Alston v. Read

• Citation: 678 F. Supp.2d 1061
• Decision Date: 14 January 2010
• Docket Number: Civ. No. 07-00266 SPK-LEK.
• Parties: Cornelius ALSTON, et al., Plaintiffs, v. Thomas READ; Nettie Simmons; et al., Defendants.
• Court: U.S. District Court — District of Hawaii

678 F.Supp.2d 1061

Cornelius ALSTON, et al., Plaintiffs, v. Thomas READ; Nettie Simmons; et al., Defendants.

Civ. No. 07-00266 SPK-LEK.

United States District Court, D. Hawaii.

January 14, 2010.

Jack F. Schweigert, Rory S. Toomey, Honolulu, HI, for Plaintiffs.

John F. Molay, Office of the Attorney General, for Defendants.

Colin A. Yost, Cruise & Yost, Daniel M. Gluck, American Civil Liberties Union Hawaii, Honolulu, HI, for ACLU.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

SAMUEL P. KING, Senior District Judge.

INTRODUCTION

Plaintiff Cornelius Alston (a.k.a. Neil Hallman) is a former Hawaii state prisoner. He was supposed to have been released from prison on August 4, 2007, after having served a 10-year sentence for a 1997 drug-related conviction, as well as several other years before that for a previous robbery conviction. For reasons that are the subject of this lawsuit—and for which there might ultimately be a reasonable explanation or defense—Alston was not released until December 27, 2007. (In June 2007, the State Department of Public Safety changed his release date from August 2007 to November 2011, but released him after he obtained an Amended Judgment on December 27, 2007.) As it turns out, Alston was in prison about 145 days more than what his sentencing judge had intended. This is a 42 U.S.C. § 1983 civil rights lawsuit brought by Alston and other allegedly similarly-situated Plaintiffs primarily seeking damages for "over detention."

Defendants Thomas Read and Nettie Simmons are the State DPS employees responsible for changing or re-calculating Alston's release date from 2007 to 2011. They have moved for summary judgment seeking dismissal as to claims by Alston.¹ The motion was argued in September 2009. After argument, the Court issued inclinations and requested additional briefing. The parties, including amicus curiae the American Civil Liberties Union of Hawaii Foundation ("ACLU"), then submitted supplemental briefing and evidence in September and October of 2009. The Court has now reviewed the evidence submitted and carefully considered all written and oral argument. For reasons set forth, the motion is GRANTED as to Counts Five and Six (the claims for violation of the Hawaii State Constitution and for negligence) but the motion is otherwise DENIED.

SUMMARY

• Count Five of the operative complaint (entitled "State Constitutional Violations") fails to state a claim. Even assuming Alston's State Constitutional rights were violated, such a violation is not cognizable under the federal civil rights law, 42 U.S.C. § 1983. See, e.g., Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 371 (9th Cir.1998). And Hawaii's appellate courts have apparently not recognized such a claim under state law. See, e.g., Mow by Mow v. Cheeseborough, 696 F.Supp. 1360, 1365 (D.Haw.1988). Count Five is dismissed. See, e.g., Galario v. Adewundmi, Civ. No. 07-00159 DAE-KSC, 2009 WL 1227874, at *11 (D. Haw. filed May 1, 2009) (granting summary judgment against a plaintiff because such a cause of action has not been recognized).

• Count Six for negligence also fails to state a claim. The claim asserts that a 2004 Settlement Agreement from Tapaoan v. Cayetano, Civ. No. 01-00815 DAE-LEK, created a duty to implement procedural safeguards that would assure proper and timely release of prisoners. It alleges that Defendants in their official capacities breached this duty through their negligence. Section 1983 does not generally provide a remedy for negligence. See, e.g., Daniels v. Williams, 474 U.S. 327, 328-29, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). And, in any event as a matter of state law, a contractual duty cannot form the basis of a common-law negligence claim. See, e.g., Francis v. Lee Enterprises, Inc., 89 Hawai'i 234, 971 P.2d 707, 708 (1999). The Eleventh Amendment also bars the negligence claim for damages. See, e.g., Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

• Federal rights are otherwise implicated. The Court rejects Defendants' argument that, because only an interpretation of a state statute is involved, there are only state rights at issue. Rather, potential deprivation of a "paradigmatic liberty interest"—freedom from incarceration—is evident for purposes of a Section 1983 analysis. Oviatt v. Pearce, 954 F.2d 1470, 1474 (1992). There are genuine issues of material fact as to (1) whether Defendants violated Alston's due process rights under the Fourteenth Amendment to the U.S. Constitution, and (2) whether Defendants were "deliberately indifferent" to Alston's rights under the Eighth Amendment to the U.S. Constitution. See, e.g., McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 246, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) (holding that continued detention after a state loses power to hold a prisoner because a sentence expires violates rights under the Fourteenth Amendment); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) ("Detention beyond the termination of a sentence could constitute cruel and unusual punishment if it is the result of `deliberate indifference' to the prisoner's liberty interest.") (citation omitted); Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir.1990) ("prison officials who are under a duty to investigate claims of computational errors in the calculation of prison sentences may be liable for their failure to do so" when reasonably presented with such evidence).

• Qualified immunity for Defendants is inappropriate at this stage of the proceedings. Disputed questions of material "historical fact" prevent the granting of qualified immunity now. Disputes of material historical facts are for a jury even though the Court would decide as an issue of law the ultimate question of objective reasonableness in a qualified immunity inquiry— whether, even if constitutional rights were violated, Defendants Read or Simmons nevertheless could have believed that their conduct was lawful. See, e.g., Torres v. City of Los Angeles, 548 F.3d 1197, 1210-11 (9th Cir.2008). The primary qualified immunity inquiry would be whether it would have been clear to a reasonable prison official with Defendants' duties that their conduct "was unlawful in the situation they confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (emphasis added). It remains unclear what "the situation they confronted" was when Defendants failed to investigate whether their change in Alston's release date from 2007 to 2011 was contrary to the language of Alston's November 20, 1997 judgment. The Court cannot decide the "objective reasonableness" of Defendants' actions on the current disputed factual record, and so Defendants are not entitled to qualified immunity from suit. (One or both Defendants might, however, ultimately be entitled to a defense of qualified immunity at trial. See, e.g., Torres, 548 F.3d at 1211 n. 9 (noting that "when a case proceeds to trial `qualified immunity can no longer rightly be called an `immunity from suit' (since the suit has already proceeded to its conclusion); rather, it is now effectively a defense.'") (quoting Sloman v. Tadlock, 21 F.3d 1462, 1468 n. 6 (9th Cir.1994)).

BACKGROUND

A. Hawaii Law Regarding Multiple Sentences of Imprisonment.

Hawaii Revised Statutes § 706-668.5 establishes a base line for determining a term of imprisonment where a State of Hawaii convict has multiple sentences. This action centers around applications or interpretations of the older (pre-2008) version of Section 706-668.5, which read in pertinent part as follows:

(1) If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms run concurrently. (Emphasis added.)

As emphasized, different sentences for multiple terms of imprisonment imposed at different times were supposed to run consecutively, unless a State court had ordered otherwise. Such different sentences would be added together, back-to-back. The "default" was consecutive.

However, despite the statutory language, the evidentiary record indicates that the prior (pre-2005) accepted "practice" was generally to treat such sentences to run concurrently.² Thus, during the period at issue with Alston in 1997, the "practice" was generally for multiple sentences from different convictions to run at the same time absent some other indication. Even if there might be some dispute of fact in this regard, the Court assumes for purposes of this summary judgment motion that, before 2005, it was understood with the State courts, with attorneys practicing in those courts, and with the Department of Public Safety that the "default" was for multiple sentences imposed at different times to run concurrently. At minimum, the record indicates that the practice in 1997 was, at least sometimes, contrary to a strict application of the language of Section 706-668.5.

B. Defendants Implement a Change in Sentencing Practice.

Thomas Read is the Offender Management Administrator with the State of Hawaii Department of Public Safety. Read depo. at 4. He has a law degree and has extensive prior experience with the Federal Bureau of Prisons and the U.S. Department of Justice. Id. at 6. He is the State official ultimately responsible for determining release dates of State prisoners (or at least the official responsible for interpreting court orders or judgments that imposed terms of imprisonment). Id. at 7. Read was hired in late-2004, at least in part specifically to "develop a policy and procedure to...