R.G. v. Koller

• Decision Date: 07 February 2006
• Docket Number: No. Civ.05-00566 JMS/LEK.,Civ.05-00566 JMS/LEK.
• Citation: 415 F.Supp.2d 1129
• Court: U.S. District Court — District of Hawaii
• Parties: R.G., an individual; C.P., an individual by and through her next friend, A.W.; and J.D., an individual, Plaintiffs, v. Lillian KOLLER, Director of the State of Hawaii Department of Human Services, in her individual and official capacities; Sharon Agnew, Director of the Office of Youth Services, in her individual and official capacities; Kaleve Tufonoiosefa, Hawaii Youth Correctional Facility Administrator, in her individual and official capacities; et al., Defendants.

415 F.Supp.2d 1129

R.G., an individual; C.P., an individual by and through her next friend, A.W.; and J.D., an individual, Plaintiffs, v. Lillian KOLLER, Director of the State of Hawaii Department of Human Services, in her individual and official capacities; Sharon Agnew, Director of the Office of Youth Services, in her individual and official capacities; Kaleve Tufonoiosefa, Hawaii Youth Correctional Facility Administrator, in her individual and official capacities; et al., Defendants.

No. Civ.05-00566 JMS/LEK.

United States District Court, D. Hawaii.

February 7, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lois K. Perrin, American Civil Liberties Union of Hawaii, Los Angeles, CA, Tamara Lange, ACLU Lesbian & Gay Rights Project, San Francisco, CA, Angela Padilla, Matthew I. Hall, Natalie Naugle, Morrison & Foerster LLP, Derik T. Fettig, Morrison & Foerster LLP, Los Angeles, CA, Mei-Fei Kuo, Paul Alston, Alston Hunt Floyd & Ing, Honolulu, HI, for Plaintiffs.

Blair A. Goto, Heidi M. Rian, John F. Molay, Kendall J. Moser, Lisa M. Ginoza, William J. Wynhoff, Dennis K. Ferm, Hugh R. Jones, Cora K. Lum, Renee N.C. Schoen, Brian P. Aburano, Russell A. Suzuki, Office of the Atty. Gen., Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

SEABRIGHT, District Judge.

Based on a 2004 investigation of the conditions at the Hawaii Youth Correction Facility ("HYCF"), the United States Department of Justice ("Dan found it "no exaggeration to describe HYCF as existing in a state of chaos." After reviewing the extensive pleadings filed by the parties and holding an evidentiary hearing, the court finds that the DOJ finding is in fact not exaggerated.

Plaintiffs filed a motion for preliminary injunction seeking relief on their Due Process, Equal Protection, Establishment Clause and access to counsel claims. Plaintiffs ask the court to require defendants to refrain from harassing, abusing, discriminating against, or isolating plaintiffs based on their actual or perceived sexual orientation, gender identity or sex; to refrain from failing to protect plaintiffs from anti-lesbian, gay, bisexual, and transgender ("LGBT") peer harassment and abuse; to refrain from endorsing religion and engaging in religious indoctrination; and to refrain from obstructing plaintiffs' access to counsel. Plaintiffs also ask the court to direct defendants to retain a mutually agreed-upon corrections expert to guide development and implementation of necessary policies, procedures, and training at HYCF.

For the reasons stated herein, the court GRANTS the plaintiffs' motion for a preliminary injunction as to their Due Process claim and DENIES their motion for preliminary injunction as to their Establishment Clause and access to counsel claims. The court does not reach the plaintiffs' Equal Protection claim.

I. BACKGROUND

HYCF is a secure juvenile correctional facility operated by the State of Hawaii Office of Youth Services ("OYS") and located in Kailua, Hawaii. OYS is administratively associated with the Department of Human Services ("DHS").

Children who have been adjudicated delinquent in court may be committed to HYCF, the only such secured facility in the State of Hawaii. (Department of Justice Report ("DOJ Report") at 3, attached as Ex. B to the Declaration of Lois Perrin ("Perrin Decl.").)¹ HYCF is separated into three housing units: the Secured Care Facility, which is comprised of three housing modules for boys; the Observation and Assessment Cottage ("0 & A") for girls; and Ho`okipa Makai, a cottage for housing short-term boys. (Declaration of Kaleve Tufono-Iosefa ("Tufono-Iosefa Decl.") ¶¶ 6-9.)

Plaintiffs are three teenagers who have been confined at the HYCF and who either identify as or are perceived to be LGBT. Each of the plaintiffs has been confined at HYCF on more than one occasion. Plaintiffs sought and received permission to proceed in this action using pseudonyms.

Plaintiff R.G. is a gay female who has been confined at HYCF on three occasions, for a total of approximately fifteen months. (Declaration of R.G. ("R.G. Decl.") ¶¶ 2, 3, 7, 44-47.) R.G. was first confined at HYCF from March 2004 to June 2004. (R.G. Decl. ¶¶ 2, 3, 7, 44-47; Ex. G to Tufono-Iosefa Decl.) R.G. was later returned to HYCF in August 2004 and remained there until August 2005. (R.G. Decl. ¶ 7; Ex. G to Tufono-Iosefa Decl.). R.G. was returned to HYCF a third time on September 8, 2005, after the Complaint in this action had been filed. (R.G. Dec1.¶ 47.)

Plaintiff J.D. is a boy who was perceived to be gay while at HYCF. HE has been confined at HYCF on two occasions, for a total of approximately six months. J.D. was first confined at HYCF from July 27, 2004 until January 4, 2005. (Ex. I to Tufono-Iosefa Decl.; Declaration of J.D. ("J.D. Decl.") ¶ 48.) J.D. was returned to HYCF a second time on June 20, 2005 and remained there until July 5, 2005. (J.D. Decl. ¶¶ 50, 53; Ex. I to Tufono-Iosefa Decl.)

Plaintiff C.P. is a transgender girl who was first confined at HYCF in February 2004. (Declaration of C.P. ("C.P. Decl.") ¶ 10.) C.P. remained at HYCF for most of 2004, excepting a short-lived foster placement in July of 2004. (C.P. Dec1.¶¶ 11, 25.) C.P. was placed in a foster program in December of 2004 and remained in foster placements until her return to HYCF in August of 2005, shortly before the Complaint was filed in this action. (C.P. Decl. ¶¶ 51-52.) C.P.'s confinement at HYCF totaled approximately eight months.

Defendants are, in their individual and official capacities: Lillian Koller, Director of the DHS; Sharon Agnew, Director of OYS; and Kaleve Tufono-Iosefa, the HYCF Administrator ("Youth Facility Administrator" or "YFA"). The court refers to Koller, Agnew, and Tufono-Iosefa collectively as the "supervisory defendants." The following Youth Corrections Officers ("YCOs") and Youth Corrections Supervisors ("YCSs") are also defendants: YCO Cynthia Hubbell, YCS Phyllis Rosete, YCO Earlene Josiah, YCO Leila Holloway, YCO Henry Haina (also an HYCF Investigator), YCO Richard Kohler, former YCO and current YCS Mitch Simao, and YCO Michael Kim.

The defendants challenged the plaintiffs' standing to seek injunctive relief and the court heard argument on the standing issue on November 21, 2005. At the November 21, 2005 hearing, the court ruled that the plaintiffs have standing; the court provides its reasoning for that decision in this order. The court held an evidentiary hearing on the plaintiffs' motion on December 20-21, 2005. At the hearing, both the plaintiffs and the government called witnesses and submitted declarations and exhibits. The court bases its decision on all of the evidence submitted.

II. LEGAL STANDARD

In determining whether to grant a preliminary injunction, the courts in the Ninth Circuit have traditionally considered the following factors:

(1) the likelihood of plaintiff's success on the merits; (2) the possibility of plaintiff s suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief.

United States. v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987) (citation omitted). "To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor." Id. These standards represent two extremes on a continuum in which "the required degree of irreparable harm increases as the probability of success decreases." Id. See also Dymo Indus., Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir.1964) ("The grant of a preliminary injunction is the exercise of a very far reaching power never to be indulged in except in a case clearly warranting it."). In addition, "advancement of the public interest" is one of the "traditional equitable criteria for granting a preliminary injunction." Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir.2001) (citation omitted).

On this motion, plaintiffs seek mandatory relief in addition to a prohibitory injunction, in the form of an order directing defendants to retain a mutually agreeable expert to guide them in reforming practices prohibited by the court. Plaintiffs contend that defendants lack the expertise necessary to prevent further violations of plaintiffs' rights; the plaintiffs also contend that the defendants lack the expertise necessary to select an expert to guide them in reforming their practices. When a party "seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction." Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir.1984). Nevertheless, it is appropriate to issue a mandatory preliminary injunction when both "the facts and law clearly favor the moving party." Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir.1993).

III. ANALYSIS

A. The Plaintiffs Have Satisfied the Article III Case or Controversy Requirement

Article III, section 2 of the United States Constitution confines federal courts to deciding cases or controversies. A plaintiff in a federal case must show that an actual controversy exists at all stages of the case. Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). No case or controversy exists if a plaintiff lacks standing to make the claims asserted. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (stating that standing pertains to a federal court's subject matter jurisdiction).

1. The Plaintiffs Have Standing

Standing is determined based on the facts at the time of filing of the complaint. Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir.2001)....