Cornel v. Hawaii

• Decision Date: 10 June 2022
• Docket Number: 20-17425
• Citation: 37 F.4th 527
• Parties: Elizabeth CORNEL, Plaintiff-Appellant, v. State of HAWAII; Hawaii Paroling Authority ; Dexter Kauahi, Badge No. 1199, Defendants-Appellees, and Does, John; 1–10; Does, Jane; 1–10; Doe Partnerships, 1–10; Doe Corporations, 1–10, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

37 F.4th 527

Elizabeth CORNEL, Plaintiff-Appellant,

v. State of HAWAII; Hawaii Paroling Authority ; Dexter Kauahi, Badge No. 1199, Defendants-Appellees,andDoes, John; 1–10; Does, Jane; 1–10; Doe Partnerships, 1–10; Doe Corporations, 1–10, Defendants.

No. 20-17425

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2022 Honolulu, Hawaii

Filed June 10, 2022

Paul V.K. Smith (argued) and Terrance M. Revere, Revere & Associates, Kailua, Hawaii, for Plaintiff-Appellant.

William K. Awong (argued) and Caron M. Inagaki, Deputy Attorneys General; Clare E. Connors, Attorney General; Office of the Attorney General, Honolulu, Hawaii; for Defendants-Appellees.

Before: Michael Daly Hawkins, Ryan D. Nelson, and Danielle J. Forrest, Circuit Judges.

R. NELSON, Circuit Judge:

Elizabeth Cornel was on parole when she was evicted from her apartment. When the parole office could not find her, it suspended her parole and issued a "retake warrant." Cornel was arrested seven years later. We hold that the seven-year delay in Cornel's arrest did not violate due process because Cornel was largely responsible for the delay. We also hold that the parole office permissibly suspended Cornel's parole and that her arrest was not unreasonable under the Fourth Amendment. Cornel's state law claims fail because Hawai‘i is immune from liability for her intentional tort claims and Cornel failed to establish negligence.

I

Elizabeth Cornel was released on parole in 2007, with her sentence set to expire in March 2015. As a condition of her parole, Cornel had to keep the parole office informed of her whereabouts.

The first four years of Cornel's parole proceeded uneventfully—so uneventfully, Cornel says, that her parole officer intended to apply for Cornel's early discharge. The record does not show that the parole officer ever submitted a discharge application. But it does show that Cornel was evicted from her apartment in 2011. She sent a letter to the parole office about her eviction and provided an updated P.O. box address, temporary physical address, and phone number. After receiving Cornel's letter, the parole office tried—and failed—to contact Cornel. Her phone number would not receive incoming calls. Mail sent to the P.O. box was returned as undeliverable. And when a parole officer visited the address, Cornel was not there.

The parole office issued a "retake warrant" for Cornel's arrest and suspended her parole. Cornel had no contact with the parole office after her eviction but assumed that "everything was fine" and that she had been discharged from parole. Cornel lived openly on Oahu from 2011 until 2018. Over the course of those years, she visited city, county, and state offices, filed tax returns, registered a business with Hawai‘i's Department of Commerce and Consumer Affairs (in 2016), and renewed her driver's license (in 2017). She also signed leases for two Oahu properties.

The record does not show how frequently the parole office sought to locate Cornel. But the parole office periodically reviews available records and social media accounts to generate leads on outstanding retake warrants. These reviews generally occur about once a month. During one of these routine checks, the parole office learned that Cornel had used a Waimanalo address to renew her driver's license. Cornel was arrested in February 2018 by Officer Dexter Kauahi—shortly after renewing her license but almost seven years after the retake warrant was issued.

Following Cornel's arrest, the parole office extended her maximum parole term to account for her suspension and advised Cornel of her right to appear at a preliminary hearing and present evidence. Cornel waived her right to a pre-revocation hearing and acknowledged that she would be detained. At the revocation hearing, the parole office decided not to revoke Cornel's parole, retroactively rescinded her parole suspension, restored her parole end date to March 2015, and released her from custody.

During the two months she was detained, Cornel lost her home, business, and pets. Cornel sued Kauahi, the parole office, and the State of Hawai‘i for violating her Fourth and Fourteenth Amendment rights and for various torts under Hawai‘i law. The district court granted summary judgment to the defendants.

II

We review de novo the district court's decision to grant summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Frudden v. Pilling , 877 F.3d 821, 828 (9th Cir. 2017). "When interpreting state law, we are bound to follow the decisions of the state's highest court ...." Diaz v. Kubler Corp. , 785 F.3d 1326, 1329 (9th Cir. 2015) (citation omitted).

III

We start with Cornel's constitutional claims. Section 1983 provides a cause of action against "[e]very person who, under color of" law deprives another of "rights, privileges, or immunities secured by the Constitution." 42 U.S.C. § 1983. "States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983." Doe v. Lawrence Livermore Nat'l Lab'y , 131 F.3d 836, 839 (9th Cir. 1997) (quoting Will v. Mich. Dep't of State Police , 491 U.S. 58, 70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ). There are thus two situations in which a state official might be liable to suit under the statute. First, plaintiffs may seek damages against a state official in his personal capacity. Mitchell v. Washington , 818 F.3d 436, 442 (9th Cir. 2016). Second, state officials are "persons" under § 1983 when sued for prospective injunctive relief. Will , 491 U.S. at 71 n.10, 109 S.Ct. 2304. This exception for prospective injunctive relief, called the Ex parte Young doctrine, applies where a plaintiff "alleges an ongoing violation of federal law, and where the relief sought is prospective rather than retrospective." Doe , 131 F.3d at 839 (quoting Idaho v. Coeur d'Alene Tribe , 521 U.S. 261, 294, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (O'Connor, J., concurring)).

Cornel cannot seek damages from Hawai‘i and the parole office because they are not "persons" under § 1983.¹ Although Kauahi could be subject to suit under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), Cornel identifies no ongoing violation of federal law to enjoin. Her § 1983 claim is therefore limited to damages against Kauahi in his personal capacity.

As a state official, Kauahi is entitled to qualified immunity from a claim for damages unless Cornel raises a genuine issue of fact showing (1) a violation of a constitutional right that (2) was clearly established at the time of the alleged misconduct. See Evans v. Skolnik , 997 F.3d 1060, 1064 (9th Cir. 2021) (quoting Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). "We may address these two prongs in either order." Id. (quoting Sandoval v. Las Vegas Metro. Police Dep't , 756 F.3d 1154, 1160 (9th Cir. 2014) ). The Supreme Court recognizes two circumstances where reaching the constitutional issue first would be beneficial: "[1] cases in which the court cannot readily decide ‘whether a right is clearly established without deciding precisely what the existing constitutional right happens to be,’ [2] and cases involving ‘questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.’ " Id. at 1065 (quoting Pearson , 555 U.S. at 236, 129 S.Ct. 808 ). We conclude that both circumstances apply here and therefore begin with the constitutional issues raised by Cornel's claims.

A

Cornel argues that her arrest violated the Fourth Amendment in four ways. First, she contends that the retake warrant was "stale" by the time of her arrest in 2018. Second, she labels her arrest unreasonable because it was three years after the "maximum parole date" noted on the retake warrant. Third, Cornel asserts that the government's interest in arresting her seven years after the alleged violation was de minimis. Finally, she argues that the arrest violated Hawai‘i law.

The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend IV. "Under the general Fourth Amendment approach, we assess reasonableness by examining the totality of the circumstances and balancing the intrusion on the individual's privacy against the promotion of legitimate governmental interests." Sherman v. U.S. Parole Comm'n , 502 F.3d 869, 883 (9th Cir. 2007) (citing Samson v. California , 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ). In most criminal cases, we interpret "reasonableness" to require "a judicial warrant issued upon probable cause." Id. (quoting Skinner v. Ry. Labor Execs.’ Ass'n , 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ). But these requirements do not always apply to searches and seizures of parolees. Because "[r]evocation of parole is not part of a criminal prosecution," we do not extend parolees "the full panoply of rights" promised to people not yet convicted of a crime. Id. at 883 (citation omitted). Although a parolee is not "at the unfettered mercy of the parole authorities, [s]he is justifiably subjected to restrictions not applicable to the population as a whole." Latta v. Fitzharris , 521 F.2d 246, 250 (9th Cir. 1975).

For these reasons, "probable cause is not required to arrest a parolee for a violation of parole." Sherman , 502 F.3d at 884 (citation omitted). Instead, a parole officer may arrest a parolee if the officer "reasonably believes a parolee is in violation of [her] parole." United States v. Rabb , 752 F.2d 1320, 1324 (9th Cir. 1984). In the search context, we have permitted searches of a parolee and her home based on a "hunch" arising from what an officer has learned or observed about the parolee. Latta , 521 F.2d at 250.

Of course, an officer's reasonable belief—like probable cause—can become "stale" over time. Cornel argues that is the case here—i.e., that her arrest was unreasonable because seven years had passed since the retake warrant was issued. But "...