Davis v. Abercrombie
| Decision Date | 27 May 2011 |
| Docket Number | CV. NO. 11-00144 LEK-BMK |
| Parties | RICHARD KAPELA DAVIS; et al., Plaintiffs, v. NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawaii; et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Before the Court is Defendants the Governor of Hawaii Neil Abercrombie ("Governor"), Interim Director of the Hawaii Department of Public Safety Jodie Maesaka-Hirata ("DPS Director"), and Corrections Corporation of America's ("CCA") (collectively "Defendants") Motion to Transfer Venue. (Doc. # 7.) The Court heard the motion on May 10, 2011. After careful consideration of the motion, the supporting and opposing memoranda, and the arguments of counsel, the Court DENIES Defendants' Motion to Transfer Venue.
Plaintiffs Richard Kapela Davis, Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane, III, and Ellington Keawe (collectively "Plaintiffs") are Hawaii prisoners who were convicted and sentenced under Hawaii law. (Compl. ¶¶ 17, 25-30; Opp'n at 3.) Pursuant to a contract entered into between the Hawaii Department of Public Safety ("DPS") and the CCA ("DPS-CCA contract"), Plaintiffs were transferred to one of two correctional facilities located in Arizona, which are owned and operated by the CCA ("CCA correctional facilities"). (Compl. ¶¶ 11, 16-17, 25-30; Answer ¶¶ 9, 17; Mem. in Supp. of Mot. at 1; Opp'n at 3-4.) The CCA correctional facilities are Saguaro Correctional Facility ("Saguaro") and Red Rock Correctional Center ("Red Rock"). (Compl. ¶¶ 25-30.) The DPS-CCA contract governs the confinement, custody, and care of Hawaii prisoners at Saguaro and Red Rock. (See Opp'n Ex. 1.)
On February 7, 2011, Plaintiffs filed a complaint in the Circuit Court of the First Circuit, State of Hawaii ("state court"). (Doc. # 1 Ex. A.) Plaintiffs, who maintain they are indigent, are represented by attorneys from the Native Hawaiian Legal Corporation ("NHLC") on a pro bono basis. (Sprenger Decl. ¶ 5.) The NHLC is located in Hawaii, and is the only private, non-profit law firm in the nation that specializes in native Hawaiian rights. (Id ¶¶ 2-3.) None of its attorneys are licensed to practice law in the District of Arizona. (Id ¶ 2.)
The complaint names the Governor and DPS Director in their official capacities as Defendants. (Compl. ¶¶ 12-13.) The complaint also names the CCA as a Defendant. (Id.¶ 16.) The Governor and DPS Director are Hawaii residents. (Opp'n at 3-4.) The CCA is a Maryland corporation with its principal place of business in Tennessee. (Answer ¶ 17; Mem. in Supp. of Mot. at 1.)
The complaint alleges that Plaintiffs are native Hawaiian and that they practice the native Hawaiian religion. (Compl. ¶¶ 9, 31.) The complaint alleges that Defendants are enforcing a policy, or engaging in a practice, that prevents Plaintiffs from practicing the native Hawaiian religion, and that gives preference to inmates who practice other religions. (See, e.g., id. ¶¶ 144-48, 156-60, 162-65, 168-72, 174-77, 180-84, 187-91, 199-203, 206-10, 212-15, 218-22, 224-27, 23034, 237-41.) For example, the complaint alleges that Plaintiffs are prevented from: meeting with other native Hawaiian practitioners on a daily basis for group worship (see, e.g., id. ¶¶ 144-48); observing the opening and closing of the Makahiki season with certain religious protocol (see, e.g., id. ¶¶ 156-60); meeting with a spiritual advisor to observe the opening and closing of the Makahiki season with certain religious protocol (see, e.g., id. ¶¶ 162-65); accessing certain sacred items that are critical to the practice of their religion (see, e.g., id. ¶¶ 168-72); meeting with a spiritual advisor to assist in the use of certain sacred items criticalto the practice of their religion (see, e.g., id. ¶¶ 174-77); establishing a sacred outdoor space with at least two spiritually significant stones for group worship (see, e.g., id. ¶¶ 180-84); and meeting with a spiritual advisor on a regular basis (see, e.g., id. ¶¶ 187-91). The complaint alleges that inmates who practice other religions are permitted to do the foregoing. (See, e.g., id. ¶¶ 199-203, 206-10, 212-15, 218-22, 224-27, 230-34, 237-41.) Plaintiffs, thus, allege that Defendants violated their rights to the free exercise of religion and equal protection of the law under the First and Fourteenth Amendments and article I, sections 4 and 5 of the Hawaii Constitution. (Id. ¶¶ 139-346.)
Plaintiffs also allege that Defendants violated their rights guaranteed by article XII, section 7 of the Hawaii Constitution. (Id. ¶¶ 347-59.) This section provides, "The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights." Haw. Const. art. XII, § 7. Plaintiffs allege that Defendants violated this section by preventing them from participating in the opening and closing of the Makahiki season with certain religious protocol, and using certain sacred items. (Compl. ¶¶ 356-57.)
Defendants removed the case from state court to this Court on March 8, 2011. (Doc. # 1.)
On March 23, 2011, Defendants moved to transfer this case to the District of Arizona pursuant to 28 U.S.C. §§ 1391(b) and 1406(a), and 28 U.S.C. § 1404(a). (Doc. # 7.) Defendants argue that this case should be treated in the same manner that two prior cases, to which Plaintiff Richard Kapela Davis ("Davis") was a party, were treated. (Mot. at 2; Reply at 5-6.) In the first case, Bush v. Hawaii, Civ. No. 04-00096 DAE-KSC, Davis and other Hawaii prisoners filed a lawsuit in this Court, alleging that the defendants violated their rights under the federal Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), by preventing them from practicing the native Hawaiian religion during a Makahiki festival at a CCA correctional facility located in Oklahoma. 2011 WL 563564, at *1 (D. Haw. Jan. 20, 2011). A settlement was reached and final judgment was entered. Id. However, one of the plaintiffs later sought to reopen the case so that he could supplement the amended complaint with allegations relating to his inability to participate in a Makahiki festival at a CCA correctional facility located in Arizona. Id. at *2-3. The magistrate judge recommended denying the request because this Court lacked jurisdiction toentertain the motion or grant the relief sought. Id. The magistrate judge further recommended that even if the Court had jurisdiction, supplementation was inappropriate. Id. at *3. The magistrate judge concluded that, among other things, venue in Hawaii was improper under § 1391(b) because the events and omissions alleged occurred substantially, if not entirely, in Arizona. Id. at *5. The district judge adopted the magistrate judge's recommendations. See Bush v. Hawaii, Civ. No. 04-00096 DAE-KSC, 2011 WL 563093 (D. Haw. Feb. 8, 2011).
In the second case, Davis v. Hawaii, Civ. No. 08-00434 JMS-BMK, Davis, proceeding pro se, filed a lawsuit in this Court against individuals and agencies located in Hawaii and Arizona. 2009 WL 1227841, at *1 (D. Haw. May 4, 2009). The defendants included the governors of Hawaii and Arizona, the CCA, the DPS and its Director, the Arizona Department of Corrections ("ADC") and its Director, and DPS and Saguaro employees. Id. In his complaint, Davis alleged that the defendants violated his rights under the federal Constitution and the RLUIPA. Id. Specifically, he alleged that CCA and Saguaro employees prevented him from practicing his native Hawaiian religion when they failed to hold a Makahiki closing ceremony feast, failed to distribute food for that ceremony, and later distributed the food to other inmates who were not associated with the Makahiki festival or the native Hawaiian religion. Id. at *2. Thedefendants moved to transfer the case to the District of Arizona, and this Court granted their motion. Id. at *1. First, the Court concluded that venue in Hawaii was improper pursuant to § 1391(b) because the events and omissions complained of occurred substantially in Arizona. Id. at *4. The Court concluded that the interest of justice, however, favored transferring the case pursuant to § 1406(a), rather than a dismissal. Id. Second, the Court concluded that even if venue in Hawaii were proper, the case should be transferred to the District of Arizona pursuant to § 1404(a) for the convenience of the parties and witnesses, and in the interest of justice. Id. at *5.
Here, Defendants move to transfer this case to the District of Arizona pursuant to §§ 1391(b) and 1406(a), and § 1404(a). Specifically, Defendants argue that because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in Arizona, venue in Hawaii is improper under § 1391(b). (Mem. in Supp. of Mot. at 2-7.) Defendants thus argue that the case should be transferred to the District of Arizona pursuant to § 1406(a) as it could have been brought there. (See id. at 6-7.) Defendants argue that even if venue in Hawaii is proper, the Court should nevertheless transfer the case as a matter of convenience and in the interest of justice pursuant to § 1404(a). (Id. at 7-10.)
Plaintiffs filed their opposition to Defendants' motion on April 19, 2011, and on April 26, 2011, Defendants replied. (Docs. ## 21, 22.)
Defendants argue that venue in Hawaii is improper under § 1391(b). (Mem. in Supp. of Mot. at 2-7.) This section provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same...
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