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Junell Faith Aliviado and Jamiquia Glass v. Shari Kimoto

August 1, 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 GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION.

Plaintiffs Junell Faith Aliviado and Jamiquia 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.

Plaintiffs have moved for an order preliminarily enjoining Defendants from interfering with their right to marry their incarcerated fiances. They argue that they have an overwhelming likelihood of success on their claim that Defendants have violated the Fourteenth Amendment of the United States Constitution by interfering with their fundamental right to marry, and that the continuing violation of their constitutional right to marry is causing them irreparable injury in the form of being denied the emotional, spiritual, and legal benefits of marriage. Plaintiffs also argue that the balance of hardships tips sharply in their favor, as Defendants "would suffer no discernible harm" if a preliminary injunction were granted. Finally, Plaintiffs contend that granting an injunction is in the public interest because it would ensure the protection of constitutional rights. Concluding that all four preliminary injunction factors weigh in favor of granting the requested injunction, the court grants Plaintiffs' motion.

II. FINDINGS OF FACT.

This court held an evidentiary hearing on July 12, 2012, receiving direct testimony through its usual non-jury trial procedure of having direct testimony submitted in declaration form and having witnesses available for live cross-examination and redirect examination. The parties have also stipulated to certain facts.

From Plaintiffs, the court received the declarations of Junell Faith Aliviado, Jamiquia Glass, and Laurie Temple, and excerpts from the deposition of Shari Kimoto. At the hearing, Kimoto was cross-examined by Defendants and provided testimony on redirect examination by Plaintiffs.*fn2

From Defendants, the court received the declaration of Shari Kimoto, with no live cross-examination requested. The court also received various documents as exhibits. Based on the testimony and exhibits received in evidence, the court finds the following facts.

To the extent any finding of fact should more properly be designated a conclusion of law, it should be treated as a conclusion of law. Similarly, to the extent any conclusion of law should more properly be designated a finding of fact, it should be treated as a finding of fact. For ease of reference to particular findings and conclusions in later proceedings, if any, the findings and conclusions are presented in sequential numbered paragraphs.

1. Plaintiffs Junell Faith Aliviado and Jamiquia Glass want to marry prison inmates now held by the State of Hawaii at the Saguaro Correctional Center in Arizona. Stipulated Facts ¶¶ 5, 17, ECF No. 48; Decl. of Junell Faith Aliviado ("Aliviado Decl.") ¶ 2, ECF No. 10-4; Decl. of Jamiquia Glass ("Glass Decl.") ¶ 2, ECF No. 10-7.

2. Plaintiff Jamiquia Glass is engaged to Reginald Pettway. Stipulated Facts ¶ 5. Glass and Pettway have been dating since 2007, approximately two and a half years before Pettway was incarcerated. Id. ¶ 7; Glass Decl. ¶ 2. Glass lives in Mobile, Alabama, and visits Pettway approximately once a month. Stipulated Facts ¶ 6; Glass Decl. ¶ 3. They speak on the phone daily and frequently write to one another. Id.

3. Glass loves Pettway and describes him as her "best friend." Glass Decl. ¶ 4. She has strong religious convictions and wants to marry Pettway for religious and spiritual reasons. See id.

4. Plaintiff Junell Faith Aliviado is engaged to James G. Freitas, Jr. Stipulated Facts ¶ 17. Aliviado and Freitas have been dating for seven years and began their relationship approximately one year before Aliviado was incarcerated. Aliviado Decl. ¶ 2. They speak on the phone nearly every day, sometimes more than once a day. Id. ¶ 3.

5. Aliviado visits Freitas two to three times a year. Stipulated Facts ¶ 18. She last visited him in April 2012 and hopes to visit him again this coming October. Aliviado Decl. ¶ 3. Aliviado and Freitas conduct video visits with one another approximately every other month. Id. They also exchange letters. Id. Aliviado wants to marry Freitas because she feels close to him. Id. ¶ 9. She hopes they can get married when she visits him in October. Id. ¶ 10.

6. Plaintiffs and their fiances meet the legal requirements for marriage. They are over eighteen years old and not married. Stipulated Facts ¶¶ 16, 26. Neither Plaintiff is related to her fiance. Id. Both couples can afford the marriage application fees in Hawaii and Arizona. Id.

7. A State of Hawaii inmate must obtain permission from DPS to marry any individual, including a nonprisoner. Stipulated Facts ¶ 1. An inmate seeking to marry must submit a DPS application that includes a section to be completed by the individual the inmate seeks to marry. Stipulated Facts ¶ 2. Although DPS treats the marriage application as submitted by the inmate, DPS will accept a completed application from the person the inmate seeks to marry, provided the application is complete. Deposition of Shari Kimoto ("Kimoto Dep.") at 42:22-43:20, ECF No. 46-3; Redirect Examination of Shari Kimoto.

8. Once received by DPS, the application is reviewed by a social worker, who makes a recommendation as to whether the application should be granted or denied. Kimoto Dep. at 40:2-18. The recommendation goes to Defendant Kimoto, who determines whether to grant or deny the application. Id. at 40:2-18. Kimoto's decision is reviewed by the Institutions Division Administrator and the Deputy Director for Corrections. Id. at 41:8-42:21. The Deputy Director makes the final determination as to whether the application should be granted or denied. Live Cross-Examination of Shari Kimoto.

9. DPS promulgated its current policy governing inmate marriages on June 8, 2011. Stipulated Facts ¶ 3. That policy, COR.14.13, states that a warden shall consider the following factors in determining whether to grant or deny an inmate's application to marry:

1) Whether or not a legal restriction to marriage exist[s] (i.e. not divorced yet, TRO history that can be verified)

2) Whether or not the proposed marriage presents a threat to the security or the good government of the institution or to the protection of the public.

Declaration of Daniel M. Gluck ("Gluck Decl.") at Ex. 4 (Stipulated Ex. 1) at 1, ECF No. 10-18.

10. The DPS policy regarding visitation, COR.15.01, is similar to COR.14.13. The visitation policy states, "Visitation may be denied if it is determined that a visitor is detrimental to the rehabilitation and/or reintegration of an inmate or there is a threat to the security and/or good government of the facility concerned." Gluck Decl. at Ex. 5 (Stipulated Ex. 10) at 1, ECF No. 10-18.

11. Kimoto is unaware of any standards used by DPS when it applies its marriage policy. Kimoto Dep. at 47:18-23. DPS provides no training to its social workers to determine whether an inmate presents a threat to the security or good government of an institution or to the general public. Id. at 47:24-48:01.

Jamiquia Glass.

12. Glass and Pettway submitted their first marriage application in 2010. Stipulated Facts ¶ 8; Glass Decl. ¶ 5. DPS denied the application by letter from Kimoto, dated October 4, 2010. The letter stated:

As a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed. Records indicate that your parole hearing is April 2016.

We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancee will be detrimental to any future reintegrative efforts. Both husband/wife must work uniformally [sic] on individual and marital issues that come up throughout any successful marriage. This union may be successful overall for both individuals when you are reunited outside of the facility's walls allowing the proper opportunity to work together, develop and establish appropriate relations as necessary.

Glass Decl. at Ex. 1 (Stipulated Ex. 3), ECF No. 10-8.

13. On an unknown date thereafter, Glass and Pettway submitted another marriage application. Stipulated Facts ΒΆ 9. That application was denied by a nearly identical letter from Kimoto, dated May 17, 2011. Id. Kimoto describes the letter as a "form ...


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