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Spears v. State

United States District Court, D. Hawaii

November 8, 2017

EVERETT SPEARS, Plaintiff,
v.
THE STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC SAFETY; TANI DYDASCO; THOMAS L. READ, Defendants.

          ORDER GRANTING DEFENDANT TANI DYDASCO'S MOTION FOR SUMMARY JUDGMENT; ORDER TO SHOW CAUSE WHY ACTION WITH RESPECT TO THOMAS L. READ SHOULD NOT BE DISMISSED

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         Plaintiff Everett Spears asserts that he was held in prison 73 days longer than he should have been. On April 24, 2012, Spears filed the Complaint in this matter, asserting claims under 42 U.S.C. § 1983 and under state law against the State of Hawaii Department of Public Safety and its employees, Tani Dydasco and Thomas L. Read.[1] See ECF No. 1. See ECF No. 1. On May 31, 2012, this court dismissed all of Spears's claims except for the damage claims asserted against Dydasco and Read in their individual capacities. See ECF No. 13.

         Dydasco moves for summary judgment with respect to the remaining claims asserted against her. ECF No. 29. The court grants the motion.

         The court also orders Spears to show cause why claims against Read should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

         II. SUMMARY JUDGMENT STANDARD.

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position concerning whether a material fact is genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials”; or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See Id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

         The burden initially falls on the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

         The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. At least some “‘significant probative evidence tending to support the complaint'” must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134 (“A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 (“There must be enough doubt for a ‘reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.”).

         In adjudicating summary judgment motions, the court must view all evidence and inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id.

         III. BACKGROUND.

         Spears claims to have been held in prison for 73 days more than he should have been. But his claims against Dydasco are misplaced.

         This court incorporates here the factual history underlying Spears's overdetention claims set forth by the State of Hawaii's Intermediate Court of Appeals (“ICA”):

On April 29, 2000, Spears was arrested for burglary in the first degree and violation of order of protection. On May 15, 2000, Plaintiff-Appellee State of Hawai`i (State) charged Spears in Cr. No. 00-1-0206 (Case 1) with five counts. On July 3, 2000, while in custody for Case 1, Spears was indicted on two counts in Cr. No. 00-1-0333 (Case 2), which was unrelated to Case 1.
On November 14, 2000, Spears pleaded no contest to four charges: in Case 1--the reduced charge of criminal trespass in the first degree in violation of Hawaii Revised Statutes (HRS) § 708-813 (Supp. 2011), criminal property damage in the fourth degree in violation of HRS § 708-823 (1993), and harassment in violation of HRS § 711-1106 (Supp. 2008) and, in Case 2-assault in the second degree in violation of HRS § 707-710 (1993).
. . . For Case 1, the Circuit Court sentenced Spears as follows: one-year jail sentence for Count One, thirty-day jail sentence for Count Two, and thirty-day jail sentence for Count Five. For Count One of Case 2, the Circuit Court sentenced Spears to five years probation and one-year jail sentence. The Circuit Court ordered that Spears would receive credit for time served and that all sentences would run concurrently.

State v. Spears, 2013 WL 257128, *1 (Haw. Ct. App. 2013); see also Judgment Guilty Conviction and Probation Sentence in Cases 1 and 2, Jan. 11, 2001, ECF No. 31-8.

         On April 27, 2001, in response to the motion for clarification of Spears's sentence, Judge Joseph E. Cardoza of the state trial court filed a Stipulated Order re: Jail Confinement in both Case 1 and Case 2. In relevant part, it stated, “the Parties and the Court having reviewed the file herein, hereby agree and stipulate that the Defendant shall receive credit for time served since he was taken into custody on April 29, 2000 at 2330 hours, and he shall be released from custody on April 29, 2001, at 2330.” ECF No. 31-16, PageID # 239. It further stated, “You are committed to the custody of the Director of the Department of Public Safety for a period of ONE (1) year of jail confinement in [Case 2] Count 1, credit for time served nunc pro tunc to April 29, 2000 at 2330 hours.” Id.

         Spears was released from custody on April 29, 2001. Spears, 2013 WL 257128 at *2.

         On May 8, 2001, Judge Cardoza filed an Amended Stipulated Order re: Jail Confinement. In addition to stating that Spears was to receive credit for time served since he was taken into custody on April 29, 2001, it modified the original stipulated order by stating:

You are committed to the custody of the Director of the Department of Public Safety for a period of ONE (1) year of jail confinement in [Case 2] Count 1 [credit for time served nunc pro tunc to April 29, 2000 at 2330 hours], and for a period of ONE (1) year of jail confinement in [Case 1] Count 1; 30 days in Counts 2 and 5; all terms to run concurrently with each count and each criminal number. Mittimus to issue forthwith with credit for time served.

ECF No. 31-3, PageID # 202.

         At the time the state trial judge filed the stipulated orders with respect to Spears's presentence credits, the Hawaii Supreme Court had already decided State v. March, 94 Haw. 250, 11 P.3d 1094 (2000). Noting that “[p]resentence incarceration credit is governed by statute, see HRS § 706-671 (1993), ” March held, “a sentence that credits Defendant with the time served for an unrelated offense is illegal because the sentencing court is not authorized by chapter 706 to grant such a credit.” Id. at 253, 255, 11 P.3d at 1097, 1099. There is no dispute that Case 1 and Case 2 were unrelated. Thus, the stipulated orders running presentence credits concurrently did not comport with March and gave Spears 73 days of credit in Case 2 that March did not countenance.

         On February 18, 2003, the State of Hawaii filed a motion seeking an arrest warrant based on Spears's alleged violations of conditions of probation with respect to Case 2. Spears, 2013 WL 257128 at *2. The arrest warrant was not served until May 16, 2006, which was more than three years later. Id.

         Spears admitted to having violated the terms and conditions of probation. Probation was revoked, and Spears was resentenced in Case 2 to 5 years of imprisonment, with credit for time served. Id.; see also Order of Resentencing Revocation of Probation in Case 2, July 13, 2006, ECF No. 31-9.

         On or about July 3, 2008, Spears wrote to Scott Jibo, the Hawaii Department of Public Safety Contract Monitor, claiming that Spears's calculated release date of July 24, 2010, was incorrect. Spears said that he should have received more credit for time served and that his release date should be May 16, 2010. See ECF No. 31-10, PageID # 223. Spears may have himself miscalculated. If Spears was relying on the earlier stipulated orders and seeking 73 days of credit, his release date would have been May 12, 2010.

         On or about September 5, 2008, Jeanette Baltero, another Contract Monitor for the Hawaii Department of Public Safety, responded to Spears's letter of July 3, 2008. Baltero stated that Spears had received a total of 352 days of credit such that his maximum release date was July 24, 2010. See ECF No. 31-11, PageID # 224. The Record of Presentence Credits attached to that letter indicates that Spears was given 292 days credit for the period from July 12, 2000, to April 29, 2001, which is 73 days less than 365 days. Id., PageID # 225.

         On or about November 28, 2008, Raynette Ruiz again calculated Spears's maximum release date as July 24, 2010. ECF No. 30-8, PageID # 157; Sentence Calculation Form, ECF No. 31-12, PageID # 226.

         Apparently, Spears asked the Department of Public Safety to review the calculation of the release date of July 24, 2010. See Defendant Tani Dydasco's Answers to Request for Answers to Interrogatories Nos. 11 and 13, ECF No. 108-4, PageID #s 766-67. Dydasco says that, in December 2009, after the Department of Public Safety received Spears's request, she audited Spears's file, verifying that his release date should have been July 24, 2010. Dydasco wrote her name and initials on Ruiz's Sentencing Calculation Form. See id.; Declaration of Tani Dydasco ¶ 9, ECF No. 30-8, PageID # 157; Sentence Calculation Form, ECF No. 31-12, PageID # 226. Nothing in the record indicates that Dydasco had calculated Spears's release date before December 2009. The Department of Public Safety therefore had been telling Spears that his release date would be July 24, 2010, for well over a year before Dydasco confirmed that release date.

         On January 25, 2010, the state trial court received a letter from Spears that asked the court to clarify his presentence credit for Case 2. Spears, 2013 WL 257128 at *2; January 11, 2010, letter from Everett Spears to Judge S. Raffetto, available as pages 293-94 of 792 of Record on Appeal (“ROA”) (filed Oct. 10, 2010) through https://jimspss1.courts.state.hi.us/JEFS/ (click on “View Documents and then input 30690 under “Case Search”) (last visited November 3, 2017).[2] On January 26, 2010, the state trial court provided notice to the State of Hawaii of the court's receipt of the letter; the state court otherwise took no action with respect to the letter. See Notice of Ex Parte Communication, ROA page 677 of 792.

         On February 5, 2010, Spears wrote to the Office of the Clerk, Second Judicial Circuit, asking the clerk to correct the presentence information provided to the Department of Public Safety, including the credit at issue in this case. February 5, 2010, letter from Everett Spears to Office of the Clerk, ROA page 685 of 792.

         On March 1, 2010, Spears filed a Motion to Withdraw Guilty Plea in both Case 1 and Case 2, arguing that the State of Hawaii had not honored his plea agreement. Spears, 2013 WL 257128 at *2. Spears argued that he was being deprived of 73 days of pretrial credit in Case 2. Motion to Withdraw Guilty Plea, ROA pages 682 of 792.

         In early 2010, Spears also wrote to the Department of Public Safety, arguing that his release date should be in May 2010. On March 4, 2010, Dydasco and Read responded to that letter. The response rejected Spears's claim for the additional 73 days of credit. See ECF No. 31-15, PageID # 234. The letter to Spears noted that, under section 706-671 of Hawaii Revised Statutes and case law interpreting it, a defendant had no right to credit for time spent in prison between arrest and sentencing as a consequence of a different charge or conviction. Id. The letter stated:

Your presentence credit for [Case 2] at the time of your 11/1/01 sentencing was computed as 185 days. When you were released on 4/29/01, you had not served the full 1 year sentence that was imposed for the charge in that case. Your expected end date for that case was 7/9/01. On 4/27/01, a Stipulated Order re Jail Confinement was filed, in which the Judge granted credit for [Case 2] . . . nunc pro tunc to 4/29/00. . . . Now that you have been re-sentenced to an open term in [Case 2], it is the Department of Public Safety's (PSD) responsibility to compute your pre-sentence credit. PSD is bound to follow HRS§706-671, which requires PSD to compute all detention that follows the arrest for the charge for which the defendant is sentenced. In review of our records, we have determined that you had not served the full 1 year in 2001 for [Case 2]. . . . Pre-sentence credit is statutory and cannot be nunc pro tunc. We have drafted a letter to the Judge, requesting guidance in regards to the stipulated order that was filed on 4/27/01. Until we receive documentation, or an order to the contrary, your total pre-sentence credit for [Case 2] will remain at 352 days, with a maximum expiration date of 7/24/2010.

Id., PageID # 234-35.

         On March 4, 2010, Read sent Judge Cardoza a separate letter regarding the Stipulated Order re: Jail Confinement that had been filed on April 27, 2001.[3] The letter noted that, for Case 2, the Department of Public Safety could only document 292 days of credit, not the 365 days that Spears was claiming, a difference of 73 days:

The stipulated order was interpreted to grant him credit that he received for another charge. The Department of Public Safety (PSD) is bound to follow H.R.S. §706-671, which requires PSD to compute all detention that follows the arrest for the charge for which the defendant is sentenced. Pre-sentence credit is awarded pursuant to statutory authority, PSD policy, and Hawaii case law, and cannot be awarded for time served for another case, or for time not in custody. Based on the foregoing, PSD is not inclined to grant the defendant credit [for the 73 days] on this 2006 re-sentencing. To do so would be directly violative of statute, policy and case law, specifically State of Hawaii v. Yamasaki, 94 Haw. 250, (2000).
[A]bsent any guidance or an order to the contrary, PSD staff will follow both its own policy and state statute by applying the presentence ...

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