United States District Court, D. Hawaii
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
Oki Mollway United States District Judge.
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. 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.
moves for summary judgment with respect to the remaining
claims asserted against her. ECF No. 29. The court grants 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.
SUMMARY JUDGMENT STANDARD.
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).
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.
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
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.”).
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.”
claims to have been held in prison for 73 days more than he
should have been. But his claims against Dydasco are
court incorporates here the factual history underlying
Spears's overdetention claims set forth by the State of
Hawaii's Intermediate Court of Appeals
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
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.
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
was released from custody on April 29, 2001. Spears,
2013 WL 257128 at *2.
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.
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.
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.
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.
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.
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.
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.
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
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). 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
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.
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.
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.
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. 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 ...