW| LEXIS | Detail
Date: 09/30/2012
Source: PACER [Public Access to Court Electronic Records]
Order Granting Defendant's Motion for Judgment on the Pleadings [ECF# 390] (2013 WL 5204982) (D. Haw.)
PC-HI-0005-0007.pdf | WESTLAW | Detail
Date: 09/13/2013
Source: PACER [Public Access to Court Electronic Records]
Amended Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment [ECF# 544] (2014 WL 2716856) (D. Haw.)
PC-HI-0005-0008.pdf | WESTLAW | Detail
Date: 06/13/2014
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment Re: Sovereign Immunity/Damages [ECF# 596] (2014 WL 3809499) (D. Haw.)
PC-HI-0005-0010.pdf | WESTLAW | Detail
Date: 07/31/2014
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Plaintiffs' Amended Second Motion for Class Certification [ECF# 644] (2014 WL 4956454) (D. Haw.)
PC-HI-0005-0011.pdf | WESTLAW | Detail
Date: 09/30/2014
Source: PACER [Public Access to Court Electronic Records]
Order Regarding Remaining Claims [ECF# 654] (D. Haw.)
PC-HI-0005-0009.pdf | Detail
Date: 11/10/2014
Source: PACER [Public Access to Court Electronic Records]
Transcript of Settlement Terms on the Record [ECF# 751]
PC-HI-0005-0012.pdf | Detail
Date: 06/05/2015
Source: PACER [Public Access to Court Electronic Records]
Amended Order Granting Final Approval of Class Action Settlement [ECF# 875] (2017 WL 2234175) (D. Haw.)
PC-HI-0005-0013.pdf | WESTLAW | Detail
Date: 05/22/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Kobayashi, Leslie Emi (D. Haw.)
PC-HI-0005-0006 | PC-HI-0005-0007 | PC-HI-0005-0008 | PC-HI-0005-0009 | PC-HI-0005-0010 | PC-HI-0005-0011 | PC-HI-0005-0013 | PC-HI-0005-9000
Kurren, Barry M. (D. Haw.) [Magistrate]
PC-HI-0005-0004 | PC-HI-0005-0012 | PC-HI-0005-9000
Plaintiff's Lawyers Haia, Moses K.N. III (Hawaii)
PC-HI-0005-9000
Kawahito, James Kazou (California)
PC-HI-0005-0001 | PC-HI-0005-0005 | PC-HI-0005-9000
Kopper, David Keith K (Hawaii)
PC-HI-0005-9000
Ley, Leina'ala L (Hawaii)
PC-HI-0005-9000
Luke, Howard K.K. (Hawaii)
PC-HI-0005-0012 | PC-HI-0005-9000
Manley, Sharla Ann (Hawaii)
PC-HI-0005-0001 | PC-HI-0005-0005 | PC-HI-0005-0012 | PC-HI-0005-9000
Sprenger, Andrew B (Hawaii)
PC-HI-0005-0001 | PC-HI-0005-0005 | PC-HI-0005-9000
Westrick, Shawn (California)
PC-HI-0005-0001 | PC-HI-0005-0005 | PC-HI-0005-9000
Defendant's Lawyers Guzman, Jamie (Arkansas)
PC-HI-0005-9000
Lewis, David C. (Arizona)
PC-HI-0005-9000
Love, Rachel (Arizona)
PC-HI-0005-0012 | PC-HI-0005-9000
Luria, April (Hawaii)
PC-HI-0005-0002 | PC-HI-0005-0012 | PC-HI-0005-9000
Roeca, Jodie D. (Hawaii)
PC-HI-0005-9000
Struck, Daniel Patrick (Arizona)
PC-HI-0005-9000
Wieneke, Kathleen L (Arizona)
PC-HI-0005-9000
Other Lawyers Bickerton, James J (Hawaii)
PC-HI-0005-9000
Gluck, Daniel M (Hawaii)
PC-HI-0005-9000

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