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Tyrone K. Galdones, #A0211270 v. Dep't of Public Safety

November 29, 2012

TYRONE K. GALDONES, #A0211270, PLAINTIFF,
v.
DEP'T OF PUBLIC SAFETY, SHARI KIMOTO, TODD THOMAS, JODY BRADLEY, BEN GRIEGO, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER DENYING MOTION FOR REMAND; GRANTING MOTION TO SCREEN COMPLAINT; AND DISMISSING ACTION

Defendant the Hawaii Department of Public Safety ("DPS") initiated this action by filing a Notice of Removal in this court pursuant to 28 U.S.C. § 1441(c). ECF #1. Plaintiff Tyrone K. Galdones is a Hawaii prisoner incarcerated at the Saguaro Correctional Center (SCC), located in Eloy, Arizona. Before the court is Defendants' Motion to Screen Complaint [and Stay Proceedings], ECF #9, and Galdones's Opposition to Removal ("Motion to Remand"), ECF #10.

Galdones's Motion for Remand is DENIED and Defendants' Motion to Screen Complaint [and Stay Proceedings] is GRANTED. For the following reasons, the Complaint and action are DISMISSED without prejudice.*fn1

I. BACKGROUND

A. Procedural History

Galdones, who is proceeding pro se, commenced this action in the state circuit court on September 26, 2012, as a Nonconforming Petition for Post-conviction Relief under Hawaii Rules of Penal Procedure 40(c)(2)(3). Galdones alleges that SCC prison officials in Arizona violated his First and Fourteenth Amendment rights to religious freedom, retaliated against him for exercising those rights, and denied him due process at a disciplinary hearing, He further alleges that a DPS official in Hawaii failed to act when notified of these alleged deprivations. See Petition, Ex. A, ECF #1-2.

The state circuit court found that Galdones failed to assert a basis for post-conviction relief under Rule 40, because he "alleges neither illegality of judgment nor illegality of custody or restraint, but alleges a civil rights action or some other cause of action." Ex. B, ECF #1-3, PageID #14; see also, Haw. R. Penal P. 40(c)(3).*fn2 The state court therefore ordered that the action be processed as a civil proceeding. Defendants timely removed the action. See ECF #1. Galdones opposes removal. ECF #10.

B. Galdones's Pleading

Galdones names SCC Warden Todd Thomas, SCC Assistant

Wardens Jody Bradley and Ben Griego, and DPS Mainland Administrator Shari Kimoto as Defendants. Galdones alleges that, on April 25, 2012, he was practicing his native Hawaiian religion through chanting and meditation during inmate head count. He claims that three SCC guards disrupted his chanting, and on orders of Warden Thomas, placed him in segregation. Galdones claims that Assistant Warden Griego "manufactured charges" in a disciplinary report regarding this incident. See Complt. ECF #1-2, PageID #7-9.

Galdones met with Disciplinary Hearing Officer Lieutenant Holley on May 15, 2012. He claims that he was not allowed to call witnesses or informed of the charges against him, but that Holley nonetheless found him guilty "for practicing [his] religion, . . . cultural and heritage beliefs as a Hawaiian." Complt. ECF #1-2 PageID #8 ¶3. Galdones appealed this disciplinary decision two days later, on May 17, 2012, requested a visit from a native Hawaiian spiritual advisor, and requested informal and formal grievances forms from Grievance Officer Juan Valenzuela. Id., ¶6.

On May 31, 2012, Galdones received Warden Thomas's May 21, 2012, denial of his disciplinary appeal. Officer Valenzuela gave Galdones grievance forms on or about June 6, 2012. Galdones claims these delays impacted his ability to timely grieve his claims. Galdones attempted to make copies of his grievances on June 11, 2012, but did not receive those copies until June 18, 2012, allegedly delaying the grievance process further. Galdones claims these delays are evidence of a conspiracy between Warden Thomas and the SCC librarians (who are not named), to violate his right to due process.

Galdones claims that, on June 20, 2012, Assistant Warden Bradley told him that he was not allowed to practice his own "religious protocols," because Defendant Kimoto had informed SCC officials that they must comply with DPS native Hawaiian cultural advisor Ka'iana Haili's academic curriculum. Galdones complains that this is inconsistent with his native Hawaiian religious beliefs.

On June 21, 2012, Galdones was discharged from segregation and rehoused in an upper-bunk cell, despite allegedly having a medical note for a lower bunk. Galdones was rehoused to general population five days later, but was still denied a lower bunk. Galdones claims that this was done in retaliation for practicing his native Hawaiian religion.

Galdones claims that, on June 27, 2012, Assistant Warden Griego threatened him and others with disciplinary segregation if they pursued a lawsuit based on the alleged deprivation of their rights to practice their native Hawaiian religion.

Galdones claims that, on July 9, 2012, SCC Captain Sigman threatened him for having his hair braided "in a traditional Hawaiian cultural fashion," allegedly at Assistant Warden Griego's direction. Galdones says that SCC has no policy prohibiting braids; he does not say he was disciplined for wearing braids, however. Galdones says that, on July 11, 2011, his approved hand drawn native Hawaiian religious certificates were confiscated, suggesting this was done at Assistant Warden Griego's direction. Galdones also complains that SCC Hawaiian school principal Sell accused him of being in possession of a book that was not logged out to him, and later charged him for the book.

Galdones alleges that Kimoto, Thomas, Griego, and Bradley violated his rights under the First and Fourteenth Amendments to the United States Constitution, article I, sections 4, 5, 20, and 22, article IX section 9, and article X section 4 of the Hawaii Constitution, and other state laws. He seeks injunctive, declaratory, and monetary relief.

C. Davis v. Corr. Corp. of America, No. 1:11-cv-00144 LEK/BMK Galdones is also a represented plaintiff in Davis, et al., v. Corr. Corp. of America, et al., No. 1:11-cv-00144 LEK/BMK, an action that was removed from state court on March 8, 2011. In that suit, plaintiffs ("the Davis Plaintiffs") are represented by attorneys from the Native Hawaiian Legal Corporation ("NHLC") on a pro bono basis. The Davis Plaintiffs assert that the Hawaii Governor, the DPS Director, and the Corrections Corporation of America ("CCA") ("the Davis Defendants"), in their official capacities, are enforcing a policy, or engaging in a practice, that prevents the Davis Plaintiffs from practicing their native Hawaiian religion, and that gives preference to inmates who practice other religions. The Davis Plaintiffs allege that this policy or practice violates their rights under the First and Fourteenth Amendments and article I, sections 4 and 5, and article XII, section 7 of the Hawaii Constitution. They seek injunctive, declaratory, and monetary relief.

On July 5, 2012, more than a year after removal and after the date for adding parties or claims had passed, the Davis Plaintiffs moved to file a supplemental Complaint, adding Galdones as a party-plaintiff and proposed class representative. See Mot. to File Supplemental Complt., ECF #110. The proposed supplemental Complaint alleged substantially similar First and Fourteenth Amendment claims against the Davis Defendants regarding the denial of Galdones's right to exercise his native Hawaiian religion, and added claims alleging that Galdones was disciplined in retaliation for exercising his rights to petition the court and practice his religion under the First Amendment. The supplemental Complaint alleged no due process claims. The supplemental Complaint named SCC Warden Todd Thomas and SCC Assistant Warden Ben Griego as new defendants; it raised no claims against Shari Kimoto or Jody Bradley.

The Davis Defendants opposed the Motion, arguing, inter alia, that Galdones' retaliation claims were separate and distinct from those alleged in Davis, that the court lacked personal jurisdiction over Thomas and Griego, and that allowing the addition of Griego and Thomas as defendants would contravene one of the key factors behind the court's earlier decision denying the Davis Defendants' motion to change venue to Arizona: the absence of any CCA or SCC defendant who resided in Arizona. See Defs.' Opp'n, ECF #116.

On July 31, 2012, the court heard the Davis Plaintiffs' Motion to Supplement Complaint.*fn3 ECF #22. On August 13, 2012, the court granted leave to file the supplemental Complaint naming Galdones and including Galdones's substantially similar claims against CCA, DPS, and Governor Abercrombie. See Order Granting in Part Pls.' Motion for Leave to File a Supplemental Complt., ECF #136. The magistrate judge rejected the supplemental Complaint insofar as it sought to add Galdones's new retaliation claims and Thomas and Griego as defendants. The magistrate judge concluded that adding these new claims that occurred long after the original complaint was filed, and adding new individual capacity defendants residing in Arizona would substantially change the character of the proposed class action and contravene the court's earlier order denying a change of venue. The court explained that Galdones could bring his new retaliation claims, that admittedly occurred in Arizona and named new individual capacity defendants who reside in Arizona, in Arizona. Approximately one month later, Galdones filed the instant Complaint in the Hawaii state court.

II. THE PARTIES' MOTIONS

A. Galdones' Motion in Opposition ...


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