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Davis v. Abercrombie

United States District Court, District of Hawaii

December 24, 2014

RICHARD KAPELA DAVIS, MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, ELLINGTON KEAWE, KALAI POAHA, TYRONE KAWAELANILUA`OLE NA`OKI GALDONES, Plaintiffs,
v.
NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawaii; TED SAKAI, in his official capacity as the Director of the Hawaii Department of Public Safety; CORRECTIONS CORPORATIONS OF AMERICA, Defendants.

ORDER DENYING PLAINTIFFS’ SECOND MOTION FOR A PROTECTIVE ORDER PROHIBITING RETALIATION AGAINST PLAINTIFFS AND CLASS MEMBERS AND INTIMIDATION OF WITNESSES

Leslie E. Kobayashi, United States District Judge

On November 12, 2014, Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones, Robert A. Holbron, Michael Hughes, Damien Kaahu, James Kane, III, Ellington Keawe, and Kalai K. Poaha (collectively “Plaintiffs”) filed their Second Motion for a Protective Order Prohibiting Retaliation Against Plaintiffs and Class Members and Intimidation of Witnesses(“Motion”). [Dkt. no. 657.] On November 26, 2014, Defendants Ted Sakai, in his official capacity as the Director of the Hawai`i Department of Public Safety (“DPS”), and Corrections Corporation of America (collectively “Defendants”) filed their redacted memorandum in opposition and, on December 2, 2014, Defendants filed their unredacted memorandum in opposition under seal. [Dkt. nos. 664, 670.] Plaintiffs filed their reply on December 10, 2014. [Dkt. no. 669.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Plaintiffs’ Motion is HEREBY DENIED for the reasons set forth below.

BACKGROUND

The factual and procedural background of this case is well known to the parties and this Court. It is not necessary to repeat that background here, because it is sufficiently set forth in this Court’s June 13, 2014 Amended Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron’s Counter-motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act (“6/13/14 Summary Judgment Order”) and in this Court’s July 31, 2014 Order Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment Re: Sovereign Immunity/Damages (“7/31/14 Summary Judgment Order”). [Dkt. nos. 544, 596.[1]

In the instant Motion, Plaintiffs seek a protective order pursuant to Fed.R.Civ.P. 23(d), Fed.R.Civ.P. 26(c), or the All Writs Act, 16 U.S.C. § 1651.[2] [Motion at 2-3.] Specifically, Plaintiffs ask this Court to impose the following:

1. Defendants, their officers, agents, and all those acting in concert with them are ordered to refrain from talking with Plaintiffs and class members about this lawsuit;
2. Defendants, their officers, agents, and all those acting in concert with them are prohibited from taking any action in retaliation, or threatening to take any action in retaliation, against Plaintiffs and members of plaintiffs’ class, including but not limited to disciplinary action, the denial of privileges, or retaliatory searches, on account of [P]laintiffs and members of their class participating, assisting, or volunteering any facts or circumstances in the furtherance of this lawsuit;
3. Defendants, their officers, agents, and all those acting in concert with them are prohibited from taking any action in retaliation against Plaintiffs and members of plaintiffs’ class, or threatening to take any action in retaliation, against Plaintiffs and members of plaintiffs’ class, including but not limited to disciplinary action, the denial of privileges, or retaliatory searches, on account of filing a grievance concerning a request to engage in religious observances at the Saguaro facility.

[Id. at 3-4.]

DISCUSSION

I. Rule 26(c) and the All Writs Act

Rule 26(c)(1) states, in pertinent part:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending - or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .

(Emphasis added.) Based on Plaintiffs’ representations in the instant Motion, they are not seeking relief in response to, or in anticipation of, a request for discovery. Instead, the Motion addresses on-going conditions at Saguaro Correctional Center (“Saguaro”) related to participation in this class action litigation. See, e.g., Mem. in Supp. of Motion at 2 (“there is both a history and high likelihood of unsupervised, unilateral communications with the plaintiff class”); id. (‚ÄúDefendants continue to retaliate against inmates for participating in or ...


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