Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dawson v. Wagatsuma

United States District Court, D. Hawaii

March 9, 2018

DUANE DAWSON, Plaintiff,


          Leslie E. Kobayashi, United States District Judge

         This case came on for a bench trial on August 8, 2017. Plaintiff Duane F. Dawson (“Plaintiff” or “Dawson”) appeared pro se by telephone conference, and Defendants Harry Victorino and John Miyajima, in their individual capacities (“Defendants”), were represented by Kendall Moser, Esq. The Court, having considered the pleadings, declarations and evidence admitted into evidence, the testimony at trial, and the arguments of counsel, makes the following Findings of Fact and Conclusions of Law and Decision pursuant to Fed.R.Civ.P. 52. The Court rules that Defendants are entitled to judgment on all of Plaintiff's claims. Any finding of fact that should more properly be deemed a conclusion of law and any conclusion of law that should more properly be deemed a finding of fact shall be so construed.

         In addition, Plaintiff's Motion for Judgment in Plaintiff's Favor (“Plaintiff's Motion”), [filed 8/4/17 (dkt. no. 69), ] and Defendant's oral motion for judgment as a matter of law, pursuant to Rule 52(c) (“Oral Rule 52(c) Motion”), are denied; and Defendant's Motion for Judgment on Partial Findings (“Rule 52(c) Motion”), [filed 8/15/2017 (dkt. no. 72), ] is granted.[1]


         Plaintiff filed his Prisoner Civil Rights Complaint (“Complaint”) on December 28, 2015. [Dkt. no. 1.] Plaintiff asserts claims arising from alleged events while he was incarcerated at the Kauai Community Correctional Center (“KCCC”) from July 25, 2015 through the filing of the Complaint. Plaintiff alleges the following claims under 42 U.S.C. § 1983: Defendant Harry Victorino, a Lieutenant at KCCC (“Victorino”), acting under the authority of Defendant Neal Wagatsuma, the Warden at KCCC (“Wagatsuma”), violated Plaintiff's constitutional right to freely practice his religion (“Count I”); Defendant Jon Miyajima, a Correctional Supervisor at KCCC (“Miyajima”), acting under Wagatsuma's authority, retaliated against Plaintiff for grieving the violation of his right to practice his religion (“Count II”); and all of the defendants violated his constitutional right to equal treatment by denying him certain privileges because of his religion (“Count III”).[2] Plaintiff named all of the defendants in their individual and official capacities. Plaintiff also sought injunctive relief.

         This Court issued a Screening and Service Order on February 4, 2016 (“Screening Order”). [Dkt. no. 8.] The Screening Order allowed Plaintiff's claims against Victorino and Miyajima, in their individual capacities, to proceed. Plaintiff's claims against all of the defendants in their official capacities, Plaintiff's claims against Wagatsuma in his individual capacity, and Plaintiff's claim for injunctive relief were dismissed.

         Defendants filed their Answer on May 20, 2016. [Dkt. no. 20.] Plaintiff did not file an amended complaint, and Defendants did not file any dispositive motions. Thus, the remaining portions of Counts I, II, and III proceeded to trial. Specifically, those claims allege:

Count I - Victorino “willfully, sadistically & maliciously denied Plaintiff's free exercise to religion by forcing Plaintiff to denounce his Native Hawaiian Religious Practice to participate in the uncertified Module Contract Program a christian [sic] based program”; [Complaint at pg. 5;]
Count II - Miyajima “spiteful [sic] and malevolently retaliated against Plaintiff for filing grievances based on the unfair treatment received in regards to the denied opportunity to participate in the Module Contract Program”;[3] [id. at pg. 6;] and
Count III - Plaintiff “has been deliberately denied equal treatment to regularly” in certain privileges “like other selected individuals” in the Module Contract Program, which Plaintiff alleges he cannot participate in as a practitioner of the Native Hawaiian Religion, [id. at pg. 7].

         At trial, Plaintiff testified in support of his case. He did not present any other witnesses. After Plaintiff rested his case, Defendants' counsel made the Oral Rule 52(c) Motion, which was taken under advisement. [Trans. of 8/8/17 Trial (“Trial Trans.”), filed 8/15/17 (dkt. no. 71), at 47-48.] Defendants presented the Declaration of Harry Victorino (“Victorino Declaration”) and the Declaration of Jon Miyajima (“Miyajima Declaration”) in lieu of direct testimony. Defendants also gave live testimony at trial. In addition, Exhibits D1 through D12 were received into evidence. [Id. at 64, 107.] After Defendants rested their case, they orally renewed their motion for judgment as a matter of law. The renewed oral motion was taken under advisement, and Defendants were directed to file a written motion. [Id. at 107-09.] Defendants did so, and the Rule 52(c) Motion supersedes their renewed oral motion.

         Plaintiff filed his written closing argument on August 31, 2017. [Dkt. no. 74.] Defendants filed their Closing Argument Brief on September 5, 2017. [Dkt. no. 75.]


         The Court makes the following findings of fact based on the declarations, trial testimony, and exhibits submitted by the parties.

         1. Plaintiff has been incarcerated by the State of Hawai`i (“the State”) at KCCC and other facilities since the mid-1990s. [Miyajima Decl. at ¶ 8.]

         2. During the period at issue in the Complaint (July 25, 2015 to December 28, 2015), both Defendants were employed at KCCC. Miyjima was a Corrections Supervisor I, and Victorino was an Adult Corrections Officer (“ACO”) V (Lieutenant). [Id. at ¶¶ 4-5; Victorino Decl. at ¶ 4.]

         3. Victorino began working at KCCC on February 3, 1997 and was still working there at the time of trial. [Victorino Decl. at ¶¶ 3-4.] Miyajima began working at KCCC in April 1997 and continued working there until his retirement on December 31, 2015. [Miyajima Decl. at ¶¶ 3-4.]

         4. Miyajima's duties and responsibilities as a Corrections Supervisor I included: “ensuring that inmates are classified correctly; being responsible for the movement of inmates between State of Hawaii correctional facilities; . . . and serving as the Inmate Grievance Officer at KCCC.” [Id. at ¶ 6.]

         A. The Module Contract Program

         5. KCCC has a Module Contract Program (“Module Program” or “Program”), which has been in place since the 1990s. [Victorino Decl. at ¶ 14.] The State Department of Public Safety (“DPS”) uses the Module Program as a rehabilitation tool. The Module Program “is part of a plan to provide an environment that helps inmates successfully re-enter the community through a sequential phasing process.” [Id. at ¶ 15.]

         6. Victorino's testimony on these matters is supported by Exhibit D-10, titled “Module B - Changing Direction” and dated October 1998 (“Module Program 1998 Manual”). See Module Program 1998 Manual at Chap. 1, § C.[4]

         7. Every KCCC inmate who enters the modules has the opportunity to participate in the Module Program. [Exh. D-9 (Module Program Packet - Time to Change Direction!, dated 6/16/15 (Revised) (“Module Program Packet”)) at 5.[5]

         8. The Module Program has a Pre-phase level and subsequent levels for Phase 1, 2, and 3. [Id.] Inmates who wish to enter the Module Program must submit a written request, and it must be approved. When an inmate is admitted into the Module Program, he or she enters as a Pre-phase/Phase 1 resident. [Victorino Decl. at ¶ 14.]

         9. The inmates at the Pre-phase and Phase 1 level have no additional privileges, and the inmates in the Phase 3 level have the “maximum amount of privileges allowed while in the module.” [Module Program Packet at 5.] For example, Phase 2 and Phase 3 inmates are allowed to utilize the dayroom areas. Inmates who achieve Phase 3 may also be considered for the Lifetime Stand (“LTS”) Program, if they have an appropriate security classification. [Id.] The LTS Program is conducted outside of the modules. [Trial Trans. at 59.]

         10. Other testimony was presented regarding the LTS Program, but it is not addressed in the Findings of Fact because it is not relevant to Plaintiff's claims at trial.

         11. Module Program participants “who refuse to follow Program guidelines and facility rules, will be housed in pre phase rooms, and will only be allowed out of their rooms for meals, recreation, showers, and designated out of cell times.” [Module Program Packet at 5.] Further, “[i]f these inmates and/or their actions/conduct become detrimental to the module program and/or facility guidelines, ” they may be subjected to disciplinary action. [Id.]

         12. As of July 21, 2015, Plaintiff had been in the Module Program Pre-phase room for Module B for approximately ten days and had been engaging in “Program recreation, popcorn or cook out nights, videos, etc.” [Victorino Decl. at ¶ 16.] On two other occassions, Plaintiff participated in the Module Program while he was housed in Module A, but Plaintiff removed himself from the Program because he did not want to comply with the applicable rules. [Id. at ¶ 18.]

         Plaintiff's Testimony

         13. Plaintiff testified that, on July 21, Victorino spoke with inmate Joe Ibana (“Ibana”), and Ibana informed Victorino that Plaintiff was not reading the Bible. Plaintiff testified that, for “a couple days” prior to July 21, he had been stepping out of the room when the Program participants started their Bible studies. [Trial Trans. at 21.] According to Plaintiff, after Ibana informed Victorino Plaintiff was not reading the Bible, Victorino shut down the Pre-phase program. [Id.] Further, after the Pre-phase program was closed, all of the other Pre-phase participants were eventually allowed into the Module Program, except for Plaintiff. [Id. at 36.]

         14. Plaintiff has asserted Victorino is the Program Administrator of the Module Program. [Complaint at pg. 5.] Plaintiff also asserted at trial that the Module Program is “considered Lieutenant Victorino's program, ” but Victorino denied this. [Trial Trans. at 83.]

         15. Plaintiff testified the Module Program is a Christian-based program that requires daily Christian activities, including Bible study, prayer to Jesus, and watching Christian-based television programs. Plaintiff asserts that, because he is a practitioner of the Native Hawaiian Religion, he was not able to join or participate in the Program.[6] [Id. at 22, 25.] Plaintiff testified that, to the present day, he cannot gain admission into the Module Program unless he reads the Bible. [Id. at 30.]

         16. According to Plaintiff, inmates of other religions, including Buddhists, are not granted admission into the Module Program. [Id.]

         17. According to Plaintiff, Victorino said Plaintiff's participation in the Module Program was required for Plaintiff to be able to attend his father's funeral. [Id. at 21.] Plaintiff did not want to be in the Module Program because it was Christian-based, but he participated so that he could attend his father's funeral. He had not attempted to participate in the Module Program for years prior to his July 2015 participation in the Program. [Id. at 27-28.]

         18. Plaintiff was not able to attend his father's funeral, which took place two days after Plaintiff was transferred to Halawa. [Id. at 32-33.]

         19. At trial, Plaintiff did not present any witnesses or exhibits supporting his position that the Module Program is a Christian-based program or that he was required to denounce his Native Hawaiian Religion as a condition of his pariticipation in the Program. Plaintiff's position relies solely on his testimony that participation in Christian activities was a requirement of the Module Program.

         20. Plaintiff testified that only inmates in the Module Program get “weekend recreation, ” while inmates who are not in the Program “are only allowed fresh air rec.” [Id. at 38.] He asserts this is supported by the Log Book, i.e. Exhibit D-12. [Id.]

         21. Plaintiff testified that inmates in the Module Program are allowed to play basketball, lift weights, and have occasional cookouts. They are also allowed items that non-Program inmates do not have access to, including radios, chairs, DVDs, water jugs, and additional food, as well as certain types of food that non-Program inmates cannot have. Further, they are allowed access to areas that non-Program inmates are not allowed to enter. [Id. at 39-40.]

         22. Plaintiff testified about other issues related to the Program, including that: the Module Program improperly co-mingled pre-trial inmates and inmates who were already serving a sentence; KCCC improperly allows Module Program inmates to supervise inmates who are not in the Program; and the Module Program jeopardizes the security of the facility. Those portions of Plaintiff's testimony are not discussed in these Findings of Fact because they are not relevant to Plaintiffs' claims at trial.

         Defendants' Testimony and Evidence

         23. According to Victorino, he “had very little involvement with the Module Contract Program” in 2015 because he was conducting multiple, concurrent, facility investigations. [Victorino Decl. at ¶ 17.]

         24. In his capacity as the Chief of Security liaison, Victorino provides oversight for the Module Program and facilitates its operation. He does not have the authority to grant or take away privileges from Program inmates (or from non-Program inmates), although he can make recommendations. Further, Victorino does not make policy. [Id. at ¶ 19.]

         25. Although participation in most Module Program activities is desired, all that is required for acceptance and continuation in the Program “is for an inmate to display a willingness to make a positive change, go through the selection process, and progressively work towards redirection.” [Id. at ¶ 20.] Victorino also testified inmates may opt out of activities offered within the Module Program. [Id.]

         26. According to Victorino, inmates in the Module Program “are allowed to practice, or not, whatever faith they choose.” [Id.]

         27. Victorino testified that, on July 21, 2015, Module Program Sergeant Mark Fujiuchi (“Fujiuchi”) closed the Module B Module Program Pre-phase room (B6) because the inmates were non-compliant. [Id. at ¶ 16.] Victorino agreed with the closing of the Pre-phase room, but it was Fujiuchi who made the decision. Because of the closure of the Pre-phase room, Plaintiff and the other inmates in the Pre-phase room were removed from the Module Program. As a result, Plaintiff was assigned back to regular housing. The room closure and Plaintiff's reassignment were “due to the inmates' non-compliance [and] had nothing to do with religion.” [Id. at ¶ 18.]

         28. Victorino's testimony on these issues is supported by: Exhibit D-6, a Module Program Memorandum, dated July 21, 2015 to Chief of Security (“COS”) Lewis Lindsey (“Lindsey”), Wagatsuma, and others, from Fujiuchi, the ACO-IV Module Compliance Sergeant (“7/21/15 Memo”); and Exhibit D-7, a Supplemental Incident Report, dated July 21, 2015, to Lindsey and Wagatsuma, from Fujiuchi regarding an incident that occurred after the closing of the Module B Pre-phase room (“7/21/15 Incident Report”).

         29. The 7/21/15 Memo states, as of that date, “the Module Program Pre-phase has been shut down until further notice. Module B-Bedroom 6 is regular housing.” [Exh. D-6.]

         30. The 7/21/15 Incident Report's synopsis states Plaintiff “stopped operations by threatening to flood Module B-Bedroom 6 and disrupted facility operations for 1 hour.” [Exh. D-7.]

         However, the report does not describe the flooding threat. The report states:

Inmate DAWSON, D. was upset because the Preprogram room in Module B was shut down. DAWSON, D. stated that he was really trying and that he didn't understand why they got shutdown. He was venting because according to the Warden if he was a participant in the Module Program he would have been approved to go his father's funeral. . . . He (DAWSON) was exhibiting the poor behavior that got that room shutdown. His actions just reinforced the closing of the room. They were ultimately closed down due to non-compliance to Program rules and for having negative behaviors.

[Id. (emphases in original).]

         31. Plaintiff was allowed to “rant and rave for an hour about how wrong he was being treated.” [Id.] During, this time, Plaintiff “referenced going to the ‘Hole' and Halawa.” [Id.] Fujiuchi ultimately determined Plaintiff did not pose an immediate threat and order Plaintiff be returned to Bedroom 6. However, the 7/21/15 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.