Inouye v. Kemna

• Decision Date: 07 September 2007
• Docket Number: No. 06-15474.,06-15474.
• Citation: 504 F.3d 705
• Parties: Ricky K. INOUYE, Plaintiff, and Zenn K. Inouye, Personal Representative of the Estate of Ricky Kenichi Inouye, aka Ricky K. Inouye, deceased, Plaintiff-Appellant, v. Michael KEMNA; Lucianne Khalaf; Daniel H. Shimizu; Peter B. Carlisle; City and County Of Honolulu; Mark Nanamori, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 705

Ricky K. INOUYE, Plaintiff, and Zenn K. Inouye, Personal Representative of the Estate of Ricky Kenichi Inouye, aka Ricky K. Inouye, deceased, Plaintiff-Appellant, v. Michael KEMNA; Lucianne Khalaf; Daniel H. Shimizu; Peter B. Carlisle; City and County Of Honolulu; Mark Nanamori, Defendants-Appellees.

No. 06-15474.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2007.

Filed September 7, 2007.

Amended October 3, 2007.

Walter R. Schoettle, Walter R. Schoettle, a Law Corporation, Honolulu, HI, for plaintiff Ricky K. Inouye and Plaintiff-Appellant Zenn K. Inouye. Mr. Schoettle presented oral argument.

Carrie K.S. Okinaga and Marie Gavigan, Corporation Counsel for the City and County of Honolulu, and Moona A. Yost, Deputy Corporations Counsel, Honolulu, HI, for Defendants-Appellees Michael Kemna and the City and County of Honolulu. Ms. Gavigan presented oral argument.

Mark. J. Bennett, Attorney General of the State of Hawaii, and Kendall J. Moser, Deputy Attorney General, Honolulu, HI, for Defendant-Appellee Mark Nanamori. Mr. Moser presented oral argument.

Appeal from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding. D.C. No. CV-04-00026-DAE.

Before: DAVID R. THOMPSON, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge TALLMAN.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed September 7, 2007 is amended as follows: The first two sentences of the second paragraph of footnote 3 are struck. The amended footnote shall read:

The prison case, Inouye v. Cayetano, Civ. No. 00-00412, began with a complaint filed on June 13, 2000. Nanamori was added to the prison case in the third amended complaint, filed June 8, 2001, which included the First Amendment issues arising from the parole term incidents now before us. Judge Mollway initially held that Nanamori was not entitled to qualified immunity. Inouye moved to dismiss him from the case soon thereafter, and Nanamori was dismissed. The case was ultimately settled and dismissed on August 12, 2002. Because there was no final judgment on the merits in the case, it has no issue preclusion effects here. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir.2006) (requiring that proceeding "ended with a final judgment on the merits" for collateral estoppel to apply).

Although a consent judgment may sometimes count as the final judgment required for claim preclusion, 18 A WRIGHT AND MILLER, FEDERAL PRACTICE & PROCEDURE § 4443, see also Providence Health Plan v. McDowell, 385 F.3d 1168, 1174 (9th Cir.2004) (providing standards for claim preclusion), it could not do so in this case because Nanamori and the claims against him had been dropped from the suit before the settlement. In any event, both claim and issue preclusion are affirmative defenses, Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 476, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998), and have not been pleaded here.

* * * *

This amendment does not alter the deadline for petitions for rehearing or rehearing en banc in this case. No such petitions have yet been filed and none filed after the original deadline for such petitions will be entertained.

OPINION

BERZON, Circuit Judge:

Ricky K. Inouye alleges violations of his First Amendment rights by his parole officer. He filed this 42 U.S.C. § 1983 action, now carried forward by his son, Zenn K. Inouye ("Zenn"), the personal representative of Inouye's estate.¹

Inouye charges that Mark Nanamori, his parole officer, violated the Establishment Clause by requiring Inouye to attend Alcoholics Anonymous/Narcotics Anonymous ("AA/NA") meetings as a condition of his parole. The District Court of Hawaii granted summary judgment against Inouye. We now reverse the district court on this claim and remand for further proceedings.²

I. BACKGROUND

Inouye, who had a methamphetamine addiction and had been sentenced for drug crimes, was released on parole on November 20, 2000. The events of that parole term form the background for this case.

A.

Inouye had long objected to compelled participation in religion-based drug treatment programs. In June of 2000, while imprisoned, he filed suit against state officials over his placement in such treatment programs in prison.³

Inouye then took steps to avoid religion-based drug treatment programs on parole. Just before his release, on November 9, 2000, his attorney sent a letter to the Hawaii Paroling Authority, expressing Inouye's opposition to being placed in a religion-based narcotics treatment program as a condition of his parole. The letter read, in pertinent part:

Mr. Inouye is a Buddhist. As such, he objects on grounds of the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution to any state imposed religious practice as a condition of his parole. Enclosed is a copy of the decision in Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996), which holds that the Alcoholics Anonymous 12 step program cannot be imposed by the state as a requirement for eligibility for parole. Mr. Inouye does not object to participating in a substance abuse treatment program. However, he does object to any program that has explicit religious content. This includes, but is not limited to, the recitation of prayers at meetings, whether or not Mr. Inouye is required to participate in the prayer. Please assure that there is no religious content in any substance abuse program that is imposed as a requirement of Mr. Inouye's parole.

Nanamori declared that he was familiar with the contents of Inouye's Hawaii Paroling Authority file. When Inouye was released just over a week after the letter was mailed, Nanamori was appointed as his parole officer. Inouye's conditions of parole gave Nanamori the authority to order him into a drug treatment program. The conditions emphasized that "[f]ailure to participate in your treatment and abide by the rules of the program may be considered evidence that you are refusing to participate in the program." Nanamori did not immediately order Inouye into treatment.

Inouye was arrested for trespassing on March 4, 2001 and tested positive for drug use the next day. At that point, Nanamori ordered him to attend the Salvation Army's Addiction Treatment Services program.⁴ The program requires participation in AA/NA meetings, which are rooted, the parties agree, in a regard for a "higher power."

Inouye remained in the program for a few months, but he refused to participate and was terminated from it on June 5, 2001. In part due to Inouye's refusal to participate in the treatment program, Nanamori issued a warrant for Inouye's arrest for parole violations on June 15, 2001, and recommended that his parole be revoked. Inouye's parole was revoked after a hearing on November 7, 2001.

Inouye alleges that his placement in the AA/NA program, and his termination from parole for refusing to participate in the program, violated his First Amendment rights.

B.

Two years after these events, on June 6, 2003, Inouye filed suit in state court under 42 U.S.C. § 1983 against Nanamori among others. On January 16, 2004, the case was removed to federal court.

Nanamori moved for summary judgment. On March 18, 2005, the district court granted Nanamori's motion, holding that he had violated Inouye's First Amendment rights, but had qualified immunity from suit.

During the course of these proceedings, Inouye passed away. His son, Zenn, was named special administrator of Inouye's estate for a six-month term on September 20, 2004 and was substituted as a party on September 29, 2004. Zenn's term expired on March 20, 2005. He was reappointed as personal representative of his father's estate for a three-year term on September 21, 2006.⁵ Zenn filed a timely notice of appeal on March 6, 2006.

II. ANALYSIS

This case comes to us on a grant of summary judgment, so our review is de novo, Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.2007), and we must make all inferences of fact in favor of the nonmoving party, Inouye. Id. Doing so, we assume that Inouye's participation the AA/NA program was a compulsory condition of parole. Inouye had objected in advance of parole to such a program but was assigned to participate in one anyway, and was also "ordered" to continue in the program after threatening to sue program officials. There is no evidence that Inouye was ever told that he had a choice of programs. Under these circumstances, a jury could infer that participation was coerced rather than voluntary. We therefore proceed on that premise.

Nanamori does not argue that ordering Inouye to participate in a religion-based drug treatment program was constitutional. Instead, his defense, accepted by the district court, is that the law on the matter was not clearly established at the time he supervised Inouye's parole and that he, therefore, is immune from suit. We hold, on the contrary, that the law was and is very clear, precluding qualified immunity and on that ground reverse the district court.

Qualified immunity from civil suit is available to government officials performing discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). We examine a qualified immunity defense with a two-step test: First, we determine whether "[t]aken in the light most favorable to the party asserting the injury . . . the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272. If a constitutional violation is present, we go on to ask "whether the right was clearly established," id., applying an objective but fact-specific inquiry. Id. at 202, 121 S.Ct. 2151. To reject a defense of qualified...