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Junell Faith Aliviado and Jamiquia v. Shari Kimoto

July 19, 2012

JUNELL FAITH ALIVIADO AND JAMIQUIA GLASS, PLAINTIFFS,
v.
SHARI KIMOTO, MAINLAND BRANCH
COORDINATOR, DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAII, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES; JEANETTE BALTERO, CONTRACT MONITOR, DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAII, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES; TED SAKAI, INTERIM DIRECTOR, DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAII, IN HIS OFFICIAL CAPACITY; AND DOES 1-30, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER (1) DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND (2) DENYING DEFENDANTS' MOTION TO DISMISS FOR INABILITY TO JOIN REQUIRED PARTIES

I. INTRODUCTION.

Plaintiffs Junell Faith Aliviado and Jamiqua Glass allege that Defendants Shari Kimoto, Jeanette Baltero, and Ted Sakai are allegedly interfering with their constitutional right to marry.*fn1 Plaintiffs want to marry State of Hawaii prison inmates now housed, pursuant to a state contract, at the Saguaro Correctional Center in Arizona. The Department of Public Safety for the State of Hawaii ("DPS") requires prisoners to obtain approval to marry. Applications to marry submitted by Plaintiffs' fiances to marry Aliviado and Glass have been repeatedly denied by DPS. Plaintiffs seek damages from Defendants, who are DPS employees, and injunctive relief.

Now before this court are defense motions brought pursuant to Rules 12(b)(1) and 12(b)(7) of the Federal Rules of Civil Procedure. The Rule 12(b)(1) motion argues that Plaintiffs lack standing to assert their claims and that this court consequently lacks subject matter jurisdiction. Defendants contend that Plaintiffs are improperly asserting violations of their fiances' right to marry rather than their own right to marry. The Rule 12(b)(7) motion argues that Plaintiffs' fiances are required parties under Rule 19 of the Federal Rules of Civil Procedure who cannot be joined in this action because they have not exhausted their administrative remedies by filing grievances with DPS relating to the rejection of their applications for approval to marry. Because Plaintiffs are asserting their own rights to marry and because Plaintiffs' fiances are not required parties, the court denies Defendants' motions.

II. LEGAL STANDARDS.

A. Rule 12(b)(1) Motion to Dismiss.

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defense[] by motion:

(1) lack of subject-matter jurisdiction."

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may either attack the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or attack the existence of subject matter jurisdiction in fact. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction---a facial challenge--all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). When the motion to dismiss is a factual attack on subject matter jurisdiction, no presumption of truth attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Defendants say theirs is a factual challenge to jurisdiction.*fn2

B. Rule 12(b)(7) Motion to Dismiss.

Rule 12(b)(7) of the Federal Rules of Civil Procedure provides that an action may be dismissed for failure to join a party under Rule 19 of the Federal Rules of Civil Procedure. To determine whether Rule 19 requires the joinder of additional parties, the court may consider evidence outside the pleadings. McShan v. Sherrill, 283 F.2d 462, 464 (9th Cir. 1960); Walter v. Drayson, Civ. No. 06-00568 SOM/KSC, 2007 WL 641413, at *4 (D. Haw. Feb 26, 2007).

III. FACTUAL BACKGROUND.

Defendants have allegedly prohibited Plaintiffs from marrying their fiances. Plaintiffs are women who are engaged to male inmates held by the State of Hawaii at the Saguaro Correctional Facility in Arizona. Amended Compl. For Damages and Declaratory and Injunctive Relief ¶¶ 21-22, May 29, 2012, ECF No. 9.

Plaintiff Aliviado's fiance has submitted three applications to DPS to marry Aliviado. Id. ¶¶ 46-51. DPS denied all three applications. Id. One application was denied on the ground that DPS believed Aliviado's fiance's incarceration made the fiance "incapable of providing the necessary emotional, financial, and physical support that every marriage needs in order to succeed." Id. ¶ 48. The most recent application was denied because Aliviado has a minor child, her fiance had been convicted of sexually assaulting his own child, and DPS was apparently concerned about the safety of Aliviado's minor child. Id. ¶ 51.

Plaintiff Glass's fiance has also submitted three applications to DPS to marry Glass. Id. ¶¶ 65-69. The first two applications were denied on the ground that Glass's fiance was "incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed." Id. ¶ 65. The last application was denied on the ground that DPS does not want Glass's fiance associating with or being in the company of Glass because Glass herself is a convicted felon. Id. ¶ 69. Glass concedes that she was convicted of three felonies in the 1990s but says she has "turned her life around" and has had no legal trouble since her release from prison in 2000. Id. ¶ 70. According to Defendants, neither Glass's fiance nor Aliviado's fiance has filed a grievance at the prison relating to the denials of their marriage applications.

Under DPS policy, an inmate's marriage application may be denied when "the proposed marriage present[s] a threat to the security or the good government of the institution or ...


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