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Gordon v. Maesaka-Hirata

Supreme Court of Hawaii

November 2, 2018

MUKADIN GORDON, Petitioner/Plaintiff-Appellant,
JODIE F. MAESAKA-HIRATA; PETRA CHO; and STATE OF HAWAI'I, Respondents/Defendants-Appellees.


          Eric A. Seitz (Della A. Belatti, Bronson Avila, and Sarah R. Devine with him on the briefs) for petitioner

          Kendall J. Moser (Russell A. Suzuki and Caron M. Inagaki with him on the briefs) for respondents



          McKENNA, J.

         I. Introduction

         Pretrial detainees - individuals who have been arrested and charged, but remain in jail while awaiting trial - have a due process right to be free from punishment until convicted of a crime. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Mukadin Gordon ("Gordon") filed suit because he was held in solitary confinement by State of Hawai'i ("State") prison officials for more than nine months following his arrest in August 2010. Gordon requested monetary damages pursuant to Title 42, Section 1983 of the United States Code ("U.S.C.") and state tort law. Following a jury-waived trial, the Circuit Court of the First Circuit ("circuit court")[1] entered judgment in favor of the defendants on all claims. The Intermediate Court of Appeals ("ICA") affirmed.

         We hold that Gordon's placement in solitary confinement for more than nine months constituted unlawful pretrial punishment in violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 5 of the Constitution of the State of Hawai'i. We also hold, however, that although the circuit court applied an incorrect standard for federal qualified immunity, defendant Petra Cho ("Cho") is not liable for damages under 42 U.S.C. § 1983 for the federal constitutional violation because the basis of her decision to retain Gordon in pretrial solitary confinement did not violate a clearly established constitutional right of which every reasonable official would have known. We also hold the circuit court did not err by concluding Cho has no negligence liability based on state qualified immunity principles. In addition, as the State has not waived sovereign immunity for damages claims based on state constitutional violations, the State is not liable for damages for the state constitutional violation.

         We therefore overrule the ICA's memorandum opinion insofar as it conflicts with our conclusions herein, but affirm the ICA's judgment on appeal in favor of the defendants.

         II. Background

         A. Circuit Court Pretrial Proceedings

         Gordon filed a civil complaint arising from his pretrial detention at the Oahu Community Correctional Center ("OCCC") and the Halawa Correctional Facility ("HCF"). He alleged he was incorrectly classified as a maximum security pretrial detainee and placed in solitary confinement for a total of nine months and twenty-two days between 2010 and 2011.[2]

         In this opinion, we address only the claims asserted by Gordon in his amended complaint against Cho and the State (collectively, "the Defendants") that he continues to assert on appeal.[3] Through his first cause of action, Gordon alleges a 42 U.S.C. § 1983 claim for violation of his right to due process under the Fourteenth Amendment to the United States Constitution against Cho; he also alleges a violation of his right to due process under Article I, Section 5 of the Constitution of the State of Hawai'i against the State. Through his fourth cause of action, he alleges negligence against Cho. Gordon seeks general, special, and punitive damages, attorneys' fees and costs, and such other relief as deemed appropriate.

         B. Circuit Court Trial

         The circuit court conducted a two-day jury-waived/bench trial that decided Gordon's federal 42 U.S.C. § 1983 claim against Cho in her individual capacity and his state negligence claim against Cho.

         1. The circuit court's findings of fact

         The circuit court found the following facts relevant to the issues on certiorari.

         a. Gordon's pretrial detention

         On August 22, 2010, Gordon was arrested on charges of seven counts of sexual assault in the first degree, one count of attempted sexual assault in the first degree, four counts of sexual assault in the third degree, one count of promoting prostitution, and one count of kidnapping in the first degree. From August 26, 2010, to June 16, 2011, Gordon was held in maximum security custody at OCCC and HCF while he awaited trial on his criminal case.

         b. Initial custody classification and conditions

         On August 26, 2010, Department of Public Safety ("DPS") employee Faatuila Pula ("Pula") conducted Gordon's initial intake interview at OCCC and filled out a Jail Initial Custody Instrument ("Initial Custody Instrument") to determine his custody status. This document was completed using information from the Hawai'i Criminal Justice Inquiry System, the National Crime Information Center, and a brief interview with Gordon.[4] After completing the Initial Custody Instrument, Pula determined that Gordon had a total of nineteen "points" and accordingly classified Gordon as a maximum custody detainee.[5]

         Based on this custody classification, Gordon was placed in maximum security custody in the OCCC Holding Unit for thirty days. While there, Gordon was alone in a small cell for twenty-three hours per day, had limited access to showers and reading materials, and was not permitted any phone calls. Gordon requested mental health services during the one-month detainment in the OCCC Holding Unit, but was never provided with any.

         c. September 2010 custody evaluation

         On September 22, 2010, an administrative program committee ("the Committee") conducted a hearing to further evaluate Gordon's security custody classification, programming needs, and whether housing at OCCC was appropriate for him. Cho, a DPS correctional supervisor, was the Committee's chairperson.[6] When evaluating an inmate's security classification and housing needs, the Committee can consider "all aspects regarding an inmate," including the inmate's institutional file, current charges, prior convictions, and the inmate's own testimony. Accordingly, Cho and the Committee considered Gordon's own statements that he did not think he should be a maximum custody detainee, had done reasonably well at OCCC, and that there was an error concerning his initial custody classification because it was based in part on charges that were not actually pending.[7]

         The Committee decided, however, that Gordon should remain at the maximum custody level and should be housed at HCF High Security. It notified him of this decision in a written document designated as an "Amended Notice of Programming Results" ("Programming Results"). The Programming Results acknowledged that Gordon had "not received any major misconducts" since being admitted to OCCC. However, Cho and the Committee decided that Gordon should remain as a maximum custody detainee, in solitary confinement, for the following reasons:

• The nature and seriousness of his current charges;
• The number and kind of his prior convictions;
• His extensive criminal history and numerous periods of incarceration;
• His failure to comply with two residential drug treatment programs;
• Leaving the state without permission while on probation;
• His extradition to Hawaii;
• The fact that [Gordon] was on probation when charged with his current offenses;[8]
• His $1, 000, 000.00 bail amount; and
• [O]ther factors identified in the committee's Amended Notice of Programming Results.

         Additionally, the Committee noted Gordon's probation status, unpaid restitution amounts, and the opinion of his probation officer that his case was "questionable."[9] The Committee provided final comments explaining its decision:

The Committee concurs with [the Initial Custody Instrument] that classified Mr. GORDON as MAX and also recommends that he be housed accordingly at Halawa High Security. The Committee deems MR. GORDON a high-risk inmate and also, a high flight risk. OCCC is inappropriate housing for Mr. GORDON because OCCC is not able to provide MR. GORDON with the high degree of direct supervision that he requires.

         According to Cho, an inmate classified as maximum security "needs more direct supervision" by correctional officers, especially when outside of his or her cell, and the Committee felt that OCCC was unable to provide the level of supervision required for Gordon. In evaluating his custody status, Cho never harbored malice or ill-will toward Gordon and did not believe Gordon was punished when he was placed in maximum custody conditions.

         Gordon filed a grievance challenging the Committee's decision on September 29, 2010.

         d. October 2010 Exception Case Form

         On October 5, 2010, Cho received a memorandum from her supervisor, Lance Rabacal ("Rabacal"). The memorandum instructed Cho to "adhere to the directive process that has been consistently utilized at our facility pertaining to MAX custody inmates," which was attached. That memorandum, originally written by a former OCCC warden in November 1996, laid out the State's "arrangement with the ACLU" ("ACLU Memo") regarding procedures for processing maximum custody pretrial detainees. The ACLU Memo provided that pretrial detainees classified as maximum custody "shall be housed in the [OCCC] Holding Unit for 30 days," and "[i]f the inmate remains misconduct free and is not a management problem, OCCC shall then reduce the inmate's custody to Medium and re-house in general population." It also provided that "if the inmate incurs misconducts during the 30-day period, and/or is a management problem, he shall be transferred to HCF as a Max custody." According to Rabacal, the ACLU Memo was "used as a guideline to determine when a recommendation to reduce custody" should be considered.

         On or about October 12, 2010, an Exception Case Form was started for Gordon under Cho's name. This form noted that Gordon had "not shown nor accrued any institutional behavioral misconducts within the OCCC holding unit" and recommended a medium custody classification "[b]ased on 10/5/10 OCCC MAX CUSTODY INMATES directive from Lance Rabacal." The Exception Case Form was sent to the DPS Classification Office, which considers the totality of the circumstances when making the decision to reduce or maintain an inmate's custody level.

         Linda Chun ("Chun"), an officer in the Classification Office, denied Gordon's Exception Case Form on October 19, 2010. Chun recorded the reasoning for her decision on the Exception Case Form itself, noting Gordon's behavior in the OCCC Holding Unit had been satisfactory thus far, but explaining that she thought he should remain in maximum custody for the following reasons:

[T]his case still presents a number of risk factors. Current charges are serious & violent in nature. As a result, subject has a high bail amount. Subject has an extensive criminal history & also has had numerous periods of incarceration. Subject has failed to profit from previous experience with probation and incarceration. Substance abuse issues have not been addressed due to subject's discharge from program for non-compliance with program rules.

         Chun believed, based on her training, experience, and the reasons she cited, that it was reasonable to place a pretrial detainee in maximum security housing.

         The disapproved Exception Case Form was submitted to Deputy Director of Corrections Tommy Johnson ("Johnson") for review. On October 21, 2010, Johnson denied Gordon's request because he believed Chun's statements on the Exception Case Form were true, although he had no personal knowledge of the basis for the statements. Johnson did not believe Gordon's custody level was punishment.

         e. Subsequent grievances and conditions at HCF

         From September 29, 2010, through March 24, 2011, Gordon filed eight Inmate Complaint/Grievances challenging his classification and placement in solitary confinement. Gordon sought reclassification to medium custody and transfer to OCCC, but none of his grievances were granted.

         Gordon was transferred to HCF on October 25, 2010, and was placed in maximum custody. As a pretrial detainee at HCF, he was alone in his cell for twenty-three hours per day, was given forty-five minutes to an hour of recreational time five days a week, had no access to a shower on weekends, and was only allowed noncontact visits with his attorney. He was strip searched daily and searched again each time he returned to his cell. Gordon had limited access to phone calls, did not have access to a commissary, and was denied access to programs.

         According to Monica Lortz ("Lortz"), an HCF Corrections Supervisor, DPS policy requires the custody status of every maximum custody inmate, whether pretrial detainee or sentenced prisoner, to be reassessed once a year. In June 2011, at the instruction of the deputy warden and after Gordon had been at HCF for eight months, Lortz reevaluated Gordon's custody status using a Jail Inmate Custody Review Instrument ("Custody Review Instrument"). After completing the Custody Review Instrument, Lortz assigned Gordon a total of thirteen points, which corresponded to a medium custody level.[10] Gordon's custody level was therefore reduced from maximum to medium, and he was returned to OCCC on June 16, 2011.

         After Gordon was sentenced for his pending charges in September 2011, he was returned to HCF.[11] At the time of the trial in his civil case, Gordon was held at HCF in medium security custody.

         2. The circuit court's conclusions of law

         The circuit court rendered the following conclusions of law relevant to the issues on certiorari.

         a. Gordon's 42 U.S.C. § 1983 claim

         Citing the United States Supreme Court's opinion in Bell, the circuit court stated that pre-trial detainees have a substantive due process right against custodial restrictions that amount to punishment, but also that not every condition imposed during pretrial detention amounts to punishment. To determine whether a condition is punishment, the circuit court determined that it must look to whether the restrictions evince a punitive purpose or intent, and in the absence of an express intent to punish, it must then consider whether punitive intent can be inferred from the nature of the restriction. The circuit court further noted that whether punitive intent can be inferred generally turns upon whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether the restriction appears excessive in relation to the alternative purpose assigned to it.

         The circuit court concluded that Gordon's constitutional rights were not violated based on the lack of substantive evidence showing that Defendants categorized him as a maximum custody pre-trial detainee purely to impose punishment upon him. Furthermore, the circuit court concluded the conditions to which Gordon was subject as a maximum custody detainee were "reasonably related to a legitimate government objective which is to maintain a safe and secure correctional facility," and were no different from the restrictions and conditions of any other maximum custody inmates. The circuit court also concluded that Gordon did not prove "that the conditions of maximum custody imposed by Defendants to maintain a safe and secure correctional facility were excessive to accomplish such objective nor expressly intended as punishment," and that "the restrictions and conditions [Gordon] was subjected to did not amount to punishment."[12]

         Determining that Cho complied with the guidelines of the ACLU Memo, the circuit court also concluded that Cho was entitled to qualified immunity from Gordon's 42 U.S.C. § 1983 claims "because she did not knowingly violate [Gordon's] Constitutional rights" and Gordon did not suffer punishment.

         b. Gordon's negligence claim

         The circuit court determined that "Cho, individually, is afforded the protections of a qualified privilege as to [Gordon]'s state law claims because [Gordon] did not prove by clear and convincing evidence that Defendant Cho was motivated by malice and not by an otherwise proper purpose." Accordingly, the circuit court ordered judgment to be entered for Cho.[13]

         C.ICA ...

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