Petition for Writ of Certiorari — Shimoda v. Akao

Supreme Court, UES |

riL:ED

8% 1343 FEB 8 1999

No. 87- ; JOSEPH F. SPANIOL, JR,

2teeK

In The

Supreme Court of the United States

October Term, 1987

o-—

EDWIN T. SHIMODA, Administrator _ Oahu Community

Correctional Center, and MICHAEL KAKESAKO,

Corrections Division Administrator,

Pe tit One TS,

a

EMMET AKAO, ALLEN V. TRIPP, AND

GARRICK UMIAMAIA,

Respond nts.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ty

Uv

WakrEN Price, II]

Attorney General

State of Hawau

CortnneéE K.A. WaTANABE®

First De puty Attorney Gene ral

State of Hawai

*Counsel of Record

STEVEN S. MICHAELS

1) puty Attorine y Gene ral

State of Hawai

State Capitol

Honolulu, Hawaii 96813

(SOS) 548-4740

Counse ] for Pi titioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

ur call collect (402) 342-2831

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1

QUESTIONS PRESENTED

1. Whether the judgment of the court of appeals,

which on the basis of ‘‘intervening’’ law of the circuit,

handed down after judgment was entered for petitioners

in the district court, permits respondent inmates to litigate

monetary claims for alléged Eighth Amendment violations

occasioned by asserted prison overcrowding, conflicts with

this Court’s decision in Anderson v. Creighton, 107 S. Ct.

3034 (1987), or, if it does not so conflict, breaches the

limits of the Eleventh Amendment?

2. Whether the court of appeals erred in foreclosing

petitioners even from presenting evidence to substantiate

their claim that a 1985 federal consent decree settling

litigation of prison overcrowding charges, including all

claims ‘‘applicable to more than the individual cireum-

stances of a particular plaintiff class member,’’ and which

reflected an explicit agreement by respondents that the

conditions complained of could remain unchanged until

December 15, 1987, mooted the instant controversy and

barred respondents, members of the plaintiff class, from

pursuing monetary relief to redress the instant Eighth

Amendment claims ?*

. Petitioners in this Court include Edwin T. Shimoda, who

from 1982-July 1987 was, and who, on December 1987, was re-

appointed as, Administrator 6f Oahu Community Correctional

Center (“OCCC” or “prison’’), and Michael Kakesako, who from

1975-1984 was the Administrator of the Corrections Division, De-

partment of Social Services and Housing, State of Hawaii. To the

extent respondents’ complaint in the District Court seeks to name

petitioners in their official capacities, petitioners are joined in this

Petition by their successors in office, who are Allan Keliinui for

Mr. Shimoda during the period of July-December 1987, and,

for Mr. Kakesako, Theodore Sakai for the period 1984-87, and

Harold M. Falk, Director of Corrections, thereafter. See Karcher

(Continued on following page)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..... sh Pan ee a ae i

TABLE OF CONTE... 2... eee en see il

TABLE OF AUTHOSGITISS 2. iil

OPINIONS BELOW .....2.203055550500eeeee 1

JURISDICTION“... eee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED occ. cccccescsccecsesssseee feat 4

STATEMENT OF THE Cale 3... eee 5

REASONS FOR GRANTING THE WRIT ............... oa 12

I. The Ninth Cireuit’s Decision Direetly Conflicts

with the Decisions of this Court under the Qual-

ified Immunity Doctrine and the Eleventh

Amendment. _...0.0..c5.cideee ee 13

II. The Ninth Cireuit’s Decision to Give the Con-

sent Decree in Spear v. Ariyoshi Absolutely No

Effect in Precluding Damages Claims Departs

from Settled Precepts of Adjudication and War-

rants BevieW. icici eee 18

COIN CELLU BRTIONG - wrcseaceceecccceee cae 22

A PPPHEN DDE onicccccccciccecccsssssetsscouseecne sence la

(Continued from previous page)

v. May, 56 U.S.L.W. 4022, 4024-25 (U.S. Dec. 1, 1987). Until

1987, OCCC was administered by the Department of Social

Services and Housing of the State of Hawaii. By the Act of June

29, 1987, ch. 338, 1987 Haw. Sess. L. 1096, OCCC is now ad-

ministered by the state Department of Corrections. Any judg-

ment against petitioners in their official capacities would ac-

cordingly be borne by the State of Hawaii. Papasan v. Allain,

106 S. Ct. 2932, 2940 (1986); Helela v. State, 49 Haw. 365, 369,

418 P.2d 482, 485 (1966).

iil

TABLE OF AUTHORITIES

Page

(‘ASES:

Akao v. Shimoda, 820 F.2d 302 (9th Cir.), rehearing

denied and amended, 832 F.2d 119 (9th Cir. 1987) .... 3,8

Albers v. Whitley, 743 F.2d 1372 (9th Cir. 1984),

reversed, 475 U.S. 312 (1986) 9,11,13

Anderson v. Creighton, 107 S. Ct. 3034 (1987) ............. 11, 12,

13, 14, 15, 16, 23

Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505 (1986) 21

Bender v. Williamsport Area School District, 475

I a a

Bowman v. Loperena, 311 U.S. 262 (1940)

oe oa ahead a 3

Chevron U.S.A. v. Natural Resources Defense

Councd, 467 U.S. 837- (1964) ET. 14

Cromwell v. County of Sac, 94 U.S. 351 (1877) .............. 20

Deakins v. Monoghan, 56 U.S.L.W. 4061 (U.S.

ET el An I ne 19

Eichman v. Fotomat Corp., 759 F.2d 1434 (9th Cir.

a ae Rint tal i A 10

Ellis v. Dyson, 421 U.S. 426 (1975) nce 13, 21

Estelle v. Gamble, 429 U.S. 97 (1976) cece «=o

Figueroa v. State, 61 Haw. 369 (1980) 00 17

FTC v. Minneapolis-Honeywell Co., 344 U.S. 206

St SS a 3

Gaut v. Sunn, 792 F.2d 874 (9th Cir. 1986), amend-

ed, 510 F.2d 923 (Sth Cir. 1987) 2

Hans v. Louisiana, 134 U.S. 1 (1890) 0. 11, 12, 13, 17

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Helela v. State, 49 Haw. 365, 418 P.2d 482 (1966) _...... i

iv

TABLE OF AUTHORITIES—Continued

Page

Hoptowit v. Ray, 682 F.2d 1287 (9th Cir. 1982) 7,8, 14

Karcher v. May, 56 U.S.L.W. 4022 (U.S. Dee. 1,

a i PeSTa oP ENR PO nce ree ONDE Oe 1

Kennedy v. Silas Mason Co., 334 U.S. 249 (1948) ......18, 21

Lee v. Leyve, No. 83-0438 (D. Haw. Nov. 23, 1983) ........ 7,8

Limbach & Hooven v. Allison, 466 U.S. 353 (1984) ........ 19

Malley v. Briggs, 475 U.S. 335 (1986) ee eccceeneeeecceeeeeee 15

Maryland v. United States, 381 U.S. 41 (1965) 200... 10

Matter of Beverly Hills Bancorp., 752 F.2d 1334

(9th Cir. 1984) _.... AE ATS IED, Fs ce SS EN 22

Nevada v. United States, 463 U.S. 110 (1983) 2... 20

Nixon v. Fitzgerald, 457 U.S. 732 (1982) nana 21

Papasan v. Allain, 106 8S. Ct. 2932 (1986) 00... 16, 17

Pennhurst State School & Hospital v. Halderman,

WE Re ee | | ite Rome e ALerns Sate =senenetoe 17

Public Utilities Comm’n v. Iawaiian Telephone

Co., No. 87-1152 (U.S. filed Jan. 9, 1988) ......... 3

Pullman-Standard v. Swint, 456 U.S. 273 (1982) 000. ©=22

Quern v. Jordan, 440 U.S: 332 (1979) ~................... 13, 17, 23

Rhodes v. Chapman, 452 U.S. 337 (1980) 0. 8,14

Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) ....... 14

Spear v. Ariyoshi, No. 84-1104 (D. Haw. June 12,

5 Ms rhea hag ata eed nla ee ke 9, 18, 19, 20, 21, 22

Superintendent v. Hill, 472 U.S. 445 (1985) 0. 3

Toussaint v. Yockey, 722 F.2d 1490 (9th Cir.

eee So mma RR Iater Gre T OT MN eee Wr. ee a 9,11, 14, 16

Town of Lockport v. Citizens for Community Ac-

tion, 431 U.S. 259 (1977) werner cn

TABLE OF AUTHORITIES—Continued

Page

Union County Jail Inmates v. DiBuono, 713 F.2d

984 (3rd Cir. 1983), cert. denied, 465 U.S. 1102

CGD | ic icwsincccernncicn nannies maaan 7, 8,16

United States v. S.A. Empersa de Viacao Aerea

Rio Grandense (Varig Airlines), 467 U.S. 797

G ) SNA OER AL Meare CL TLR ntact oe 16

Upchurch v. State, 51 Haw. 150, 454 P.2d 112 (1969) ..... 6

Virginia v. American Booksellers Ass’n, 56

US.LW. 4113 (UB. Jan. %, 1968) 16

Welch v. State Department of Highways, 107

BS. OC. Se CH a ee ie rs 11, 12, 17, 23

Wright v. City of Roanoke Redevelopment €&

Housing Authority, 107 S. Ct. T66 (L987) occa 19

Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) ........... 8

Yates v. Aiken, 56 U.S.L.W. 4065 (U.S. Jan. 12,

| ROOD Ue MIR anna hs Sh as See vee re 23

CONSTITUTIONAL AND STATUTORY PROVISIONS:

U.S. Const., Eighth Amendment 22 ccseessceene passim

U.S. Const., Eleventh Amendment 2.000000 4, 13,17

U.S. Const., Fourteenth Amendment 0. saree bit 4

38 UB. © SO) COE citi 4

BS UTED. 6 TEE. Ce veteeierictinncicn cee +

SS UA. GTR Te cto eee +

6 USS. (2 Gee 2. ee 2, 3, 4

42 U.S.C. § 1983 (1982) ..... seh chadstadetiinalaticaideic cee 4, 8, 13, 19

Act of June 29, 1987, ch. 338, 1987 Haw. Sess. L. ........... i

vi

TABLE OF AUTHORITIES—Continued

Page

Court Rues:

U.S. S. Ct. R. 20.4 3

U.S. S. Ct. R. 29.1 3

Fed. R. App. P. 25(a) 2

Fed R. App. P. 35 3

Fed. R. App. P. 40 3

Fed. R. App. P. 41(a) +

Fed. R. Civ. P. 12(b)(6) 8

Ninth Cir. R. 1-1 2

Ninth Cir. R. 35-2 3

Lecistative History:

Haw. Sen. Comm. Rep. No. 85-87, to be reprinted

m 1987 Haw. Sen. J. — 6

()ruer AUTHORITY:

Restatement (Second) of Judqmeunts § 36(1) 20

No. 87-

In The

Supreme Court of the United States

October Term, 1987

EDWIN T. SHIMODA, Administrator, Oahu Community

Correctional Center,and MICHAEL KAKESAKO,

Corrections Division Administrator,

Petitioners,

Vv.

EMMET AKAO, ALLEN V. TRIPP, AND

GARRICK UMIAMAKA,

Respondents.

a

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

>

VV

Petitioners Edwin T. Shimoda, Administrator, Oahu

Community Correctional Center, and Michael Kakesako,

Corrections Divisions Administrator, Department of Social

Services and Housing, State of Hawaii, together with their

successors in office, respectfully pray that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit en-

tered in this proceeding on June 19, 1987.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

820 F.2d 302 (9th Cir. 1987), and is reprinted in Appendix

1

bo

A. The amended opinion of the Court of Appeals is re-

ported at 832 F.2d 119 (9th Cir. 1987). The order of the

motions panel denying petitioners’ motion to dismiss is un-

reported and is reprinted in Appendix C. The order of

the Court of Appeals denying the petition for rehearing,

rejecting the suggestion for rehearing en banc, and setting

forth the court’s amendment to its opinion, is unreported

and is reprinted in Appendix H. The order of the District

Court granting petitioners’ motion to dismiss is also un-

reported and is reprinted in Appendix E.

JURISDICTION

The judgement of the Court of Appeals for the Ninth

Circuit was entered on June 19, 1987. A petition for re-

hearine and suggestion of the appropriateness of rehear-

ing en bane mailed on July 3, 1987, was treated by the

court below as timely and was denied on the merits on

November 9, 1987.' Under 28 U.S.C. § 2101 and this Court’s

' July 3, 1987, a Friday, was the 14th day after judgment in

the court below, and the Petition for Rehearing was stamped

“filed” by the clerk in San Francisco on Monday July 6, 1987.

Our filing below was premised on Ninth Circuit practice, e.g.,

Gaut v. Sunn, 792 F.2d 874 (9th Cir. June 20, 1986), pet. mailed,

No. 83-2320 (july 7, 1986), resp. ordered (July 20, 1986),

amended, 810 F.2d 923 (Feb. 20, 1987), and our understanding

that the Ninth Circuit considers Rule 40 petitions “briefs“-to

which the mailing rule stated in Fed. R. App. p. 25(a) applies.

See also Ninth Cir. R. 1-1 (adopting this Court’s mailing rule for

filings on which appellate rules are silent).

(Continued on fol'owing page)

Rule 29.1, the time in which this Petition may be filed

extends to and includes February 8, 1988, and this Peti-

tion was filed within the time allowed. Jurisdiction in

(Continued from previous page)

Even if the above does not show that this Petition is timely,

this Petition is still timely for the court of appeals in all respects

treated the petition for rehearing as timely and denied it on its

merits. See Bowman v. Loperena, 311 U.S. 262, 266 (1940).

After the court accepted the petition as timely, the panel re-

quested respondents to ‘file a response to the petition for re-

hearing,’’ Order, Okao v. Shimoda, No. 84-1538 (9th Cir. Aug. 10,

1987), App. B, infra, and the mandate was stayed, as Fed. R.

App. P 41(a) requires, App. G, infra. Respondents raised no is-

sue that the Petition for Rehearing was untimely, see Answer to

Petition for Rehearing and Suggestion of the Appropriateness of

Rehearing En Banc, id. (9th Cir. mailed Aug. 24, 1987, Pet. App.

71, and, in disposing of the petition, the pane! stated in its

order that it “has voted to deny the petition for rehearing,”

Order, id. (9th Cir. filed Nov. ¥, 1987), App. H, infra.

Particularly given the lower court’s order requesting a re-

sponse to our petition, see Fed. R. App. P. 35 and Ninth Circuit

Rule 35-2, these facts alleviate concerns the Attorney General of

Hawaii has expressed in other cases that this Court might treat

certain petitions under Rule 40, Fed. R. App. P., mailed to, but

not received by, the court of appeals on the 14th day after

judgment as untimely for purposes of this Court’s Rule 20.4,

and ineffective to toll the time in which to seek review. Com-

pare Pet. for Cert. at 3 n.1, Public Utilities Comm’n v. Hawaiian

Telephone Co., No. 87-1152 (U.S. filed Jan. 9, 1988) (no action by

court of appeals on petition); FTC v. Minneapolis-Honeywell Co.,

344 U.S. 206, 210-11 (1952) (no paper even purporting to be a

petition filed).

Under any set of assumptions, this Court accordingly has

jurisdiction to act on this Petition for Certiorari, and, on

this basis, we ask the Court to turn to the merits of this case.

Cf. Superintendent v. Hill, 472 U.S. 445, 458 (1985) (Stevens, J.,

joined by Brennan, and Marshall, JJ., concurring in part and dis

senting in part)

4

this Court is invoked under 28 U.S.C, § 1254(1). Juris-

diction in the District Court was alleged to have been con-

ferred by 28 U.S.C. §§ 1848, 2201, and 2202, and was sus-

tained by the Court of Appeals under 28 U.S.C. § 1331.

If the court below allowed respondents to seek recovery

against petitioners in their official capacities, petitioners

urge that it lacked jurisdiction to do so by reason of the

Kleventh Amendment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the Constitution provides

that

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted.

The Eleventh Amendment to the Constitution provides

that

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Sub-

jects of any Foreign State.

The Fourteenth Amendment to the Constitution pro-

vides in relevant part that

No State shall... deprive any person of life, liberty,

or property, without due process of law[.|

Section 1983 of Title 42, United States Code, provides

in relevant part that

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State...

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

STATEMENT OF THE CASE

This ease arises out of the efforts by the State of

Hawaii to accommodate its rising prison population con-

sistent with the demands of the Eighth Amendment. It

presents the substantial issne of the cirenmstances in which

convicted inmates may litigate claims for money damages

against prison officials for the claimed effects of asserted-

ly crowded prison conditions, and an equally important

question of whether such claims may be pursued in light

of a comprehensive class settlement, to which respondents

were party, of complaints relating to Oahu prisons.

1. Like nearly every jurisdiction in the Nation, the

State of Hawaii has experienced in recent years an ex-

plosion in its prison populations. This rise in inmate pop-

ulations has been accompanied by nmiassive increases in

public expenditures for housing, medical care, rehabilita-

tion, and related purposes.”

‘ According to statistics compiled in 1987 by the Hawaii

Legislature: “During fiscal year 1975, the corrections division

had expended $6,491,835. There were 6 facilities and a popula-

(Continued on following page)

6

2. Despite these expenditures and efforts, on October

7, 1983, respondents Emmet Akao, Allen V. Tripp, and

Garrick Umiamaka, three convicted inmates at the Oahu

Community Correctional Center (‘‘OCCC”’ or ‘‘prison’’),

filed this action in the United States District Court for the

District of Hawaii to enjoin certain practices relating to

housing in ‘‘ Module-1,’’ one of the several new units built

in the 1970s after our legislature appropriated funds ‘‘ for

the construction of a modern prison.’? See Upchurch v.

State, 51 Haw. 150, 153, 454 P.2d 112, 114 (1969). As

stated in the complaint, Module-1 contains 24 rooms, in-

cluding eight ‘‘corner rooms,’’ each with floor space of

80.3 square feet, and air space of 637.3 cubic feet. Com-

plaint {//7, 10, 11, No. 83-1167 (D. Haw. filed Oct. 7,

1983), Pet. App. 18. The module also contains a spacious

9?

‘‘recreation area,’’ and inmates, at the time, were housed

in cells for only nine hours a day, ‘‘from 10:30 P.M. untill

[sic] 7:30 A.M. the following day.’’ Id. [ 12, 14, Pet. App.

19.

3. The gravamen of respondents’ complaint to the

District Court was that prison officials on June 20, 1983,

informed respondents that they would, during the nine

hour evening period, begin ‘‘tripling up the 8 corner rooms

which at that time housed two men,’’ although ‘‘[t]he re-

maining 16 rooms would still house only two men.’’ Td.

8. Respondents alleged that, ‘‘[d|ue to [present] popu-

lation increases in Module-1, there is an increase in stress,

(Continued from previous page)

tion of 403 inmates and 325 staff members. By fiscal year 1986,

expenditures reached $36,432,607; there were 9 facilities and a

plan to open a mediuin security facility within the year; and

the staff for the facilities increased to 1,294 and the inmate

population jumped to 2,143.” Haw. Sen. Comm. Rep. No. 85-

87 (Mar. 2, 1987), to be reprinted in 1987 Haw. Sen. J. —.

7

fension, communicable diseases, and a high increase in

confrontations between inmates.’’ Complaint § 12.

Respondents did not allege that they lived in Module-1,

or the corner rooms, or that they personally experienced

increased stress, tension, communicable disease, or con-

frontations. Nor did respondents claim the level of cleanli-

ness, medical care, or security for inmates in the Module

was itself inadequate. And respondents did not allege

that the increases were intended to punish the Module-1

inmates rather than spread the acute housing shortage

as fairly as possible. Respondents prayed for relief bar-

ring ‘‘defendants, their successors in office, agents and

employees and all other persons in active concert and

participation with them from over crowding plaintiffs and

>]

housing 3 men in a room,’’ and for an ‘‘injunction’’ that

‘‘frJequires defendants to pay jointly, damages of

$10,000.00,’’ and ‘‘punitive damages of $10,000 00.”’ Id.

at 5.

4. Respondents’ complaint was only one in a series

of mass-produced complaints over alleged overcrowding

at OCCC, all of which, contemporaneously with this action,

were dismissed by the District Court on the pleadings for

failure to state a claim upon which relief could be granted.

See, e.g., Lee v. Leyve, No. 83-0438 (D. Haw. order of

dismissal filed Nov. 23, 1983), reprinted at Pet. App. 29,

infra. Other courts at the time this action had commenced

had acted similarly. In an exhaustive opinion issued two

months before the instant complaint was filed, the United

States Court of Appeals for the Third Circuit sustained

against Eighth Amendment attack a per capita space allot-

ment of 19.5 square feet of sleeping space, about a third

8

less than that under triple-celling here. Union County Jail

Inmates v. DiBuono, 713 F.2d 984, 999 (3rd Cir. 1983). In

the Ninth Cireuit, Hoptowit v. Ray, 682 F.2d 1237 (9th

Cir. 1982), had held that ‘‘inereased violence,’’ standing

alone, did not state a claim for relief under § 1983, par-

ticularly when prison populations were increasing, and

had ruled only generally that the Kichth Amendment was

breached when ‘‘the shelter of the inmates is unfit for

human habitation.’’ Jd. at 1249; see also Wright v. Rushen,

642 F.2d 1129, 1182-33 (9th Cir. 1981). In Rhodes v. Chap-

man, 452 U.S. 337 (1980), this Court itself had held that

unless prison conditions ‘‘deprive inmates of the minimal

99

civilized measure of life’s necessities,’’ id. at 347 (empha-

sis added), such conditions cannot be a basis for § 1983

rehet. Rhodes reserved whether overcrowding that in fact

caused actual ‘‘rioting’’ would ever lead to an Eighth

Amendment violation, and had noted the special delicacy

of this issue inasmuch as ‘‘a prison’s internal security is

‘ peculiarly a matter normally left to the discretion of

prison administrators.’’ Id. at 349 n.14. Petitioners moved

to dismiss the action under Rule 12(b)(6),? and the Dis-

trict Court, after joining respondents’ actions with two

identical suits, granted the motion and ordered all three

actions dismissed with prejudice. Akao v. Shimoda, No.

83-1137 (D. Haw. filed Dec. 21, 1983). At no time in the

District Court did respondents seek leave to amend. Re-

spondents appealed.

5. Respondents with leave of court filed their open-

ing brief in the Ninth Circuit more than a year later.

- See Memorandum of Law in Support of Motion to Dismiss,

No. 83-1067 (D. Haw. Dec. 1, 1983) (citing, e.g., Rhodes, Hop-

towit, Wright, Lee and Union County), Pet. App. 26-28, infra.

Meanwhile, the Ninth Cireuit had held, in Toussaint v.

Yockey, 722 F.2d 1490 (9th Cir. 1984), that injunctive relief

under the Eighth Amendment could be had under the cir-

cumstances in that case because the district court there

found ‘‘double-celling engenders violence, tension and psy-

chiatric problems,’’ id. at 1492, and, in Albers v. Whitley,

743 T'.2d 1372 (9th Cir. 1984), reversed on other grounds,

106 S. Ct. 1079 (1986), that qualified immunity under

Harlow v. Fitzgerald, 457 U.S. 800 (1982), could not ever

be asserted under the Eighth Amendment standard of ‘‘de-

liberate indifference’’ set forth in Estelle v. Gamble, 429

U.S. 97 (1976), because, in Judge Canby’s words, ‘‘[a]

finding of deliberate indifference is inconsistent with a

finding of good faith or qualified immunity.’’ 743 F.2d at

1376. When petitioners filed their answering brief, on

June 5, 1985, Harlow immunity was not briefed as a

ground on which to affirm the District Court judgment

with respect to damages claims, if such claims were against

petitioners in their individual capacities.

6. One week later, on June 12, 1985, the State of

Hawaii and respondents, named plaintiffs in the class aec-

tion, Spear v. Aryoshi, No. 84-1104 (D. Haw. decree en-

tered June 12,'1985), Pet. App. 35, infra, entered into a

comprehensive consent judgment settling an enormous

range of prison condition issues at OCCC. The consent

judgment, the first of its kind, establishes expert panels on

medical care, food services and environmental health and

safety, and corrections to submit plans including ‘‘objec-

tives, timetables, and mechanisms for action,’’ and con-

tains mandatory mediation clauses that require all issues,

including compliance with the decree and the plans, on

which there is a dispute to ‘‘be presented to a mediator.’’

ee

10

Pet. App. at 37-38. The decree allowed triple celling of all

rooms in Module-1, the very source of respondents’ charge

of unconstitutional prison conditions, for two and a half

years, until December 15, 1987, td. at 41-42.

Because under prevailing Ninth Cireuit law respon-

dents would be barred by the decree from litigating any

claim arising prior to its entry, see Eichman v. Fotomat

Corp., 759 F.2d 1434, 1438-39 (9th Cir. 1985), the parties

entered into an agreement that would permit plaintiffs to

litigate ‘‘individual claims for declaratory, injunctive,

and/or monetary relief,’’ for example, claims that would

arise if a guard randomly applied excessive force, but that

barred further litigation of claims ‘‘applicable to more

than the individual circumstances of a particular plaintiff

class member.’’ Consent Decree § I.N, No. 84-1104 (D.

Haw. June 12, 1985). The waiver clause reads:

By entering into this Decree, plaintiffs and members

of the plaintiff class are not waiving any rights to

pursue individual claims for declaratory, injunctive,

and/or monetary relief. The only claims against de-

fendants settled herein are claims for injunctive relief

of a general nature as detailed in the complaint filed

in this case and which are applicable to more than the

individual cireumstances of a particular plaintiff class

member.

Pet. App. 39-40. As instructed by cases such as Maryland

v. United States, 381 U.S. 41, 53 n.38 (1965), petitioners

immediately moved to dismiss the appeal, which clearly

concerned a claim ‘‘applicable to more than the individual

circumstances of a particular plaintiff class member,’’ as

moot. Pet. App. 54.

7. On July 11, 1985, a two-judge panel composed of

Judges Farris and Wiggins denied the motion to dismiss.

11

Pet. App. 5. The panel reasoned that while the waiver

clause should not be read literally, and thus ‘‘[t]he claims

for injunctive and declaratory relief are moot,’’ id. (em-

phasis added), the ‘‘claim for monetary relief is not moot,

however.’’ On June 19, 1987, more than three vears after

appeal was taken, a panel consisting of Judges Wallace,

Kennedy, and Wiggins, reversed the district court in a per

curtam opinion. The court reasoned that respondents’

claim that the asserted increases in population in Module-1

had led to ‘‘ ‘an increase in stress, tension, communicable

diseases, and a high increase in confrontations between

inmates’’ stated a claim for monetary relief under the

Eighth Amendment. The court relied entirely upon ‘‘the

intervening Toussaint opinion,’’? which was handed down

‘*!s]ubsequent to the decision of the district court.’’ 820

F.2d at 303, Pet. App. 2. The court instructed the, lower

court to permit an amendment not to repair any defect in

the allegation of wrongdoing, but to assure that respon-

dents could allege that ‘‘they personally have suffered

cruel or inhuman punishment.’’ Jd. (emphasis added).

8. Six days later, on June 25, 1987, this Court handed

down its decision in Welch v. State Department of High-

ways, 107 S. Ct. 2941 (1987), in which a majority of the

Court refused to disturb the rule of Hans v. Louisiana, 134

U.S. 1 (1890), which barred respondents’ monetary claims

if such claims were against petitioners in their official

capacity. The same day, this Court also issued its-opinion

in Anderson v. Creighton, 107 S. Ct. 3034 (1987), in which

six Justices rejected analyses such as Judge Canby’s in

Albers, and held that for personal capacity claims for dam-

ages arising out of an unconstitutional act to survive a

qualified immunity defense, ‘‘in light of preexisting law

12

the unlawfulness must be apparent.’’ 107 S. Ct. at 3039.

Petitioners sought rehearing and rehearing en banc, rely-

ing on Welch, Anderson, and other decisions, as well as on

the conflict between the motions panel’s decision to fore-

close any attempt to show on remand that the consent de-

cree’s waiver clause barred respondents’ claims, and the

merits panel’s decision to allow respondents leave to prove

their factual claims. Although the court requested of and

received from respondents a response to the petition for

rehearing, the court denied the petition and rejected en

banc review. Pet. App. 4, 14-15, 71.

o

REASONS FOR GRANTING THE WRIT

Even if this Court had not decided Anderson v. Cretgh-

ton, 107 S.Ct. 3034 (1987), or upheld Hans v. Loutsiana,

134 U.S. 1 (1890), this case would merit review. The

liability of prison officials faced with vague and evolving

standards under this Court’s Eighth Amendment jurispru-

dence is a substantial issue. Crowded prisons are truly a

national problem. That prison officials, who must com-

pete for scarce funds with other important programs that

address ‘‘the most basic economic needs of impoverished

human beings,’’ Dandridge v. Williams, 397 U.S. 471, 487

(1970), may be liable for effects of an ‘‘increase in stress,

tension, and communicable disease’’ caused by prison pop-

ulation increases would be a matter of such import to

warrant granting review, even absent conflicts in the

courts of appeals or a conflict with the decisions of the

Supreme Court.

13

The Court does not, however, write upon this issue

with a clean slate. The decision of the court below is

plainly wrong under Anderson and Hans, not to mention

the settled holding of Quern v. Jordan, 440 U.S. 332 (1979),

that 42 U.S.C. § 1983 does not abrogate the States’ immun-

ity from suit in federal court. Just as important, the Ninth

Cireuit’s decision makes meaningless a consent decree

settling the largest prison litigation in the history of Ha-

wail and which was intended to keep just such time-con-

suming lawsuits as this out of the courts so that resources

could be more effectively devoted to prison needs. The

Ninth Circuit’s refusal to permit petitioners even to sub-

mit evidence bearing on the parties’ intent, which threatens

settlement efforts of this nature across the Nation, contra-

dicts numerous principles of summary adjudication, e.g.,

Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), and justi-

ciability, e.g., Ellis v. Dyson, 421 U.S. 426, 435 (1975), and

ought to be the subject of this Court’s review, and, ulti-

mately, reversal.

I. The Ninth Circuit’s Decision Directly Con-

flicts with the Decisions of this Court under

the Qualified Immunity Doctrine and the

Eleventh Amendment.

As clarified by this Court’s Anderson decision, the

objective qualified immunity enunciated in Harlow v. Fite-

gerald, 457 U.S. 800 (1982), provides that state officials

performing discretionary functions ‘‘will not be held per-

sonally liable as long as their actions are reasonable in

light of current American law.’’ 107 S.Ct. 3042 (emphasis

added). In light of Anderson, which clearly overruled the

Ninth Circuit’s analysis to the contrary in Albers, the

Ninth Cireuit’s decision here is patently erroneous. For

the court below recognized that the only way in which

14

respondent’s complaint could be read to state a claim for

relief was by virtue of the ‘‘intervening Toussaint opin-

ion,’’ which was handed down by the court below three

months after respondents filed their complaint. See 722

F.2d at 1490. The decision to which respondents and the

court below would hold petitioners was not part of ‘‘eur-

rent American law’’ when petitioners were alleged to have

violated respondents’ rights. Under Anderson, respond-

ents simply cannot prevail.

Respondents, seeking to bolster the judgment below

in response to our petition for rehearing, cited the Ninth

Circuit’s decisions in Hoptowit v. Ray, 682 F.2d 1237 (9th

Cir. 1982), and Spam rv. Procunier, 600 F.2d 189 (9th Cir.

1979), as establishing that ‘‘each of the effects of over-

crowding alleged by plaintiffs forms the basis of an Eighth

Amendment violation and did so at the time the complaint

was filed.’’ Pet. App. 77. But even though it is true

that ‘‘this Court reviews judgments, not opinions,’’ Chev-

ron U.S.A. v. Natural Resources Defense Council, 467 U.S.

837, 842 (1984), respondents’ argument to the lower court

on why Anderson did not apply is exactly the argument

that was rejected in Anderson. It of course was the law

when this action was filed that conditions that ‘*deprive

inmates of the minimal civilized measure of life’s neces-

9? és

sities could be cruel and unusual under [a] contemp-

orary standard of decency.’’ Rhodes v. Chapman, 452

U.S. 337, 347 (1981) (emphasis added). But this, and the

broad dicta in Hoptowit and Spain, take nothing from the

fact that the Third Cireuit had held expressly, months be-

fore this action commenced, that sleeping space a third

smaller than that proposed for Module-1 here was consti-

tutional, regardless of its effects on inmate morale, and

15

that district judges in Hawaii, including the judge in this

case, had routinely dismissed overcrowding claims pleaded

as violations of the Eighth Amendment. In light of the

then-current legal landscape, petitioners could not have

* 99

been ** ‘plainly incompetent in triple-celling Module-1

in the summer of 1983 even if that is what they did. <An-

derson, 107 S.Ct. at 3038 (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). In this regard, it should be of no

small moment that respondents themselves, in consenting

to the class action consent decree, agreed to triple-celling

in the Modules for more than two years, until December

15, 1987.

Nor is it of any avail to respondents to assert that the

matter of immunity is premature in light of the Ninth

Circuit’s granting of leave to amend. Anderson makes

clear that ‘‘immunity questions should be resolved at the

earliest possible stage of a litigation,’’ 107 S.Ct. at 3042

n.6, and, more important, the Ninth Cireuit did not grant

a general leave to amend. Obviously concerned that re-

spondents had not alleged any facts sufficient to sustain

their standing to litigate, the court permitted an amend-

ment, if one could be honestly made, that respondents

‘*personally have suffered cruel or inhuman punishment.”’

Pet. App. at 2-3. But under the panel order, any population

level that ‘‘ ‘endangers violence, tension, and psychiatric

problems’ ”’ is unlawful under the Eighth Amendment. Jd.

If respondents can allege they are victims of such phenom-

ena, under the Ninth Cireuit ruling their complaint can

withstand a motion to dismiss even in light of Anderson.

If that is not so, then the Ninth Cireuit decision conflicts

with the well-settled rule from Foman v. Davts, 371 U.S.

178 (1963), that futile amendments are not to be allowed

under Fed. R. Civ. P. Rule 15. ZJd. at 182.

pene

16

The ultimate answer to the Ninth Cireuit’s refusal to

grant rehearing and affirm the district court is the in-

escapable conclusion that the panel decision on the merits

quite seriously expands Toussaint v. Yockey itself. —For

in Toussaint, unlike here, inmates literally ‘‘live[d] in”’

cells providing less than twenty-five square feet per per-

son and were so confined ‘‘for as much as 23% hours a

day.’’ 722 F.2d at 1492. Respondents, by contrast, ad-

mitted that Module inmates spent only sleeping hours in

their cells. Complaint § 12, Pet. App. 19. It was just this

difference that led the Third Cireuit to rule in favor of the -

prison in Union County Jail Inmates v. DiBuono, 713 F.2d

984 (3rd Cir. 1983).4 The Ninth Cireuit suggested it would

do likewise. Hoptowit, 682 F.2d at 1249. It is thus at best

surprising that the Ninth Cireuit did not recognize, if its

decision was not wrong on the merits, which it was, see

Whitley v. Albers, 475 U.S. 312, 318-22 (1986), then at the

least it was the sort of expansion of Eighth Amendment

standards for which state officials should not, in their per-

sonal capacities, bear the cost in the form of burdensome

damages litigation.

While the Ninth Cireuit might have eluded the issue of

qualified officer’s immunity by recognizing that respon-

‘ Prison officials in DiBuono did confess error as to the

practice of requiring inmates to sleep on mattresses on the

floor, a practice respondents alleged petitioners were about to

institute in Moduie-1. See Complaint § 8, Pet. App. 18. Even

assuming that Hawaii's tropical climate, local customs, and re-

spondents’ own agreement to allow sleeping on the floor, Pet.

App. 42-43, would not be subject to judicial notice in deciding

the relevance of such an allegation for Anderson purposes, but

see Papasan v. Allain, 106 S. Ct. at 2943, the concession of de-

fendants in DiBuono does not make for clearly established /aw.

See United States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797, 812 (1984) (on the significance of

(Continued on following page)

So

17

dents’ claims were not against petitioners in their individ-

ual capacities at all, but in fact sought relief against the

State of Hawaii, permitting a remand under this theory

would be barred by the Eleventh Amendment and this

Court’s decision in Quern v. Jordan, 440 U.S. 332 (1979).

As this Court has made clear on any number of occasions,

official capacity suits for damages are barred by the

Eleventh Amendment, for ‘‘[rlJelief that in essence serves

to compensate a party injured in the past by an action of

a state cfficial in his official capacity that was illegal un-

der federal law is barred even when the state official is

the named defendant.’’ Papasan v. Allain, 106 S. Ct. 2932,

2940 (1986) (citing cases). Litigation of official capacity

claims in district court would be doubly wrong. As this

Court noted in Pennhurst State School € Hospital v. Hal-

derman, 465 U.S. 89 (1984), ‘‘a State’s waiver of sover-

eign immunity in its own courts is not a waiver of the

Eleventh immunity in the federal courts.’’ Jd. at 99 n.8.

Hawaii has not waived its immunity for constitutional

torts even in its own courts. Figueroa v. State, 61 Haw.

369, 604 P.2d 1198 (1980). Given this Court’s continued

adherence to the rule of Hans v. Louisiana, 134 U.S. 1

(1980), see Welch, 107 S. Ct. at 2957-58 (Sealia, J., con-

curring in part and concurring in the judgment), the judg-

ment below cannot stand on any claimed entitlement to

litigate official capacity actions for damages in federal

court.

On any understanding of the record, therefore, the

lower court’s decision conflicts with this Court’s jurispru-

dence of official and sovereign immunity. Certiorari

(Continued from previous page)

concessions by the Government); see also Virginia v. American

Booksellers Ass’n, 56 U.S.L.W. 4113, 4117 (U.S. Jan. 25, 1988)

(position of counsel in litigation “does not bind” courts).

amnesiac ddiacaa alias

18

should be granted to correct these conflicts, and substan-

tial issues presented generally by damages claims such as

those of respondents.

II. The Ninth Circuit’s Decision to Give the Con-

Sent Decree in Spear v. Ariyoshi Absolute-

ly No Effect in Precluding Damages Claims

Departs from Settled Precepts of Adjudica-

tion and Warrants Review.

Perhaps the most disturbing feature of the decision

below is that the court should never have reached the fed-

eral issues raised by respondents’ complaint. For those

issues, under any understanding, involved claims ‘‘which

are applicable to more than the individual circumstances

of a particular plaintiff class member,’’ and were thus

| barred by the consent decree in Spear v. Ariyoshi, No.

84-1108 (D. Haw. filed June 12, 1985).

Respondents do not dispute they are named members

of the class in Spear. Rather their argument to the court

below was that the Spear plaintiffs ‘‘did not waive any

claims for monetary relief.’’ See Pet. App. at 79.

Under respondents’ view, everything that petitioners have

done, are doing, or will do under the consent decree, can

be litigated via damages suits no matter how clearly peti-

tioners have complied with the decree, and regardless

whether respondents fail to invoke the mediation proce-

dures that are mandatory prerequisites to judicial relief

under the decree. In accepting respondents’ argument in

this most important settlement, the Ninth Cireuit departed

from numerous established doctrines that govern justicia-

bility problems raised by the entry of the instant decree

pending appeal.

The importance of a correct interpretation of the con-

sent decree cannot be overstated. In this instance the

19

federal question of the parties’ intent in Spear, see Lim-

bach & Hooven v. Allison, 466 U.S. 353, 362 (1984) (pre-

clusive effect of federal judgment is a federal question),

goes to the very jurisdiction of the court of appeals not

just in this case, but in the dozens of cases that are cer-

b

tain to be brought if the respondents’ view of the consent

decree prevails. If, as we contend, petitioners did not agree

to allow respondents to pursue such redundant litigation,

‘‘there no longer is a live controversy between the parties

over whether a federal court can hear respondents’ .

elaims.’’ Deakins v. Monoghan, 56 U.S.L.W. 4061, 4063

(U.S. Jan. 12, 1988). As this Court stated in Bender v.

Williamsport Area School District, 475 U.S. 534 (1986),

‘every federal appellate court has a special obligation to

‘satisfy itself not only of its own jurisdiction, but also that

of the lower courts in a cause under review,’ even though

the parties are prepared to concede it.’’? Jd. at 541. In-

deed, this court has taken special pains to give effect to

efforts by Congress to preclude § 1983 litigation when the

structure of a legislative scheme ‘‘has foreclosed such en-

forcement of the statute in the enactment itself,’?’ Wright

v. City of Roanoke Redevelopment & Housing Authority,

107 S. Ct. 866, 770 (1987). Where the parties before the

court have created an elaborate, and exclusive, mechanism

for addressing difficult prison conditions, judicial protec-

tion against needless federal litigation under 42 U.S.C.

§ 1983 is even more warranted,

Respondents’ view of the consent decree is objectively

unreasonable. By incorporating discussion of money dam-

ages in the consent decree, respondents acknowledged that

the relief in Spear could have run against defendants in

their individual capacities, and, thus, petitioners and

20

their privies could take the full benefit of the Spear de-

cree. Pet. App. 39-40; see Restatement (Second) of Judg-

ments § 36(1); Pulliam v. Allen, 466 U.S. 522 (1984) (ef-

fect of injunctive relief under § 1983); Nevada v. United

States, 463 U.S. 110, 128-30, 135 (on parties who may take

the benefit of res judicata) (citing Cromwell v. County of

Sac, 94 U.S. 351, 352 (1877)). Petitioners and respondents

also created two classes of claims: (1) ‘‘individual claims

for declaratory, injunctive, and/or monetary relief’’; and

(2) group claims for such relief, 7.e., ‘‘claims for injunctive

relief of a general nature as detailed in the complaint filed

in this case and [other claims] which are applicable to

more than the individual circumstances of a particular

plaintiff class member.’’ Pet. App. 39-40. The latter were

settled by Spear.

Although the respondents seek to make dozens of cases

turn on the absence of the words ‘‘other claims”’ in the

written decree, the Ninth Cireuit itself recognized that

such words must be read into the decree for the waiver

clause to make sense. Thus, the Ninth Cireuit held

respondents’ claims for injunctive and declaratory relief

were moot. If this holding is correct, however, the claims

for damages also were moot. The court below had no

more authority to write the waiver for ‘‘more than

individual cireumstances’’ claims partially out of the

Spear consent decree than it had to eliminate the clause

completely.

Ultimately it was not necessary for the court of

appeals, nor would it be necessary for this Court, to

dispositively resolve the impact of the consent decree.

21

What the court below should have done pursuant to its

duty to protect its jurisdiction from encroachment by

litigants bringing moot cases was remand the question

to the district court for a full development of the facts

bearing on the parties’ intent. Because the consent

decree was entered after appeal was taken, petitioners

had no choice but to present their plea of mootness to the

court of appeals without the benefit of the district court’s

ability to find facts bearing on the parties’ intent in light

of what was, at worst for petitioners, an ambiguity in the

written documents. Remand would have comported with

this Court’s practice in cases in which Justiciability

problems arise on appeal. See Town of Lockport v.

Citizens for Community Action, 431 U.S. 259, 263, 264 n.9

(1977); Ellis v. Dyson, 421 U.S. 426, 435 (1975).

Indeed, inasmuch as the Ninth Circuit’s ruling, in

essence, granted summary judgment to respondents on

the effect of the consent decree, the court’s decision is

in plain conflict with this Court’s admonition that ‘‘sum-

mary procedures, however salutary where issues are clear-

eut and simple, present a treacherous record for deciding

issues of far-flung import[.]’’ Kennedy v. Silas Mason

Co., 334 U.S. 249 (1948); see Anderson v. Liberty Lobby,

Inc., 106 S. Ct. 2505, 2513-14 (1986) (factors bearing on

whether summary judgment should be given). Indeed, if

the panel was correct that a dismissal should not have been

affirmed on the basis of the essentially legal issues pre-

sented by our immunity claims, see Nixon v. Fitzgerald, 457

U.S. 732, 743 n. 23 (1982), which it was not, then at least it

was in error in upholding the motions’ panel’s summary de-

’

cision adjudicating the parties’ intent in settling the Spear

action.» ‘‘Treating issues of intent as factual matters for

the trier of fact is commonplace.’’ Pullman-Standard v.

Swint, 456 U.S. 273, 288 (1982). The decision below

seriously breaches this rule.

Because the Ninth Cireuit’s rulings will likely bar

petitioners from pursuing further their claim to protection

under Spear, see Matter of Beverly Hills Bancorp., 752

F.2d 1334, 1336 (9th Cir. 1984,) the court should grant

certiorari to review the Ninth Cireuit’s departure from

this Court’s precedents that bear upon the mootness of

this action, and the power of the lower courts to act under

Article III.

=

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for certiorari and ultimately reverse the decision

of the court of appeals or vacate the judgment below and

remand with instructions to remand the case to the district

court so that the trial court may enter findings, prior to

deciding the merits of any other federal issue, bearing

upon the intent of the parties to the Spear litigation and,

? By the admission of their counsel, there was substantial

evidence that respondents themselves believed that the Spear

decree mooted their claims. See Declaration of Counsel at-

tached to respondents’ Answer to Petition for Rehearing and

Suggestion of the Appropriateness of Rehearing En Banc, Pet.

App. 82 (respondents “did not want [petitioners] to spend

time responding to our opening brief if we would ultimately

have to abandon the appeal” (referring to conversations among

counsel relating to respondents’ evaluation of remedies pro-

vided by the decree). See also Pet. App. 67 n.1 (statement

that counsel for respondents noted that “ ‘issues on appeal may

be rendered moot’ ”’).

23

hence, the mootness of this action. Because the Ninth

Circuit had only the opportunity afforded by our petition

for rehearing to correct its judgment in light of Anderson

and Welch, the Court may wish to grant the petition,

vacate the judgment below, and remand with instructions

that the cause below be reconsidered in light of these

decisions. See Yates v. Aiken, 56 U.S.L.W. 4065, 4066

(U.S. Jan. 12, 1988) (decision to vaeate and remand for

reconsideration even though intervening precedent had

been ‘‘ealled to the attention of the [lower] court’’ and

lower court had opportunity to address it). This course

would also allow the petitioners to seek again to persuade

the court of appeals that, as an alternative to affirming

the district court’s dismissal, the court below may wish

to vacate the judgment of the district court and remand

for a determination of the parties’ intent in Spear. See

Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979).

Respectfully submitted,

Warren Price, ITI

Attorney General

State of Hawai

CortnnE K.A. WaTANaBE*

First Deputy Attorney General

State of Hawau

. *Counsel of Record

STEVEN S. MicHAELs

Deputy Attorney General

State of Hawaun

State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

Counsel for Petitioners

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMET AKAO, ALLEN V. TRIPP and

GARRICK UMIAMAKA,

Plaintiffs-A ppellants,

v.

EDWIN T. SHIMODA, Administrator of

Oahu Community Correctional Center, and

MICHAEL KANESAKO,

Corrections Division Administrator,

Defendants-Appellees.

No. 84-1538

D.C. No. CV 83-1067-SPK

OPINION

Argued and Submitted

April 13, 1987—San Francisco, California

Filed June 19, 1987

Before: J. CLIFFORD WALLACE, ANTHONY M.

KENNEDY and CHARLES WIGGINS, Circuit Judges.

Per Curiam

\

Appeal from the United States District Court

for the District of Hawaii

Samuel P. King, District Judge, Presiding

OPINION

PER CURIAM:

Akao, Tripp, and Umiamaka (prisoners) brought a

pro se action pursuant to 42 U.S.C. § 1983 alleging a vio-

).

—Ce

lation of their eighth amendment right to be free from

cruel and unusual punishment. The defendants in this ac-

tion, the Director of Corrections and Administrator of the

Oahu Community Correction Center, moved to dismiss.

The district court dismissed their action, holding that it

‘is clear that [the prisoners] can claim no eighth amend-

ment violations.’’ Order, p.3. The prisoners appealed and

we appointed pro bono representation. The district court

had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. ¢ 1291. We reverse.

The district court properly held that an allegation of

overcrowding without more does not state a claim under

the eighth amendment. Hoptowit v. Ray, 682 I°.2d 1237,

1249 (9th Cir. 1982). But more was alleged here: ‘‘ Due to

population increase in Module-1l, there is an increase in

stress, tension, communicable diseases, and a high increase

in confrontations between inmates.’’ Complaint, {) 12.

Subsequent to the decision of the district court, we decided

Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984), in

which we affirmed a determination of an eighth amend-

ment violation due to overcrowding when it ‘‘engenders

violence, tension, and psychiatric problems.’’ Jd. at 1492.

Pro se complaints are held to a less strict standard

than those drafted by a lawyer. Estelle v. Gamble, 429

U.S. 97, 106 (1976). It is appropriate to dismiss a pro se’s

action only if it is ‘‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief.’’ /d., quoting Conley v. Gibson, 355

U.S. 41, 45-46 (1957). Given the intervening Toussaint

opinion, we cannot say now that this test has been met.

It is true that the prisoners’ allegations are not suf

ficiently specifie and do not allege that they personally

3a

have suffered cruel or inhuman punishment, but we cannot

hold that it is ‘‘beyond doubt’’ that they could not do so.

Therefore, we reverse and remand for the district court to

allow the prisoners to file an amendment.

Upon issuance of our mandate, pro bono counsel is re-

lieved from his appointment. He may move for attorneys’

fees and costs pursuant to 42 U.S.C. 41988. Leeds v. Wat-

son, 630 I'.2d 674, 677 (9th Cir. 1980).

REVERSED AND REMANDED.

4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMET AKAO, ALLEN V. TRIPP and

GARRICK UMIAMABA,

Plaintiffs-Appellants,

-Va-

EDWIN T. SHIMODA, Administrator of

Oahu Community Correctional Center, and

MICHAEL KANESAKO,

Corrections Division Administrator,

Defendants-Appellees.

Filed August 10, 1987

CATHY A. CATTERSON, Clerk

U.S. COURT OF APPEALS

Appeal from the United States District Court

for the District of Hawaii

No. 84-1538

D.C. No. CV &83-1067-SPK

ORDER

Before: WALLACE, KENNEDY, and WIGGINS,

Circuit Judges.

Plaintiffs-appellants are requested to file a response

to the petition for rehearing and suggestion for rehearing

en bane filed by the defendants-appellees within fourteen

(14) days from the date of this order.

Ja

APPENDIX C ”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMETT AKAO, ALLEN V. TRIPP and UMIAMAKA,

Plaintiffs-A ppellants,

Vs.

EDWIN T. SHIMODA, Administrator of

Oahu Community Correctional Center, and

MICHAEL KANESAKO,

Corrections Division Administrator,

Detendants Appellees.

FILED July 11, 1985

PHILLIP B. WINBERRY

Clerk U.S. Court of Appeals

No. 84-1538

DC CV 38-1067-SPK

Hawaii

ORDER

Before: FARRIS and WIGGINS, Circuit Judges

The claims for injunctive and declaratory relief are

moot. The claim for monetary relief is not moot, however.

Accordingly, appellees’ motion to dismiss the appeal is

denied.

ba

APPENDIX D

JUDGMENT IN A CIVIL CASE

UNITED STATES DISTRICT COURT

HAWAII

CIVIL NO. 83-1067

EMMET AKAO, et al.

V.

MICHAEL KAKESAKO, et al.

SAMUEL P. KING. Judge

Jury Verdict. This action came before the Court and

a jury with the judicial officer named above presiding.

The issues have been tried and the jury has rendered

its verdict.

Decision by Court. This action came for consideration

xX

before the Court with the judge named above pre

siding. The issues have been tried or heard and a de-

cision has been rendered.

IT IS ORDERED AND ADJUDGED that defen-

dants’ Motion to Dismiss is hereby GRANTED.

Filed in the United States District Court

District of Hawaii

December 21, 1983

«: Emmet Akao, pro se

Allen V. Tripp, pro se

Garrick Umiamaka, pro se

James H. Dannenberg, Esq

s/ WALTER A.Y.H. CHINN

Clerk December 21, 1983

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CIVIL NO. 83-977

JEFFREY R. MUELLER, et al.,

Plaintiffs,

vs.

MICHAEL KAKESAKO, et al.,

Defendants.

CIVIL NO. 83-978

JOHN PAUL WILDER,

Plaintiff,

Vs.

EDWIN T. SHIMODA,

Defendant.

CIVIL NO. 83-1067

EMMET AKAO, et al.,

Plaintiffs,

Vs.

MICHAEL KAKESAKO, et al.,

Defendants.

Filed in the United States District Court

District of Hawaii

December 21, 1983

WALTER A. Y. H. CHINN, Clerk

8a

ORDER GRANTING MOTION TO DISMISS

Plaintiff, all inmates at Oahu Community Correce-

tional Center (‘‘OCCC’’), have filed pro se complaints

pursuant to 42 U.S.C. § 1983. The gravamen of plaintiffs’

complaints is prison overcrowding. Specifically, plain-

tiffs allege that corner cells in Module 1 at OCCC have

been used to house three inmates between the hours of

10:30 p.m. and 7:30 a.m. Plaintiffs allege that the floor

space of those cells is 80.33 square feet. This, plaintiffs

contend, deprives them of their eighth amendment free-

dom from cruel and unusual punishment.

It is important to note at the outset that the eighth

aniendment is not a proper basis for broad prison reform.

Legislatures and executives are charged with the responsi-

bility of making the myriad of policy choices concerning

prisons. See Bell v. Wolftsh, 441 U.S. 520, 562 (1979). The

federal judicial function is limited to identifying and rem-

edying constitutional violations. Rhodes v. Chapman, 452

U.S. 337, 352 (1981).

The Ninth Cireuit has been specific in identifying an

institution’s obligations under the eighth amendment. See,

e.g. Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.

1981). Overerowding itself is clearly not a violation of the

eighth amendment. Hoptowtt v. Ray, 682 F.2d 1237, 1249

(9th Cir. 1982). Moreover, ‘‘[i]f prisoners need not re-

main in their cells for a substantial part of the day, an-

alvsis of square footage in cells may be largely irrele-

vant.’’ Id.

These consolidated cases are governed by the Hopto-

wit line of cases. Plaintiffs have done nothing more than

alleve the nighttime tripling of inmates in one cell. They

9a

contend that the fact of three inmates in one cell at night

has led to increased stress, tension, communicable diseases

and confrontations. Even reading plaintiffs’ allegations

in a favorable light, see Thomas v. Younglove, 545 F.2d

1171 (9th Cir. 1976), these allegations are purely con-

clusory. See Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th

Cir. 1977). Assuming everything alleged by plaintiffs to

be fact, plaintiffs have not described conditions so shock-

ing or exreme as to violate suciety’s evolving standards of

decency or this Court’s sensibilities. See Hoptowit, 642

F.2d at 1246. Thus, while plaintiffs may be able to de-

seribe rebarbative conditions at OCCC, which make a stay

there uncomfortable in the extreme, is is clear that they

ean claim no eighth amendment violations.

The allegations do not state any violations of constitu-

tional rights under 42 U.S.C. § 1983. The complaints fail

to state a claim upon which relief can be granted.

IT IS THEREFORE ORDERED that defendants’

motion to dismiss is GRANTED.

DATED: Honolulu, Hawaii, December 21, 1983.

/s/ Samuel P. King

United States District Judge -

i |

10a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CIVIL NO. 83-977

JEFFREY R. MUELLER, et al.,

Plaintiffs,

: vs.

MICHAEL KAKESAKO, et al.,

Defendants.

CIVIL NO. 83-978

JOHN PAUL WILDER,

Plaintiff,

vs.

EDWIN T. SHIMODA,

Defendant.

CIVIL NO. 83-1067

EMMET AKAO, et al.,

Plaintiffs,

vs.

MICHAEL KAKESAKO, et a1,

Defendants.

Filed in the United States District Court

District of Hawaii

_ December 21, 1983

WALTER A.Y.H. CHINN, Clerk

lla

ORDER OF CONSOLIDATION

The complaints in these cases are substantially sim-

ilar. In the interests of judicial economy and quick resolu-

tion of disputes, and in order to avoid unnecessary cost

and delay, these cases will be consolidated pursuant to

Local Rule 206-1.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, December 20, 1983.

s/ Samuel P. King

United States District Judge

ee

12a

APPENDIX G

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMETT AKAO, ALLEN V. TRIPP and

GARRICK UMIAMAKA,

Plaintiffs-Appellants,

VS.

EDWIN T. SHIMODA, Administrator of

Oahu Community Correctional Center and

MICHAEL KANESAKO,

Corrections Division Administrator

Defendants-Appellees.

Filed in the United States District Court

District of Hawaii

November 20, 1987

WALTER A.Y.H. CHINN, Clerk

No. 84-1538

DC CV 83-1067 SPK

APPEAL from the United States District Court for

the District of Hawaii (Honolulu).

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for

the District of Hawaii (Honolulu) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this Cause be, and hereby is re-

versed and remanded.

13a

A TRUE COPY

ATTEST NOVEMBER 17, 1987

CATHY A. CATTERSON, Clerk of Court

by: /s/ OSCAR TAGLE, Deputy Clerk

Filed and entered June 19, 1987.

l4a

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMET AKAO, ALLEN V. TRIPP and

GARRICK UMIAMAKA,

Plaintiffs-Appellants,

v.

EDWIN T. SHIMODA, Administrator of

Oahu Connunity Correctional Center, and

MICHAEL KANESAKO,

Corrections Division Administrator,

Defendants-A ppellees.

No. 84-1538

D.C. No. CV 83-1067-SPK

ORDER

AMENDING OPINION AND

DENYING REHEARING

Argued and Submitted

April 13, 1987—San Franciseo, California

Filed June 19, 1987

Amended November 9, 1987

Before: J. Clifford Wallace, Anthony M. Kennedy and

Charles Wiggins, Cireuit Judges.

Per Curiam

Appeal from the United States District Court

for the District of Hawaii

Samuel P. King, District Judge, Presiding

The opinion filed in the above case on June 19, 1987,

is hereby amended as follows:

15a

The last paragraph is amended to read: ‘‘Upon issu-

=]

ance of our mandate, pro bono counsel is relieved from his

appointment.’’

The pane! as constituted above has voted to deny the

petition for rehearing and to reject the suggestion for re-

hearing en bane.

The full court has been advised of the suggestion for

rehearing en bane, and no judge of the court has requested

a vote on the suggestion for rehearing en bane. Fed. R.

App. P. 35(b).

The petition for rehearing is denied, and the sugges-

tion for rehearing en bance is rejected.

16a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAIL

EMMETT AKAO,

ALLEN V. TRIPP,

GARRICK UMIAMAKA,

Plaintiffs ;

VS.

MICHAEL KAKESAKO,

Corrections Division Administrator,

EDWIN T. SHIMODA,

Administrator of Oahu Community

Correctional Center,

Defendants.

Civil No. 83-1067

FILED IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF HAWATI

OCT. 7, 1983

WALTER A.Y.H. CHINN, CLERK

COMPLAINT

I. JURISDICTION

1. This is a civil action authorized by 42 U.S.C. 1983

to redress the deprivation, under color of state law, of

rights secured by the United States Constitution. The

court has jurisdiction under 28 U.S.C. § 1343. Plaintiffs

seek declaratory relief pursuant to 28 U.S.C. 2201 and

2202.

l7a

II. PLAINTIFFS

2. Plaintiff Emmet Akao is and was at all times men-

tioned in this complaint a prisoner of the state of Hawaii

in the United States of America in the custody of The

Department of Corrections. He is presently confined in

the Oahu Community Correctional Center at 2199 Kame-

hameha Highway, Kalihi, Hawaii, 96819.

3. Plaintiff Allen Y. Tripp is and was at all times

mentioned in this complaint a prisoner of the state of

Hawaii in the United States of America in the custody of

The Department of Corrections. He is presently confined

in the Oahu Community Correctional Center at 2199 Kame-

hameha Highway, Kalihi, Hawaii, 96819.

4. Plaintiff Garrick Umiamaka is and was at all times

mentioned in this complaint a prisoner of the state of

Hawaii in the United States of America in the custody of

The Department of Corrections. He is presently confined

in the Oahu Community Correctional Center at 2199 Kame-

hameha Highway, Kalihi, Hawaii, 96819.

Il, DEFENDANTS

5. Defendant Michael Kakesako is the Director of

the Corrections Division of the Department of Social Serv-

ices and Housing. He is legally responsible for the overall

operation of the Department of Corrections and each insti-

tution under its jurisdiction; including Oahu Community

Correctional Center.

6. Defendant Edwin T. Shimoda is the Administrator

of Oahu Community Correctional Center. He is legally

responsible for the welfare of all the prisoners of that

prison.

res.

18a

IV. FACTS

7. On or about November 10, 1982, in Module-1, at

the Oahu Community Correctional Center, the population

was 24 inmates. Staff informed plaintiffs that an addi-

tional 22 inmates were to be added to the population of

Module-1. So the population was doubled from the de-

signed maximum capacity of 24 residents to 46 inmates.

This was done by taking out the single man beds and re-

placing them with steel framed double bunks in each of the

24 rooms, bringing maximum capacity up to 48.

8. Then on or about June 20, 1983, in Module-1, at

the Oahu Community Correctional Center, the population

was 48, the staff informed plaintiffs that an additional 8

men were to be now housed in Module-1. Facility person-

nel would do this by tripling up the 8 corner rooms which

at that time housed two men. ‘This meant that third man

in each of the corner rooms would be sleeping on the floor.

The remaining 16 rooms would still house only two men.

9. The available space in these corner rooms was

architecturally designed for one man.

10. The floor space of the corner rooms is 80’4’’

square feet. There are a toilet, steel double bunk and a

sink/desk combination that use up a good deal of the room

space. Of the limited floor space, the addition of a third

mattress on the floor utilizes most of the open area. This

restricts movement drastically. The remaining space is

inadequate for the storing of inmates personal belongings.

(see exhibit A attached hereto)

11. The volume of air in the corner rooms is 637°4’’

cubic feet, which is not even up to minimum standards for

2 people, let alone three.

19a

12. Inmates in Module-l, are housed at night for 9

consecutive hours from 10:30 P.M. until 7:30 A.M. the

following day. Due to population increase in Module-1,

there is an increase in stress, tension, communicable dis-

eases, and a high increase in confrontations between in-

mates.

13. Plaintiffs have been told this is a permanent

move and in the future the middle rooms could triple.

14. Also it is general knowledge that the facility is

now considering using the recreation area on the upper

floor levels in the module to house inmates, at a later date

if the need arises.

VI. FIRST CAUSE OF ACTION

15. Defendants and their agents, by housing 3 men

in a room designed for one, violated plaintiff’s rights to be

free from cruel and unusual punishment of the Eighth

amendment to the United States Constitution.

VIL. EQUITY

16. The plaintiffs have no plain, adequate or com-

plete remedy at law to redress the wrongs described here-

in. Plaintiffs have been and will continue to be irrepar-

ably injured by the conduct of the defendants unless the

court grants the declaratory and injunctive relief which

plaintiffs seek.

VIII. RELIEF

WHEREFORE, plaintiffs respectfully request that

this court enter a judgment granting them relief:

20a

1. A declaratory judgment that the defendants’ acts,

policies and practices herein described and complained of

violated plaintiff’s rights under the United States Con-

stitution.

2. A preliminary and permanent injunction which:

a) Prohibits the defendants, their snecessors in of-

fice, agents and employees and all other persons in active

concert and participation with them from over crowding

plaintiffs and housing 3 men in a room.

b) Prohibits defendants, their successors in office,

agents and employees and all other persons in active con-

cert and participation with them from transferring plain-

tiffs to any other institution, without plaintiff’s express

consent, during the pendency of this law suit, or otherwise

retaliating against plaintiffs in any way.

ce) Requires defendants to pay jointly, damages of

$10,000.00.

d) Requires defendants to pay jointly punitive dam-

ages of $10,000.00.

3. Plaintiffs respectfully request such other and fur-

ther relief that the court deems to be appropriate and just.

Respectfully submitted,

/s/ Emmet Akao

Emmet Akao, pro se

/s/ Allen V. Tripp

Allen V. Tripp, pro se

/s/ Garrick Umiamaka

Garrick Umiamaka, pro se

Dated: 9/29/83

Pla

Verification

Emmet Akao, Allen V. Tripp, Garrick Umiamaka, be-

ing first duly sworn according to law, deposes and says

that he resides at Oahu Community Correctional Center,

2199 Kamehameha Highway, Kalihi, Hawaii, 96819; that

he is the plaintiff in the foregoing complaint; and that he

has read the foregoing complaint and knows the contents

thereof and that the same are true and correct of his own

knowledge except as to the matters therein stated to be

alleged on information and belief, and as to those matters

he believes to be true.

/s/ Emmet Akao

Emmet Akao, pro se

Qahu Community Correctional

Center

2199 Kamehameha Highway

Kalihi, Hawaii 96819

/s/ Allen V. Tripp

Allen V. Tripp, pro se

Oahu Community Correctional

Center

2199 Kamehameha Highway

Kalihi, Hawaii 96819

/s/ Garrick Umiamaka

Garrick Umiamaka, pro se

Oahu Community Correctional

Center

2199 Kamehameha Highway

Kalihi, Hawaii 96819

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24a

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMET AKAO, et. al.,

Plaintiffs,

VS.

MICHAEL KAKESAKO, et. al.,

Defendants.

CIVIL NO. 83-1067

NOTICE OF MOTION; MOTION TO DISMISS;

MEMORANDUM OF LAW; APPENDIX A

Hearing: Dec. 27, 1983; 10:30 a.m.

Honorable Harold M. Fong

FILED IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

DEC. 1, 1983

at 10 o’clock and 05 min. a.m.

WALTER A. Y. H. CHINN, CLERK

NOTICE OF MOTION

TO: EMMETT AKAO

ALLEN V. TRIPP

GARRICK UMIAMAKA

PLEASE TAKE NOTICE that the fol’ »wing Motion

to Dismiss will be heard before the Honorable Harold M.

Fong, United States District Judge, in his courtroom in

the United States Courthouse, 300 Ala Moana Blvd., Hono-

25a

lulu, Hawaii, on Tuesday, the 27th day of December, 1983,

at 10:30 o’clock a.m. or soon thereafter as counsel may be

heard.

MOTION TO DISMISS

Defendants, through their undersigned attorneys,

hereby move this honorable Court to dismiss the above-

entitled action for failure to state a claim against them

upon which relief can be granted.

This Motion is based upon Rule 12(b)(6), Federal

Rules of Civil Procedure, and on the ground that no claims

are stated which arise under the Constitution or Laws of

the United States.

Dated: Honolulu, Hawaii, Nov. 30, 1983.

TANY S. HONG

Attorney General

State of Hawaii

/s/ JAMES H. DANNENBERG

Deputy Attorney General

Attorneys for Defendants

MEMORANDUM OF LAW

INTRODUCTION

Plaintiffs are convicted inmates incarcerated at Oahu

Community Correctional Center (‘‘OCCC’’). Their sole

cause of action relates to the allegation that the corner

cells in Module 1 at OCCC have, since June 20, 1983, been

used to house three inmates between the hours of 10:30

26a

p.m. and 7:30 a.m. The floor space of such cells is alleged

to be 80’4’’.! For obvious reasons, the complaint fails to

state a claim upon which relief can be granted.

CROWDING AND THE EIGHTH AMENDMENT

Defendants do not deny that various circumstances

beyond their control have led to crowded conditions at

OCCC —- and at virtually every other American prison.

These crowded conditions have been the source of defend-

ants’ concern for some time, and because of that concern

there has been extensive remodeling and renovation at

Hawaii prisons, and substantial funds have been obtained

for anew prison. It is clear, however, at least in the Ninth

Circuit, that mere overcrowding is not a denial of rights

under the Highth or any other amendment to the Constitu-

tion. Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir.

1982). Lee v. Leyve, Civil No. 83-0438, U.S.D.C., D. Haw.

(Nov. 23, 1983, King, C.J.). (Attached as Appendix A.)

The Hoptowtt court specifically reversed the district

court’s finding of unconstitutionality, which ‘‘rel[ied] ex-

clusively on per capita square footage recommendations. ’’

Id. at 1249. Only when specific circumstances, in and of

themselves, become so shocking as to independently consti-

tute Eighth Amendment violations may the courts find for

The Court’s attention ~-is directed to an identical complaint

filed by three other inmates in Mueller, et al v. Kakesako,

et al., Civil No. 83-0977. Defendants’ Motion to Dismiss is

presently set before this Court on December 27, 1983, at

10:30 a.m.

Plaintiff Akao also has filed complaints in Civil Nos. 83-0999

and 83-1069.

2ia

plaintiffs.2 The ‘‘totality of cireumstances’’ method of

analysis was specifically rejected by the Ninth Cireuit

in Hoptowtt and in Wright v. Rushen, 642 F.2d 1129, 1133

(9th Cir. 1981). Accord, Union County Jail Inmates v.

DiBuono, 713 F.2d 984, 999 (3rd Cir. 1983); Ruiz v. Estelle,

679 F.2d 1118, 1136 (5th Cir. 1982). In Ruiz v. Estelle, for

example, the court held that ‘‘ Neither the number of in-

mates in one cell nor the amount of space provided in a

dormitory alone determines whether confinement is cruel

and unusual.’’ /d. at 1146. Likewise, the Third Circuit

in Union County Jail Inmates v. DiBuono, supra at 999

reversed the district court’s ruling that:

the stark reality is that 30 square feet of daytime space

or 19.5 square feet of sleeping space fails to meet any

contemporary standard of decency especially in light

of the impact overcrowding has had on visitation,

recreation and time off the tier.

These holdings are all consistent with the Supreme Court’s

holdings in Bell v. Wolfish, 441 U.S. 520 (1979) (pretrial

inmates) and Rhodes v. Chapman, 452 U.S. 337, 346 (1981)

(sentenced inmates), which held, inter alia, that no ‘‘static

tests,’’ such as square footage, would suffice to determine

whether prison conditions violated the Eighth Amend-

ment.?

2 It is difficult to conceive how the allegations contained in

paragraph 12—“an increase in stress, tension, communic-

able ‘diseases, and a high increase in confrontations be-

tween inmates’’—could satisfy the Hoptowit test. Plaintiffs

do not even allege that they have been affected by crowd-

ing.

Of course, by plaintiffs’ own measurements, they have con-

siderably more space than the inmates in Union County.

28a

Indeed, even if limited square footage were the source

of constitutional violation, plaintiffs’ complaint, at para-

graph 12, makes clear that they are required to suffer such

crowding only during sleeping hours. Since by their own

admission they are out of their cells at least 15 hours per

day, the test of Hoptowit v. Ray, supra, at 1249, that out-

of-cell time is relevant in any Kighth Amendment inquiry,

is doubly satisfied.*

Finally, it is no small point that plaintiffs have not

alleged that they are housed in Module 1 or that they are

housed in corner rooms. On the face of the complaint they

have no standing to litigate. City of Los Angeles v. Lyons,

— U.S. —, 75 L.Ed.2d 675 (1983); 7ileston v. Ullman, 318

U.S. 44 (1948).

CONCLUSION

It is clear that plaintiffs are displeased with crowded

conditions at OCCC. So are defendants, but_such condi-

tions simply do not reach the level of constitutional depri-

vation. As Justice Powell wrote for the Court in Rhodes

v. Chapman, 452 U.S. at 347:

To the extent that such conditions [crowding] are re-

strictive and even harsh, they are part of the penalty

that criminal offenders pay for their offenses against

society.

: In fact, if required, defendants will prove that Module 1 is

a large and modern (less than three years old) housing unit

built to federal specifications. It is well furnished, car-

peted, and air conditioned, and it contains such amenities

as a pool table, television, and microwave oven. Although

admittedly crowded, it represents state of the art prison

construction. and one might easily misidentify it as a col-

lege dorm.

29a

For the reasons set out above, defendants request that

the court dismiss the complaint for failure to state a claim

upon which relief can be granted.

DATED: Honolulu, Hawaii, Nov. 30, 1983.

TANY 8S. HONG

Attorney General

State of Hawaii

/s/ JAMES H. DANNENBERG

Deputy Attorney General

Attorneys for Defendants

APPENDIX A

TO MOTLON TO DISMISS

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWATI

JOHN G. LEEK, aka

GREGORY H. PASSAILAIGUE,

Plaintiff,

vs.

SANDRA LEYVE, ete., et. al.,

Defendants.

CIVIL NO. 83-0488

FILED IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

NOV. 23, 1983

at 9 o’clock and 25 min. a.m.

WALTER A.Y.H. CHINN, CLERK

30a

ORDER GRANTING MOTION TO DISMISS

Plaintiff filed the herein Complaint on April 19, 1983.

Plaintiff, a sentenced felon detained at Oahu Community

Correctional Center (OCCC), was a pretrial detainee at

the facility for approximately eleven months. The allega-

tions in the Complaint relate to events and conditions

occurring while he was a pretrial detainee.

Even if a pretrial detainee is presumed innocent, de-

fendants need not meet the high standard of showing com-

pelling necessity for their actions, instead, they need only

show that the imposed conditions are not punishment.

Bell v. Wolfish, 441 U.S. 520 (1979). If the conditions

imposed are incident to some legitimate public purpose,

such as security or order, and the restrictions are not ex-

cessive for that purpose, then the conditions do not amount

to punishment. Jd. Presently, the alleged conditions must

be examined to determine whether they constitute punish-

ment.

Densely populated cells alone do not amount to a

denial of constitutional rights. Jd.; Hoptowit v. Ray, 682

F.2d 1237 (9th Cir. 1982). Detainees are allowed time

outside their cells several times a week. Furthermore, the

Complaint does not allege any specific deprivations as a

result of overcrowding which rise to the level of a constitu-

tional claim. Holding pretrial detainees is necessary to

insure their presence at trial and the crowded conditions

themselves are not excessive.

Plaintiff alleges communication problems such as lack

of access to the mails and telephone. He claims that in

some of these instances these problems hindered communi-

3la

cations with his attorney. These hindrances were neces-

sary for security reasons and do not rise to Sixth Amend-

ment stature. The system provided by authorities for

access to the court and attorneys is adequate. The prison

authorities provide ample time for attorney visitation.

Furthermore, the system provides a stamp for free mailing

of documents once a week. Prison authorities also provide

a system for telephone use. Also, the Court notes that

plaintiff has been able to file numerous motions in this

case, in addition to the original Complaint.

Reductions of telephone and visitation privileges were

caused on occasion by disruptions in the facility. Actions

taken by prison authorities to resume and maintain secur-

ity and order required reductions of communications on

occasion. Not only did the reductions serve a legitimate

public purpose, but they were necessary and were not ex-

cessive.

Plaintiff complains of denial of access to the prison

law library. Access to law libraries is only one of a num-

ber of constitutionally permissible means of access to the

courts. United States v. Wilson, 690 F.2d 1267 (9th Cir.

1982). Availability of legal assistance at government ex-

pense, if required, is a constitutionally permissible means

of access to the courts. Jd. Plaintiff was adequately

represented by counsel during the period of time in ques-

tion. Thus, plaintiff’s allegations of constitutional viola-

tions for lack of access to the prison law library are merit-

less.

Even if true, the conditions stated in plaintiff’s med-

ical complaints do not attain the level of violations of con-

stitutional rights. Constitutional violations for medical

32a

mistreatment do not arise unless medical problems are life-

threatening or ‘‘shock the conscience.’’ Estelle v. Gamble,

429 U.S. 97 (1976). Plaintiff does not allege such condi-

tions.

The allegations do not state any violations of constitu-

tional rights under 42 U.S.C. § 1983. The Complaint fails

to state any claim upon which relief can be granted.

Accordingly, IT IS HEREBY ORDERED that the

Motion to Dismiss is GRANTED.

DATED: Honolulu, Hawaii, November 23, 1983.

/s/ Samuel P. King

United States District Judge

emma

ne en ee a eee

33a

APPENDIX K

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMET AKAQO, et al.,

Plaintiffs-Appellants,

vs.

EDWIN T. SHIMODA, ete., et. al.,

Defendants-A ppellees.

NO. 84-1538

DC# &83-1067-SPK

Hawaii (Honolulu)

FILED

June 21, 1985

PHILLIP B. WINBERRY

Clerk, U.S. Court of Appeals

MOTION TO DISMISS APPEAL FOR MOOTNESS

EXHIBIT A

AFFIDAVIT OF JAMES H. DANNENBERG

PROPOSED ORDER

CERTIFICATE OF SERVICE

CORINNE K. A. WATANABE

Acting Attorney General

State of Hawaii

JAMES H. DANNENBERG

Deputy Attorney General

State Capitol

Honolulu, Hawaii 96813

Telephone: 548-4740

Attorneys for Defendants-Appellees

34a

MOTION TO DISMISS APPEAL FOR MOOTNESS

Defendants-Appellees, through their undersigned at-

torneys, hereby move this Court to dismiss the above-en-

titled appeal because of mootness.

This motion is made pursuant to Rule 27, F.R.A.P.

and Rule 6, Rules of the United States Court of Appeals

for the Ninth Cireuit, and is based upon the attached af-

fidavit of counsel and Exhibit A appended thereto. The

ground for this motion is that a consent decree was en-

tered on June 12, 1985, in Spear, et al. v. Artyosht, et al..

U.S.D.C. Civil No. 84-1104 (D. Haw.), which covers the

conditions complained of in the instant appeal; appellants

in this appeal are members of the plaintiff class in Spear,

and the resolution of identical issues by consent makes the

issues in the instant appeal moot.

Dated: Honolulu, Hawaii, June 19, 1985

CORINNE K. A. WATANABE

Acting Attorney General

State of Hawaii

/s/ James H. Dannenberg

Deputy Attorney General

Attorney for Defendants-Appellees

EXHIBIT A

MARY E. MCCLYMONT

ALVIN J. BRONSTEIN

National Prison Project of the American

Civil Liberties Union Foundation

Suite 402, 1346 Connecticut Avenue, N. W.

Washington, D. C. 20036

(202) 331-0500

- nae ean lin tg hl ella eP te RP Ne aioe Ne ALND WABRE Mtn RS wii

35a

MICHAEL D. WILSON

Suite 610, 333 Queen Street

Honolulu, Hawaii 96813

(808) 526-0811

MARK S. DAVIS

10 Marin-Street

Honolulu, Hawaii 96817

(808) 524-7500

PAMELA J. BERMAN

Suite 606, 1314 So. King Street

Honolulu, Hawaii 96814

(808) 526-9781

ERIC A SEITZ

Suite 105, 547 Halekauwila Street

Honolulu, Hawaii 96813

(808) 533-7434

‘DANTEDR. FOLEY

American Civil Liberties

Union of Hawaii

33 South King Street, Suite 412

Honolulu, Hawaii 96813

(808) 545-1722

Attorneys for Plaintiffs

FILED IN THE

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

June 12, 19085

Walter A.Y.H. Chinn, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

Civil No. 84-1104

36a

Civil No. 84-1104

AGNES SPEAR, et al.,

Plaintiffs

v.

GEORGE ARIYOSHI, et al.,

Defendants

CONSENT DECREE

By agreement of the parties, the following consent

decree shall be submitted for approval by the Court to re-

solve the issues being litigated in CA No. 84-1104 and the

cases consolidated therein by the Court. The parties here-

in now waive hearing and agree to the provisions con

tained herein as follows:

I. GENERAL PROVISIONS

A. This agreement is entered into to resolve an ex-

isting dispute between plaintiffs, individually and those

similarly situated as defined below, and the defendants

concerning appropriate conditions in and policies, proce

dures and practices necessary to operate the Oahu Com-

munity Correctional Center (OCCC) and the Hawaii

Women’s Correctional fI'acility (HWCEF) in a manner

which will satisfy federal constitutional standards. This

agreement satisfies and resolves the claims of the class

of plaintiffs, excepting only any attorney’s fees and cosis

,

of plaintiffs’ counsel. Defendants reserve the right to

contest any application made by plaintiffs for fees and

costs.

B. Defendants do not admit nor is there any finding

that anv constitutional rights of plaintiffs have been vio

lated.

37a

C. The plaintiffs brought this suit as a class action

seeking to represent members of the class for purposes

of securing declaratory and injunctive relief. For pur-

poses of this agreement, the class shall be those persons

which the court has previously identified and certified as

members of the class pursuant to its order dated Septem-

ber 26, 1984. The class includes those inmates who are

confined at the Oahu Community Correctional Center

(OCCC) and the Hawaii Women’s Correctional Facility

(HWCE), or who may be so confined in the future.

D. The defendants agree to operate all institutions

housing class members in a manner consistent with the

terms of this agreement, and the Constitution of the Unit-

ed States. This agreement in no way constitutes an ad-

judication or finding of any present or past unlawful prac-

tice by the defendants, it being fully understood that the

defendants unequivocally deny that any such acts or prac-

tices exist or have occurred. The parties have entered

into this Decree solely as a means to put a reasonable end

to the controversy and to avoid the costs, time and risks

which litigation would involve for both parties.

KE. Defendants and plaintiffs shall agree upon a

panel of experts for each of the substantive areas covered

in this Decree. Each panel shall consist of a representa-

tive of the Division of Corrections, and two experts who

are designated by the parties. The panel shall study the

issues and develop specific implementation plans for the

various substantive areas set forth in Sections III, IV,

and V of this Decree within the periods of time and pur-

suant to the guidelines and principles as stated herein.

F. The implementation plans shall contain objec-

tives, timetables, and mechanisms for action. In the event

38a

of a dispute amongst the panel members, the disputed is-

sues shall be presented to a mediator for resolution. The

parties have agreed upon Allen Breed as the mediator.

The parties shall be given notice of any issue submitted

to the mediator. Upon completion the plans shall be sub-

mitted to the parties for their review and to the Court

for approval and incorporation into the Decree. Any ob-

jections to completed plans by either party shall be sub-

mitted to the Court for resolution within thirty (30) days

after their receipt.

G. Beginning April 1, 1986, the panels shall conduet

semi-annual inspections and prepare reports indicating the

state of defendants’ compliance with the provisions of the

respective plans which reports shall be provided to the

Court and the parties. These inspections shall continue

until December 1, 1988 unless a particular panel shall have

certified that the defendants have achieved full compliance

in their particular substantive area for one year.

H. The parties further agree that any dispute be-

tween panel members or the parties concerning implemen-

tation or compliance issues shall first be submitted to the

mediator for resolution. These issues shall be submitted

to the Court only if they have not been resolved by the

mediator.

I. The Court shall retain jurisdiction in this case

until all plans incorporated herein are fully implemented

and satisfactory and sustained compliance has been dem

onstrated by defendants in all substantive areas. At such

time the defendants may move the Court for abrogation

of this Decree in whole or in part. Nothing stated herein

shall prevent plaintiffs from moving the Court for addi-

tional or further relief upon a claim of non-compliance.

39a

J. Until the Court relinquishes jurisdiction in this

case Counsel for plaintiffs shall have access to and shall

receive copies of documents which effectuate the imple-

mentation of this Deeree. Counsel for plaintiffs shall

have aecess to all plaintiffs at reasonable times and under

reasonable circumstances. Plaintiffs’ counsel shall have

access to all staff and institutions, upon reasonable notice

to defendants’ counsel. Defendants’ counsel may be pres-

ent at any meetings between plaintiffs’ counsel and defen-

dants’ staff.

K. Defendants shall immediately explain the terms

of this Deeree to all of their agents, servants, representa-

tives, and employees, including institutional staff, correc-

tional officers and other personnel, in order to assure their

understanding of the requirements of this Decree and tlie

necessity for strict compliance herewith. Defendants shail

require strict compliance with this Decree by said persons.

Defendants shall require continued training of all staff

regarding this Decree.

L. Members of the plaintiff class agree not te engage

in any acts which would result in non-compliance with any

terms of this Consent Decree through no fault of the de-

fendants. Members of the plaintiff class will assist the

defendants in maintaining public property in the best con-

dition possible by not damaging or destroying public prop-

erty in the institutions.

M. Notice to the plaintiff class shall be provided in

accordance with the notice provisions approved by the

Court and appended hereto.

N. By entering into this Decree, plaintiffs and mem-

bers of the plaintiff class are not waiving any rights to

TT

aii

40a

pursue individual claims for declaratory, injunctive, and/

or monetary relief. The only claims against defendants

settled herein are claims for injunctive relief of a general

nature as detailed in the complaint filed in this ease and

which are applicable to more than the individual cireumn-

stances of a particular plaintiff class member.

Q. Unless specific provision for extension is other-

wise made in this Decree, any timetable proposed in this

Decree may be subject to extension by the Court upon a

showing of reasonable grounds for such extension by the

defendants so long as the need for delay is not caused by

the neglect or dereliction or actions of defendants. Plain-

tiffs reserve the right to object in good faith, and to op-

pose any requests for extension of time by the defendants.

P. The parties agree that nothing in this Decree is

intended to prevent defendants from implementing new

programs or changes in physical conditions which benetit

plaintiffs; nor is the Decree intended to, and it shall not,

have the effect of decreasing or abrogating the rights, pro-

grams or conditions which existed prior to this Decree

pursuant to defendants’ policies, procedures or other law-

suit settlements; nor shall it abrogate any substantive

rights or procedural protection plaintiffs may now have

or hereafter acquire under state or federal statutes. The

defendants shall carry out every provision of this Decree

in good faith.

Il. POPULATION

OCCC

A. The defendants agree to reduce the population of

the Oahu Community Correctional Center (OCCC) to a

number no greater than 1018 by December 15, 1987, the

4la

date presently scheduled for the completion and occupancy

of the Halawa Medium Security Facility (HMSF). For

purposes of this paragraph, OCCC shall include all of the

housing units set forth in paragraph B below. The maxi-

mum population of 1018 shall not be exceeded after this

date. The maximum population figures for OCCC are de-

rived from a study commissioned by defendants and com-

pleted in 1983 by Dr. Allen Ault (incorporated herein by

reference). Increases from the original Ault figures are

as a result of additional housing construction at OCCC

since 1983, and the parties agree that revision of the maxi-

mum population level as a result of any future construc-

tion at OCCC shall be made consistent with the criteria

set out by Dr. Ault or otherwise by agreement of the par-

ties.

B. The defendants agree that the following maximum

population figures for the following respective housing

areas shall not be exceeded on or after December 16, 1987:

1) Old cellblock (Block A): 226

Dormitories in Block A shall house no more

than the following numbers of inmates:

Dormitory 1—21

Dormitory 2—21

Dormitory 3—23

Dormitory 4—21

Dormitory 5—21

Dormitory ~“—2:

Dormitory 7—15

Dormitory 8—23

2) Old Administration Building (Block B): 73

3) Keehi Annex—84

4) Panabode—32

aici iain

5) Laumaka—15

6) Holding Unit—36

7) Module 1—48

Module 2—48

Module 3—60

Module 4—60

Module 7—24

Module 8—24

Module 11—48

Module 13—48

Module 17—48

Module 18—72

Module 19—72

C. The following housing provisions shall take effect

at the times set forth herein and shall not be abrogated in

the future.

1) Effective immediately, except under extraordi-

nary circumstances, inmates in the module areas may be

multiple celled only if they are confined to their cells for

no more than ten (10) hours a day.

2) <As of September 15, 1985:

a) no inmate shall be required to sleep on a

mattress on the floor due to lack of space for

a bunk in Block A.

b) asa general rule, no mentally ill or dis-

turbed inmate shall be housed in Block A or

the Holding Unit until the panel created un-

der section III herein has completed its plan.

3) No later than December 15, 1987 shall:

a) any inmate be multiple-celled in Block A

or the Holding Unit.

43a

b) any inmate classified as administrative

or management segregation, disciplinary segrega-

tion or protective custody be housed other than

in single cells.

¢) any inmate be required to sleep on a mat-

tress on the floor due to lack of space for a bunk

in any housing unit.

d) any more than two (2) inmates be housed

in any single room in the module areas.

4) Notwithstanding any of the foregoing any two

inmates may elect voluntarily to be double-celled.

D. By October 1, 1985, the population at OCCC shall

not exceed 1270.

Ki. The defendants agree that no dormitory or cor-

ridor unit in Block A shall be used for inmate housing

after August 1, 1988 unless such housing unit therein is

renovated and brought into compliance with all relevant

environmental standards of the American Correctional As-

sociation (Standards for Adult Correctional Institutions)

and the American Public Health Association (Standards

for Health Services in Correctional Institutions).

HWCF

EK. The defendants agree that the maximum popula-

tion figures for the respective housing areas at HWCF

shall be determined by the Corrections panel designated in

paragraph V(A) below on or before October 1, 1985 and

the population limits as determined by the panel shall be-

come effective on or before December 15, 1985. The hous-

|

44a

ing areas referred to herein are Hookipa Cottage, Maluhia

Cottage, and Interim Facility.

F. The Detention Unit at HWCF in its present con-

figuration shall no longer be used for the housing of in-

mates as of July 1, 1985 except for limited use as ‘‘time-

out’’ housing for no more than 48 hours. In addition, the

continued use of this Unit for such purpose shall be re-

viewed and finally determined by the Medical and Correc-

tions panels established in this Deeree by October 1, 1985.

G. The maximum population figures set forth in this

Section shall be effectuated through, but not limited to, a

combination of the following measures:

1) Transfer of inmates to other institutions;

2) a review of the sentenced population by the Hawaii

Paroling Authority to determine the appropriateness

of parole in individual eases; 3) a review by the Cir-

euit Court of the non-sentenced population to deter-

mine the appropriateness of present bail levels; and

4) a review of furlough eligibility by the Corrections

Division for all appropriate inmates. The reduction

of the OCCC population by the agencies described

herein shall be coordinated by the Governor’s Task

Foree on Prison Overerowding and the defendants

shall make a good faith effort to continually reduce

the population between October 1, 1985 and December

15, 1987. It is understood and agreed by parties that

no inmate will be released prior to the expiration of

his or her sentence if it is determined that he or she

represents a danger to society.

45a

Il. MEDICAL AND MENTAL HEALTH

SERVICES

A. A medical/mental health panel is hereby created

and shall consist of one representative from the Division

of Corrections and Ronald Shansky, M.D., and Armond

Start, M.D. The panel in consultation with selected repre-

sentatives of the Hawaii Medical Association, the Hawaii

Psychiatrie Society, and the Hawaii Psychological Asso-

ciation, shall evaluate medical and mental health needs at

OCCC and HWCF. The panel shall develop a specific

plan to address those needs and to ensure adequacy in,

inter alia, the following areas: physician, dental, mental

health and nursing coverage; emergency care; training of

medical staff and correctional officer staff as to medical

and mental health related areas; development of policies,

procedures and protocols; medication distribution and

pharmacy services; denial coverage; medical and mental

health admission screening; provision of physical exami-

nations; provision of special therapeutic diets and cover-

age by a dietician; medical records and sufficient records

personnel; housing, assessment, and treatment of mentally

disturbed and suicidal inmates; and a sick call system and

follow-up procedures to ensure routine access to medical

eare. The plan shall be completed by October 1, 1985 and

shall be fully implemented August 1, 1986.

IV. FOOD SERVICES AND ENVIRONMENTAL

HEALTH AND SAFETY

A. A food services and environmental health panel

is hereby created and shall consist of one representative

of the Division of Corrections and Ward Duel and Jerro!d

Michael. The panel shall evaluate food services operations

46a

at OCCC and HWCF and develop a specifie plan in order

to address and ensure adequacy in, iter alia, the follow-

areas: staff and inmate worker training in the food ser-

vice area; staff supervision; food storage, transportation

and preparation; disliwashing procedures and maintenance

of safe temperatures; record keeping and written policies

and procedures; the proper feeding of inmates in all satel-

lite feeding operations; and appropriate upkeep and clean-

ing of equipment and facilities. The plan shall also pro-

vide for regular inspections by appropriate state authori-

ties and for daily inspections by the food service staff at

the prisons.

B. The panel shall also develop a specific plan to ad-

dress and ensure adequacy at OCCC and HWCF in all

aspects of the following environmental health and safety

areas: ventilation, lighting, plumbing and sanitary facili-

ties, electrical, fire safety, general sanitation, vermin con-

trol, bedding, laundry and general preventative institu-

tional maintenance. The plan shall also provide for regu-

lar inspections by appropriate state and local authorities

as well as by maintenance personnel.

©. The food service and environmental plans shall

be completed by October 1, 1985 and shall be fully imple-

mented by August 1, 1986.

D. The panel, in developing the aforementioned

plans, shall be guided by the relevant standards of the

ACA, the APHA and the National Fire Protection Asso-

ciation.

V. CORRECTIONS

A. A corrections panel is hereby created and shall

consist of one representative from the Division of Correc-

47a

tions and Patrick McManus and Jerry Enomoto. The

panel shall evaluate correctional service at OCCC and

HWCF. The panel shall develop a specific plan to address

needs and ensure adequacy in, imfer alia, the following

areas: security staffing and training, classification and

inmate activity. In addition, the defendants agree that the

hours for inmate recreation shall hereafter be no less than

what is provided under the current schedule, a copy of

which is appended hereto.

B. The pian shall be completed by October 1, 1985

and shall be fully implemented by August 1, 1986.

C. The panel, in developing their plan, shall be

guided by the relevant standards of the ACA.

VI. MODIFICATION

This consent decrees hall be approved by the Court

with the provision that the Court has the power to modify

the Decree upon proper motion for modification by one or

both of the parties or their successors and after notice and

hearing before the Court.

Agreed to this 12 day of June, 1985.

/s/ James H. Dannenberg

Deputy Attorney General

/s/ Mary E. McClymont

ALVIN J. BRONSTEIN

National Prison Project of the

American Civil Liberties

Union Foundation, Ine.

4Xn

MICHAEL D. WILSON

MARK 8S. DAVIS

PAMELA J. BERMAN

ERIC A. SEITZ

DANIEL R. FOLEY

Counsel for ACLU of Hawaii

Foundation

Counsel for Plaintiffs

APPROVED AND SO ORDERED:

/s/ Spencer Williams

UNITED STATES DISTRICT JUDGE

AGNES SPEAR, et al., individually and on behalf of

all other persons similarly situated, Plaintiffs, vs.

GEORGE ARIYOSHI, et al., Defendants—Civil No.

84-1104--STIPULATION OF PARTIAL SETTLE-

MENT AND ORDER.

DEPARTMENT OR SOCIAL SERVICES

AND HOUSING

CORRECTIONS DIVISION

Oahu Community Correctional Center

MEMORANDUM

TO All Concerned

SUBJECT Revised Recreation Schedule

Effective June 3, 1985.

Date June 3, 1985.

FROM /s/ Deanna Espinas,

ASSA

Attached is the revised schedule for Recreation Field, Rec-

reation Hall, and Courtyard. Please note that only the

Recreation Unit has authority to cancel the field or hall

activity. They will contact Central Control to inform

49a

them of any cancellation. Reports of recreational activi-

ties and cancellations will be submitted to OCA via ASSA.

We would appreciate your assistance in this matter.

Submitted by:

/s/ Mareus Dacanay

Recreation Unit

Noted: /s/ Fred Ragasa June 4, 1985

Date

Noted: /s/ Miles Murakami June 3, 1985

Date

Approved: /s/ Edwin T. Shimoda June 3, 1989

Date

50a

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~RECREATION FIELD SCHEDULE

Monday

Module 11

Module 13

Module 18

12:30 noon Module 4

Module 19

B Block

Module 17

Module 1

Module 2

Module 3

Annex

Tuesday

Module 4

Module 19

Module 11

Module 13

Module 18

Module 1

Module 2

Module 3

B-Block

Module 17

Annex

Wednesday

Module 1

Module 2

Module 3

Module 4

Module 19

B-Block

Module 17

Module 11

Module 13

Module 18

Annex

Thursday

Module 11

Module 13

Module 18

Module 1

Module 2

Module 3

B-Block

Module 17

Module 4

Module 19

Annex

Friday

Module 4

Module 19

Module 1

Module 2

Module 3

Module 11

Module 13

Module 18

B-Block

Module 17

Annex

DEPARTMENT OF SOCIAL SERVICES AND HOUSING

CORRECTIONS DIVISION

OAHU COMMUNTY CORRECTIONAL CENTER

MEMORANDUM

To All Concerned

SUBJECT Revised Facility Movie Schedule

Date May 30, 1985.

FROM Rec. Unit (Marcus Docanay)

Effective 6/10/85, every living area will view two movies per month as

scheduled by the Rec. Unit.

Sun. Mon. Tue. Wed. Thur. Fri. Sat.

1st/3rd 12Noon ——_ 12Noon

Week M8 M7 ~

1st/3rd 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm

Week BlockA M4 M18 re M13 M11 M2

(1st flr.)

2nd/4th 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm 6:00 pm

Week (2nd flr.) M19 M1 M3 M17 ~~ Annex Block B

Noted: /s/ Fred Ragasa

CS

Noted: /s/ Deanna Espirnis

ASSA

Noted: /s/ Miles Murakami

APCA

Approved: /s/ Edwin T. Shimoda

OCA

d2a

Spear v. Ariyoshi, Civil No. 84-1104

NOTICE

This is a class action proceeding pursuant to Rules

23(a) and 23(b)(1) of the Federal Rules of Civil Proce-

dure. The named plaintiffs represent a class of all in-

mates who are now, or in the future may be, incarcerated

at Oahu Community Correctional Center (OCCC) and the

Hawaii Women's Correctional Facility (HWCF).

The action was not one seeking monetary damages.

Its sole purpose was to secure injunctive and declaratory

relief.

The parties have agreed that the proposed consent de-

cree settles and resolves all substantive claims in this law-

suit.

On June 12, 1985, the Court provisionally approved the

proposed consent decree.

However, pursuant to Rule 23(e), F.R.C.P., all mem-

bers of the plaintiff class confined at OCCC and HWCF

will be provided with a copy of this notice and a copy of

the proposed consent decree will be posted in each housing

unit and ten (10) copies will be available in the institu-

tional libraries. Such copies will be delivered and posted

on or before June 26, 1985. Class members will have 30

days to deliver any written comments to the court:

Honorable Spencer Williams

U.S. District Judge

450 Golden Gate Avenue

San Francisco, California 94102

The court will fully consider any objections te the con-

sent decree.

53a

UNITED STATES COURT OF APPEALS -

FOR THE NINTH CIRCUIT

NO. 84-1538

DC = 83-1067-SPK

Hawaii (Honolulu)

EMMET AKAO, et al.,

Plaintiffs-Appellants,

vs.

EDWIN T. SHIMODA, etc., et. al.,

Defendants-Appellees.

AFFIDAVIT OF JAMES H. DANNENBERG

STATE OF HAWALL )

) SS.

CITY AND COUNTY OF HONOLULU _ )

JAMES H. DANNENBERG, being first duly sworn,

on oath deposes and says that:

1. He is a deputy Attorney General, State of Hawaii,

and counsel of record for defendants-Appellees in the

above-entitled appeal ;

2. On June 12, 1985, parties in Spear, et al. v. Ariyo-

shi, et al., US.D.C. Civil No. 84-1104 (D. Haw.) (‘‘Spear’’)

signed and filed, with Court approval, a consent decree

covering conditions of confinement, including crowding

and triple-celling, at the Oahu Community Correctional

Center and the Hawaii Women’s Correctional Facility; a

true copy of that consent decree is attached hereto as Ex-

hibit A;

54a

3. Plaintiff-Appellants are members of the duly cer-

tified class of inmates bound by the consent decree in

Spear;

Further Affiant sayeth naught.

/s/ James H. Dannenberg

Subseribed and sworn to before me

this 19th day of June, 1985.

/s/ Teruko Wong

Notary Public, State of Hawaii

My commission expires: 6/8/86

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 84-1538

DC# 83-1067-SPK

Hawaii (Honolulu)

EMMET AKAO, et al.,

Plaintiffs-A ppellants,

Vs.

EDWIN T. SHIMODA, ete., et. al.,

Defendants-Appellees.

PROPOSED ORDER

The Court having reviewed Defendants-Appellees’

Motion to Dismiss Appeal for Mootness, and the records

and files herein, and finding that the issues raised in the

instant appeal have been resolved by the consent decree in

Spear, et al. v. Ariyosht, et al., U.S.D.C. Civil No. 84-1104

(D. Haw.,*June 12, 1985);

eT

55a

IT IS HEREBY ORDERED that defendants-appel-

lee’s Motion to Dismiss Appeal for Mootness is GRANT-

ID and the appeal is hereby DISMISSED.

DATED: San Francisco, California...

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document

was served on the following by depositing the same in the

United States mail, postage prepaid, on June 19, 1985, ad-

dressed as follows:

Emmet Akao

2199 Kamehaneha Highway

Honolulu, Hawaii 96819

/s/ James H. Dannenberg

Deputy Attorney General

56a

APPENDIX L

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMET AK AO, et al.,

Plaintiffs-Appellants,

VS.

EDWIN T. SHIMODA, ete., et. al.,

Defendants-Appellees.

NO. 84-1538

DC 83-1067-SPK

Hawaii (Honolulu)

FILED

July 6, 1987

CATHY A. CATTERSON

Clerk, U.S. Court of Appeals

PETITION FOR REHEARING AND

SUGGESTION OF THE APPROPRIATENESS

OF REHEARING EN BANC

| Material Deleted in Printing]

I. STATEMENT OF COUNSEL

| express a belief, based on professional judgment,

that rehearing pursuant to Fed. R. App. P. 40(a), and

Ninth Cireuit Rule 13(e)(2), or that rehearing en bane

pursuant to Fed. R. App. P. 55(a), and Ninth Cireuit Rule

12, is necessary to review and correct the panel opinion in

this matter [hereinafter cited as ‘‘Slip op.’’|, because of

the following substantial reasons:

(a) The panel decision fails to recognize appli-

cable sovereign and qualified immunity defenses that are

3

*

3

3

*

2

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4

4

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apparent on the face of the decision; moreover, these im-

munities have been reaffirmed and expanded by the recent

opinions of the United States Supreme Court in Welch v.

State Department of Highways, 55 U.S.L.W. 5046 (U.S.

June 25, 1987) (Eleventh Amendment immunity), and

Anderson v. Creighton, 55 U.S.L.W. 5092 (U.S. June 25,

1987) (qualified official immunity), both of which were

handed down after the panel decision in this matter; al-

though it is within the Court’s power to remand these is-

sues to the District Court, and we view the panel decision

to have done so, Dandridge v. Williams, 397 U.S. 471, 475-

76 n.6 (1970), the error of permitting this litigation to go

forward is so plain as to counsel rehearing, or rehearing

en banc, and reversal. See Washington v. Davis, 426 U.S.

229, 238 (1976) (plain error);

(b) The motions panel decision of July 11, 1985, by

refusing to recognize that all damage claims for over-

crowding were settled by the consent decree in Spear v.

Ariyoshi, No. 84-1184 (D. Haw. June 12, 1985), of which

plaintiffs were named class members, overlooks the plain

language of the consent decree in violation of res judicata

and Article III, improperly rendering summary judgment

to plaintiffs on these issues; and

(c) The holding that appellants’ pro bono counsel

‘‘may move for attorneys’ fees and costs’’ at this stage of

the litigation, Slip. op. at 4, is plain error in light of the

decision of the Supreme Court of the United States in

Hewitt v. Helms, 55 U.S.L.W. 4907 (U.S. June 19, 1987),

reaffirming Hanrahan v. Hampton, 446 U.S. 754 (1980),

because appellants, even if they may not be dismissed, have

not received any ‘‘relief on the merits of [their] claims.”’

Hewitt, 55 U.S.L.W. at 4909 ;

58a

Il. THE PANEL OPINION, INTERVENING

DEVELOPMENTS, AND STATEMENT OF

ISSUES MERITING REHEARING OR EN

BANC REVIEW.

A, The Panel Opinion and Summary of Reasons

Why Reheartng or En Banc Review Should Be Granted.

The panel’s per curiam decision, Akao v. Shimoda,

No. 84-1538 (9th Cir. June 19, 1987) [‘‘Slip op.’’] [Leopy

attached as addendum ‘‘A’’], holds that pro se allegations

that increases in prison population that lead to ‘‘ ‘an in-

crease in stress, tension, communicable diseases, and a high

increase in confrontation between inmates,’ ’’ Slip op. at 3

(quoting Complaint 12), state a claim under the Kighth

Amendment, redressable under 42 U.S.C. § 1983 (1982).

Slip op. at 3. To reach this result, the panel relies solely

on the ‘‘intervening’’ decision in Toussaint v. Yockey,

722 F.2d 1490 (9th Cir. 1984), handed down more than

three months after the complaint here was filed. See

C.R. 1 (complaint filed on Oct. 7, 1983). A motions panel

of this Court earlier had dismissed all claims for non-

money relief as moot in light of the consent decree entered

in Spear v. Ariyoshi, No. 84-1104 (D. Haw. filed June 12,

1985). The panel left intact claims for monetary relief

notwithstanding that the class plaintiffs in Spear, inelud-

ing appellants here, waived all claims ‘‘which are appli-

cable to more than the individua! circumstances of a par-

ticular class member’’. See Order, Akao v. Shimoda, No.

84-1538 (9th Cir. July 11, 1985) [copy attached as adden-

dum ‘‘B’’|; Motion to Dismiss Appeal for Mootness,

(June 21, 1985) [eopy attached as addendum ‘‘C"*"}.

Apparently because the complaint in-this case did not

clearly allege whether plaintiffs were proceeding against

a

3

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SR NAA. at A CES MET BE aed lanai ie eel ei

59a

the state officers named therein in their official capacity,

in which case the monetary claims would be clearly subject

on remand to an Eleventh Amendment defense in the

courts below, see Papasan v. Allain, 106 8S. Ct. 2931 (1986),

or in their individual capacity, in which case the doctrine

of qualified official immunity stated in Harlow v. Fitz-

gerald, 457 U.S. 800 (1982), would protect the state offi-

ciols in any further proceedings, the panel decision of

June 19, 1987, left these immunity issues, as well as dispo-

sition on the merits by summary judgment, or a full-blown

trial, for remand under the established rule of appellate

diseretion stated in decisions such as Dandridge v. Wil-

liams, 397 U.S. 471, 476 n.6 (1970); cf. Kentucky v. Gra-

ham, 473 U.S. 159, 167 n.14 (1985); Patsy v. Florida Board

of Regents, 457 U.S. 496, 515-16 & n.19 (1982). Despite

these remaining issues, however, the panel, citing Leeds v.

Watson, 630 F.2d 674 (9th Cir. 1980), held that appellants’

pro bono counsel ay immediately *‘move for attorneys’

fees and costs pursuant to 42 U.S.C. § 1988.""

Rehearing or rehearing en banc should be granted to

correct three fundamental errors that infect the panel de-

cisions here.

First, assuming, aryguendo, that everything in the

panel decisions is correct, it is clear in light of recent deci-

sions from the Supreme Court of the United States that

no monetary damages could be had in this case. Under

Welch v. Department of Highways, 55 U.S.L.W. 5046

(U.S. June 25, 1987), reaffirming Hans v. Louisiana, 154

U.S. 1 (1980), no damages may be had against state of-

ficers sued in federal court in their official capacities.

More significantly, under Anderson v. Creighton, 55

U.S.L.W. 5092 (U.S. June 25, 1987), and the qualified

60a

immunity that exists under Harlow v. Fit :gerald, 457

U.S. 800 (1982), no liability can exist against an officer

in his individual capacity because ‘‘[t}he contours of the

right [at issue] must be sufficiently clear that a reasonable

official would understand that what he is doing violates

that right.’’ Anderson, 55 U.S.L.W. at 5093. Because the

panel relies for its analysis entirely on ‘‘the intervening

Toussaint opinion,’’ Slip op. at 3, it will be impossible for

plaintiffs to overcome //arlow immunity in the lower

courts. Although in general this Court has discretion to

remand unadjudicated defenses to the lower courts, when

an immunity defense is as clear as that here it would be

manifest error not to affirm.

Second, in conclusively rejecting appellees’ defenses

based on the consent decree in Spear v. Artyoshi, No. 84-

1104 (D. Haw. June 12, 1985), the panel decision contra-

dicts its own rationale of permitting parties to present all

colorable claims to the District Court. Rather than reject

our mootness defense outright, given the waiver language

of the consent decree the panel should at the least have

vaeated the lower court’s judgment and remanded with

instructions to make findings with respect to whether there

,

is present a live ‘‘controversy’’ with respect to damages

liability. Rehearing or rehearing en banc should therefore

be granted to correct this egregious violation of appellees’

rights under the consent decree, which were arrived at af-

ter lengthy negotiations with counsel for plaintiffs in per-

haps the most exhaustive class-action lawsuit to have been

brought against the State of Hawaii in its history.

Third, even if all the foregoing is incorrect, rehearing

or rehearing en banc should be granted to correct that

part of the panel decision that suggests that appellants’

he wikia As MPa (Ae Oe

6la

counsel may immediately move for attorneys fees pursu-

ant to 42 U.S.C. § 1988. The panel ruling that attorneys

fees may be awarded at an interlocutory stage is in plain

conflict with numerous decisions in this Cireuit, and at

least two decisions of the Supreme Court of the United

States, including //anrahan v. Hampton, 446 U.S. 754

(1980), and Hewitt v. Helms, 55 U.S.L.W. 4907 (U.S. June

19, 1987). For this reason, rehearing or en banc review

should be granted, and the Court’s opinion should be

amended to provide that attorneys fees may not be award-

ed unless and until plaintiffs ultimately prevail on remand.

B. The Panel Decision Remanding this Case

Should Be Vacated and the Judgment Af-

firmed Because It is Clear Beyond Peradven-

ture that Appellees Would Have Immunity

Even if the Plaintiffs on Remand Could

Prove Their Claims.

It is a hallmark of appellate procedure that this Court

‘‘review judgments, not opinions,’’ and that an appellee

may sustain the judgment below ‘‘on any ground that finds

support in the record.’’ Chevron U.S.A. v. Natural Re-

sources Defense Council, 467 U.S. 837, 842 n.7 (1984); see

also Thigpen v. Roberts, 468 U.S. 27, 30 (1984); Plaine

v. McCabe, 790 F.2d 742, 751 (9th Cir. 1986); Bernard

v. City of Palo Alto, 699 F.2d 1023, 1024-25 & n.1 (9th

Cir. 1983). The record in this case now includes the

panel decision, which holds that monetary relief can be

had for prison overcrowding in 1983 solely on the basis

of an ‘‘intervening’’ decision of this Court that was not

handed down until 1984. Slip op. at 3 (quoting Toussaint

v. Yockey, 722 F.2d 1490 (9th Cir. 1984)).

Even if the State officials in this case were appellants,

and unable to make use of the ‘‘any ground in the record’’

62a

rile, the panel decision that relief may be had on remand

is so egregiously wrong that it would violate the plain

error rule to reaffirm the panel judgment. See Washing-

ton v. Davis, 426 U.S.229, 238 & n.9 (1976) (citing cases) ;

see also Toussaint v. McCarthy, 801 F.2d. 1980, 1106 n.27

(9th Cir. 1986). Because we are appellees, it is even plainer

that the panel decision should be overturned. No purpose

whatever will be served by remanding this case to the low-

er court. For even if everything the panel says about the

Eighth Amendment is true, and even if plaintiffs could

prove every allegation in the complaint, the relevant im-

munity defenses truly make this a case in which ‘‘the same

result would obtain.’’ Bernard v. City of Palo Alto, 699

F.2d 1023, 1025 n.1 (9th Cir. 1983). We thus ask the panel,

or the en banc Court, to grant rehearing, and affirm the

judgment on sovereign and official immunity grounds.

The reasons for this Court to so are especially force-

ful in light of two recent decisions of the United States

Supreme Court, of which the panel did not have the bene-

fit when it decided this matter on June 19, 1987. In the

first, Welch v. Department of Highways, 55 U.S.L.W.

9047 (U.S. June 25, 1987), a plurality of the Court re-

affirms Hans v. Louisiana, 134 U.S. 1 (1890), which holds

that ‘‘the Eleventh Amendment bars a citizen from bring-

ing suit against the citizen’s own State in federal court.’’

55 U.S.L.W. at 5048. Justice Sealia, who was presented

for the first time with the issue whether Hans should be

overruled, strongly suggested he supports the Hans rule,

which ‘‘has been assumed to be the law for nearly a

century,”’ id. at 5054 (Sealia, J., concurring in part and

concurring in the judgment). Until further notice, the low-

63a

er federal courts must assume that damages in official

capacity actions against State officials, by state citizens,

in actions under 42 U.S.C. § 1983, are barred. Papasan v.

Allain, 106 S. Ct. 2932, 2940 (1986); compare Ouern v.

Jordan, 440 U.S. 332, 342-43 (1979), with Welch, 55 U.S.

L.W. at 5054 (Sealia, J., concurring); see Olson v. Paine,

Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th

Cir. 1986). If this is an official capacity suit, the District

Court is powerless to grant monetary relief.

The Supreme Court’s second recent decision bearing

on this ease, Anderson v. Creighton, 55 U.S.L.W. 5092

(U.S. June 25, 1987), shows the same result must obtain

if this is an action against State officers in their individual

capacities. In Anderson, the Court made clear that

‘‘fpllaintiffs [cannot] convert the rule of qualified im-

munity that our cases plainly establish into a rule of

virtually unqualified liability simply by alleging violation

of extremely abstract rights.’’ 55 U.S.L.W. at 5093. Re-

versing the Kighth Circuit, the Court chastened the lower

court for ‘‘refus{ing| to consider the argument that it

was not cleariy established that the circumstances with

which Anderson was confronted did not constitute probabie

cause and exigent cireumstances.’’ Jd. (emphasis in origi-

nal). Substantially clarifying Harlow v. Fitzgerald, 457

U.S. 800 (1982), the Court held that officials must granted

immunity when ‘‘their actions are reasonable in light of

current American law.’’ 55 U.S.L.W. at 5094. There is

no exception to qualified immunity for ‘‘intervening’’ de-

cisions of ‘‘ American law’’ that prove state action unlawful

after it has occurred. Under the pane! decision here, the

only way money damages on an individual-capacity theory

64a

can be awarded is on the hasis of such an ‘‘intervening’’

decision. In light of Anderson, however, the District Court

eould not award such damages.

Although it is plainly within this Court’s discretion

to remand the Anderson issue to the District Court, and

we understand that litigation under Anderson may con-

tinue below under the panel decision as it now stands, the

interests of both appellants and appellees would be served

by a prompt decision on the fundamentally legal issue of

whether, assuming all the allegations of the complaint

could be proved, ‘‘the actions the [plaintiffs] allege [de-

fendants] to have taken are actions that a reasonable offi-

eer could have believed lawful.’’ 55 U.S.L.W. at 5095 n.6;

see also Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.

1986) (per curiam) (citing Bolker v. Commissioner, 760

F.2d 1039, 1042 (9th Cir. 1985)). The panel decision it-

self permits only one answer to that question: given that

a constitutional violation could be stated here only because

of the ‘‘subsequent’’ and ‘‘intervening Toussaint opinion,”’

Slip. op. at 3, there is no way the State officers can be

held to have known that the complaint here could give

rise to a valid cause of action under the Eighth Amend-

ment. See generally Rhodes v. Chapman, 452 U.S. 337

(1981); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982).

Wholly aside from whether the panel wrongly expanded

Toussaint v. Yockey to encompass the vague allegations

of the instant complaint, see Toussaint v. McCarthy, 801

F.2d 1080, 1107 (9th Cir. 1986) (idleness that creates ‘‘vio-

‘lence and psychological pain’’ is not an Kighth Amendment :

wrong), there is no way, given Anderson, that Harlow

immunity can be avoided. For that reason, rehearing

65a

should be granted, and the judgment affirmed because no

damages could be awarded in light of the Eleventh Amend-

ment and the decision in Anderson.

C. Rehearing or En Banc Review Should Be

Granted to Correct the Error of the Motions

Panel in Completely Rejecting Our Claim That

the Damage Claims Here Were Settled by the

Consent Decree in Spear v. Ariyoshi, No, 84-

1104 (D. Haw. 1985).

Although the panel that decided the merits of this

case was quite charitable when it came to giving the plain-

tiffs every chance to prove their claims, the two-judge

motions panel that rejected our claim that ‘‘the resolu-

tion of identical issues by consent makes the issues in the

instant appeal moot,’’ Motion to Dismiss Appeal for Moot-

ness at 2, No. 84-1538, was much more confident of its

ability summarily to resolve fact issues. This confidence

was misplaced. In ruling that ‘‘{t!he claim for monetary

relief is not moot,’’? Order, No. 84-1538 (9th Cir. July 11,

1987), the motions panel misread the consent decree, mis-

applied the doctrine of res judicata, and mistook its role

in passing upon suggestions that there is no ‘‘ease’’ or

‘feontroversy’’ under_Article III of the Constitution.

First, the motions panel’s ruling that the consent de-

eree does not resolve this case could not be more wrong.

As stated in the waiver clause of the decree, the parties in

Spear v. Artiyosht distinguished between ‘‘individual

claims for declaratory, injunctive, and/or monetary re-

lief,’’ which were saved, and claims for group relief, mone-

tary or not, which were not:

N. By entering into this Decree, plaintiffs and mem-

bers of the plaintiff class are not waiving any rights

66a

to pursue individual claims for declaratory, injunc-

tive, and/or monetary relief. The only claims against

defendants settled herein are claims for injunctive

relief of a general nature as detailed in the complaint

filed in this case and which are applicable to more than

the individual circumstances of a particular plaintiff

class member.

Consent Decree at 8, Spear v. Ariyoshi, No. 84-1104 (D.

Haw. June 12, 1985), Ex. ‘‘A’’ to Motion to Dismiss Ap-

peal for Mootness, Akao v. Shimeda, No. 84-1538 (9th Cir.

June 21, 1985). This language makes clear that monetary

claims for injuries common ‘‘to more than the individual

circumstances of a particular plaintiff class member,’’

such as the overcrowding alleged in the instant complaint,

were waived. If they were not, no purpose whatever would

5

have been served by the language specifying that claims

‘‘which are applicable to more than the individual cireum-

stances of a particular plaintiff class member”’

were

waived. Just as it is wrong in statutory cases not ‘‘to

give effect to all parts of a statute,’’ Camara v. Agsalud,

67 Haw. 212, 215, 685 P.2d 794, 797 (1984), so too was

it wrong to read the ‘‘more than individual cireumstances’’

language as superfluous. The plaintiffs in Spear, repre-

sented by the wellknown National Prisons Project of the

American Civil Liberties Union, were well-informed of the

rules that make it hard to obtain damages in overcrowding

cases, and, for that reason, had no trouble waiving dam-

ages for such collective claims.'

: The motions panel’s error is also clear from the face of its

July 11, 1985, order. Whereas the motions panel seemed to

hold that the only claims waived were those that fell within

A (Continued on following page)

67a

\

This is so regardless whether the Spear case was

brought as a damages action. For it is a hallmark of the

rule of res judicata that settlement of comprehensive liti-

gation such as Spear precludes further litigation of any

demand that might have been sustained under the cause

of action. See Nevada v. United States, 463 U.S. 110,

129-31 & n.12 (1983) (citing Restatement (Second) of

Judgments § 24 (1982)). The cause of action here, as in

Spear, was principally for prison overcrowding at the

Oahu Community Correctional Center. The consent decree

provisions relating to population levels are the most de-

tailed in the decree, and, if they can be enforced under

Washington v. Penwell, 700 l'.2d 570 (9th Cir. 1983), repre-

sent enormous concessions on the part of the State. See

Consent Decree Part I. It is apparent that the claims for

crowding in this ease were ‘‘related in time, space, origin,

or motivation,’’ Nevada v. United States, supra, to the

Spear facts, and would have been tried to the Spear trier

of fact had Spear gone to trial. The panel should never

have reached the merits here.

(Continued from previous page)

both clauses of the second sentence of the consent decree’s

waiver provision, in its order the motions panel went beyond

the plain language of those clauses to hold that claims for ‘‘in-

junctive and declaratory relief are moot.” /d. (emphasis added).

The motions panel itself thus recognized that the waiver provi-

sions demanded interpretation; on that finding, however, the

case should have been remanded to the lower court.

Indeed, the appellants were of the view that the consent

decree presented sufficiently substantial issues to warrant seri-

ous consideration whether to dismiss the appeal themselves.

See the uncontested Affidavit of Glenn S. Grayson { 2, No. 84-

1538 (9th Cir. Jan. 12, 1987) (stating that counsel for plaintiffs

admitted that plaintiffs were ‘seriously considering dismissing

this appeal because the issues on appeal may be rendered moot

by the consent decree entered into in Spear’).

’

68a

At the very least, the motions panel, as the United

States Supreme Court routinely does when it appears that

there is no controversy on appeal, see, e.g., Town of Lock-

port v. Citizens for Community Action, 431 U.S. 259, 263,

264 n.9 (1977); Ellis v. Dyson, 421 U.S. 426, 435 (1975),

should have remanded the case to the District Court so

that that Court could make trial findings bearing on the

waiver clause in the Spear consent decree. Surely, given

the reasonableness of our view of the consent decree, that

would be the result if the District Court in the first in-

stance had rendered a summary judgment to the plaintiffs

rejecting a defense of res judicata. See National Union

Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir.

1983) (quoting Castaneda v. Dura-Vent Corp., 648 F.2d

612, 619 (9th Cir. 1981)); cf. A & A Concrete v. White

Mountain Apache Tribe, 781 F.2d 1411, 1414 (9th Cir.

1986) (res judicata is a ‘‘mixed question of law and fact’’)

(emphasis added). The result should be no different here

when the ground for bar was not available until the case

was on appeal and we pleaded settlement nine days after

its entry in the lower court. See Maryland v. United

States, 381 U.S. 41, 53 n.38 (1965).

For the foregoing reasons, rehearing or en banc re-

view should be granted to correct the fundamental mis-

reading of the Spear consent decree, which generates a

windfall to the Spear plaintiffs, usurps the factfinding

province of the District Courts, and portends extraordi-

nary hardship to the State of Hawaii as it seeks to operate

its prisons in accordance with constitutional principles

and an ongoing consent judgment.

69a

D. Rehearing or En Banc Review Should Be

Granted To Amend that Part of the Panel

Decision That Holds, Contrary to Numerous

Circuit Decisions, and Recent Supreme Court

Authority, that Attorneys Fees Can Be Had

at this Stage.

A third and independent ground for rehearing or en

banc review arises from the panel decision authorizing ap-

pellants’ counsel immediately to ‘‘move for attorneys’ fees

and costs pursuant to 42 U.S.C. §1988.’’ Slip op. at 4.

Even if all our other claims on rehearing are denied, re-

hearing should be granted, and this part of the decision

amended, to make clear that no attorneys fees may be

awarded until appellants ‘‘receive at least some relief on

the merits of [their] claim.’’ Hewitt v. Helms, 55 U.S.L.W.

4908, 4909 (U.S. June 19, 1987) (citing Hanrahan v. Hamp-

ton, 446 U.S. 754, 757 (1980)). To the degree the panel

decision holds to the contrary, it is in plain conflict with

Hewitt and Hanrahan, as well as many eases in this Cir-

cuit. See Jensen v. City of San Jose, 806 F.2d 899, 901 (9th

Cir. 1986) (en bane) (citing, e.g., Escobar Ruiz v. I.NS.,

797 F.2d 1294 (9th Cir. 1986); Ward v. County of San

Diego, 791 F.2d 1239 (9th Cir. 1986); United States v. 2.61

Acres of Land, 791 F.2d 666 (9th Cir. 1985)). To the de-

gree decisions such as Mantolete v. Bolger, 791 F.2d 784

(9th Cir. 1986), in any way support appellants, we respect-

fully suggest they have been overruled by Hewitt v. Helms,

supra.

Ill. CONCLUSION

For the reasons above, defendants-appellees urge that

rehearing or en banc review be granted. On rehearing, the

Court should affirm the judgment below, or, in the altern-

ative, rernand the case for proceedings to determine if

plaintiffs’ claims for monetary relief have been waived,

70a

and those defenses preserved by the panel decisions. In

addition, the ruling that plaintiffs may seek attorneys fees

should be vacated in light of Hewitt v. Helms, No. 85-1630

(June 19, 1987).

Dated: Honolulu, Hawaii, July 3, 1987.

WARREN PRICE, ITI

Attorney General

State of Hawaii

/s/ STEVEN S. MICHAELS

GLENN S. GRAYSON

STEVEN S. MICHAELS

Deputy Attorneys General

Attorneys for Defendants-Appellees

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing were

duly served upon the following by depositing the same in

the United States mails, first class postage prepaid, on

July 3, 1987, addressed as follows:

Emmet Akao

2199 Kamehameha Highway

Honolulu, Hawaii 96819

Charles R. Breyer

William H. Orrick, III

Thomas J. Eicher

Coblentz, Cahen, McCabe & Breyer

One Embarcadero Center

Thirty-Fifth Floor

San Francisco, California 94111

(Attorneys for Appellants)

Dated: Honolulu, Hawaii, July 3, 1987.

/s/ Steven S. Michaels

Deputy Attorney General

7la

APPENDIX M

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMET AKAO, ALLEN V. TRIPP,

AND GARRICK UMIAMAKA,

Plaintiffs-Appellants,

v.

EDWIN T. SHIMODA, et al.,

Defendants-Appellees

No. 84-1538

DC #83-1067-SPK

Hawaii (Honolulu)

ANSWER TO PETITION FOR REHEARING AND

SUGGESTION OF THE APPROPRIATENESS OF

REHEARING EN BANC

ADDENDUM

DECLARATION OF COUNSEL

FILED

AUGUST 24, 1987

CATHY A. CATTERSON

CLERK, U.S. COURT OF APPEALS

CHARLES R. BREYER

WILLIAM H. ORRICK, III

COBLENTZ, CAHEN, McCABE & BREYER

One Embarcadero Center

Thirty-Fifth Floor

San Francisco, California 94111]

Telephone (415) 391-4800

Attorneys for Plaintiffs-Appellants

72a

INTRODUCTION

On October 7, 1983, three inmates at the Oahu Com-

munity Correctional Center filed a complaint in the United

States District Court, District of Hawaii, alleging pur-

suant to 42 U.S.C. § 1983 that they were injured by over-

crowded conditions which had increased stress, tension,

communicable diseases and violence among prisoners.

(Complaint, 112.) Defendants, prison officials, moved to

dismiss for failure to state a claim, and the District Court

granted their motion without allowing plaintiffs the oppor-

tunity to amend. This Court reversed, observing that al-

though plaintiffs’ allegations were not sufficiently specific

to state a cause of action, it was not ‘‘beyond doubt’’ that eo

they could do so by amendment. Akao v. Shimoda, No.

84-1538, slip op. at 3 (9th Cir. June 19, 1987) [hereinafter

‘*the Opinion’’}.

Having lost the appeal, defendants raise for the first

time the issue of whether sovereign or qualified immunity

forecloses plaintiffs’ claims in their Petition for Rehearing

and Suggestion of the Appropriateness of Rehearing En

Bane.* Defendants’ arguments are simultaneously too late

and premature. The rule that this court will generally not

consider an issue raised for the first time on appeal,

Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.

* Defendants have not argued that the Opinion directly con-

flicts with an existing opinion by another court of appeals or

substantially affects a rule of national application in which there

is an overriding need for national uniformity, nor advanced any

other reason why a rehearing en banc is appropriate in this

case concerning pleading requirements for pro se plaintiffs. See

Rule 35(a), Federal Rules of Appellate Procedure and Rule 12,

Rules of the United States Court of Appeals for the Ninth Cir-

cuit.

em

73a

1985), applies with special force to issues raised for the

first time in a petition for rehearing. Further, for four

years defendants have argued that plaintiffs’ claims are

too vague. The facts needed to adjudicate defendants’ im-

munity defenses have neither been pleaded nor been sub-

ject to discovery. Until a complaint which states a claim

for relief is on file, there is no record on which to make a

determination regarding immunity.

Defendants also contend that plaintiffs’ claims are

moot because of a consent decree in Spear v. Ariyosht, No.

84-1104 (D. Haw. June 12, 1985), a class action concerning

prison conditions in Hawaii. The language on which de-

fendants rely, however, clearly permits plaintiffs to liti-

gate their individual claims for damages. As a result, the

Court should deny defendants’ petition and permit plain-

tiffs to amend their complaint.*

ARGUMENT

I

WELL ESTABLISHED AUTHORITY IN THIS

CIRCUIT REQUIRES THAT PLAINTIFFS BE

PERMITTED TO AMEND THEIR COMPLAINT

It has long been the rule in this Cireuit that pro se

plaintiffs in civil rights actions who are confined in prison

should be granted the opportunity to amend their com-

plaints before dismissal for failure to state a claim unless

it clearly appears from the complaint that the deficiency

*Defendants have also urged that plaintiffs are not entitled to

attorneys’ fees merely because they prevailed on appeal. The

Opinion, while preserving plaintiffs’ right to pursue their claim,

does not provide relief on the merits. Accordingly, plaintiffs

agree that they are not entitled to attorneys’ fees at this time.

74a

cannot be overcome. Potter v. McCall, 433 F.2d 1087 (9th

Cir. 1970); Armstrong v. Rushing, 352 F.2d 836 (9th Cir.

1965). As Judge Duniway wrote in Harmon v. Superior

Court, 307 F.2d 796, 798 (9th Cir. 1962):

The claim may be, as appellees assert, entirely spur-

ious. The complaint may well! not state a claim upon

which relief can be granted. It may be that appellant

cannot amend to state such a claim. But those are not

the questions before us. The court cannot know, with-

out hearing the parties, whether it may be possible for

appellant to state a claim entitling him to relief, how-

ever strongly it may incline to the belief that he can-

not.... The right to a hearing on the merits of a

claim over which the court has jurisdiction is of the

essence of our judicial system, and the judge’s feeling

that the case is probably frivolous does not justify by-

passing that right.

The Opinion is consistent with this authority. It is

not ‘‘bevond doubt’’ that plaintiffs camnot state a claim.

Opinion at 3. It is not ‘‘bevond doubt’’ that defendants

are not immune from suit. At this stage of the case, the

only issue is whether plaintiffs should have been granted

the opportunity to amend their complaint. The Court

properly decided that they should. Issues of standing, im-

munity and inability to state a claim must wait until plain-

tiffs revise their complaint.

IL.

DEFENDANTS’ ARGUMENT REGARDING

IMMUNITY IS UNTIMELY

Defendants now contend for the first time that this

Court should determine that they are either totally immune

from suit under the Eleventh Amendment to the United

Ja

States Constitution, Welch +. Di partment of Hial waUs, DD

U.S.L.W. 547 (U.S. June 25, 1987), or that their qualified

immunity from suit in their individual capacities requires

the same result. Anderson v. Cretghton, 55 U.S.L.W. 5092

(U.S. June 25, 1987) Each argument rests on defendants’

hypothesis of what plaintiffs will allege when they amend

the complaint. Neither argument is ripe until the amend

ment has been made.

This Court will generally not consilder an issue raised

for the first time on appeal, much less in a petition for re

hearing. See Bolker v. Commissioner. 760 F.2d 1039, 1042

(9th Cir. 1985). Three exceptions to that rule exist:

[1] in an ‘‘exceptional’’ case when review is necessarv

to prevent a miscarriage of justice or to preserve the

integrity of the judicial process, [2] when a new issue

arises while appeal is pending because of a change in

law, or [3] when the issue presented is purely one of

law and either does not depend on the factual record

developed below, or the pertinent record has been

fully developed.

Id. (Citations omitted.) None of the exceptions apply.

Defendants do not contend that the first exception

exists here. There is nothing exceptional about the Court’s

determination that a pro se plaintiff should have the op-

portunity to amend his complaint before its dismissal. Nor

have any new issues arisen because of a change in law

while this appeal has been pending. Although defendants

rely on two cases decided by the United States Supreme

Court this June, Welch v. Department of Hiahways and

Anderson v. Creighton. neither changed the law concerning

the immunity which defendants seek in this action. See

76a

Hans v. Louisiana, 134 U.S. 1 (1890) and Harlow v. Fitz-

gerald, 457 U.S. 800 (1982).

Finally, there are no facts alleged, much less devel-

oped, on which the Court can base an analysis of the im-

munity questions raised by defendants. Defendants assert

(erroneously) that Welch, which concerned the application

of §33 of the Jones Act, 46 U.S.C. § 688, stands for the

blanket proposition that ‘‘the lower federal courts must

assume that damages in official capacity actions against

state officials, by state citizens, in actions under 42 U.S.C.

5 1983, are barred.’* Petition for Rehearing at 8. Before

addressing that contention, the trial court must first de-

termine whether the complaint is brought solely against

defendants in their official capacities (which it almost as-

suredly is not). Then it must consider whether the State

has waived its immunity and consented to suit in federal

court. Welch, 55 U.S.L.W.. at 5048. Plaintiffs are entitled

to establish through discovery that such a waiver occurred

by means of the consent decree in Spear v. Ariyoshi, No.

84-1104 (D.Haw. June 12, 1985) or by other conduct. Until

these preliminary questions are resolved through plead-

ings and discovery, there is no basis on which to adjudicate

defendants’ sovereign immunity defense.

There is even greater need for factual development

regarding defendants’ assertion that their qualified im-

munity for official action immunizes them from suit in

their individual capacities.

[Whether an official protected by qualified immunity

mav be held personally liable for an allegedly unlawful

official action generally turns on the ‘objective legal

reasonableness’ of the action, Harlow [v. Fitzgerald

457 U.S. 800, 819 (1982)], assessed in light of the legal

77a

rules that were“clearly established’ at the time it was

taken. Id., at 818.

Anderson v. Creighton, 55 U.S.L.W. at 5093. The determi-

nation necessary under Harlow v. Fitzgerald depends on

what the allegedly unlawful official action is, which has

yet to be pleaded. Until it is, it is impossible to know

whether the ‘‘elearly established’? legal rules at the time

render defendants liable for plaintiffs’ claims.

Defendants contend that their duties to piaintiffs un-

der the Kighth Amendment could not have been so clearly

established that a reasonable official would understand

that what they did violated plaintiffs’ rights because

Toussain v. Yockey, 722 ©.2d 1490 (9th Cir. 1985), cited

in the Opinion, was decided after plaintiffs’ case was filed.

That is nonsense. Claims arising under 42 U.S.C. § 1983

for violations of the eichth Amendment did not originate

with Toussaint v. Yockey. As demonstrated in the Supple-

mental Opening Brief of Appellants, each of the effects of

overcrowding alleged by plaintiffs forms the basis of an

Eighth Amendment violation and did so at the time the

complaint was filed: inadequate shelter and sanitation,

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) ; in-

creased violence, id.; and injury to mental well being,

Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979). See

Supplemental Opening Brief of Appellants at 6-13, Akao

v. Shimoda.

Whether plaintiffs will be able to state a claim upon

which relief can be granted under 42 U.S.C. § 1983 remains

’

to be seen. So does the extent of the defendants’ involve-

ment. If plaintiffs allege conditions of the severity of the

Arkansas prison system in Hutto v. Finney, 437 U.S. 678

78a

(1978), for example, and state how they were personally

injured as a result of those conditions, they will be entitled

to relief. Until they have had an opportunity to clarify

their complaint, it is premature for the Court to consider

defendants’ immunity defenses.

The irony of defendants’ argument should not escape

the Court. In their prior briefs, defendants complained

that they did not know what the increase in stress, tension,

communicable diseases, and the high increase in econfron-

tations between inmates (Complaint, § 12) alleged by plain-

tiffs meant in terms of 42 U.S.C. (1983. They could not

tell, they argued, whether plaintiffs had been injured by

the conditions alleged. Now, without knowing how plain-

tiffs were injured or why plaintiffs claim defendants were

responsible for those injuries, defendants assert that they

are immune. While defendants could ultimately be proven

correct, they must wait until plaintiffs amend their com-

plaint to find out. Plaintiffs will have to describe ade-

quately the roles which the defendants played in causing

their injuries in order to state a claim. If they cannot,

the trial court may dismiss their case. If plaintiffs state

a claim, defendants may adjudicate the immunity issues

on summary judgment. Now, without any record on which

to base a decision, is not the time to make that determina-

tion.

III.

PLAINTIFFS’ DAMAGE CLAIMS WERE NOT

SETTLED BY THE SPEAR v. ARIYOSHI

CONSENT DECREE.

Defendants also argue that the motions panel erred

in determining that plaintiffs’ claims are moot. Their

79a

curious areument relies on the following waiver clause,

contained in a consent decree which settled Spear v. Ariyo-

shi, No. 84-1104 (D.Haw. June 12, 1985), a class action re-

garding unconstitutional conditions which existed in the

Hawaii state prison system:

N. By entering into this decree, plaintiffs and mem-

bers of the plaintiff class are not waiving any rights

to pursue individual claims for declaratory, injunctive,

and/or monetary relief. The only claims against de-

fendants settled herein are claims for injunctive re-

lief of a general nature as detailed in the complaint

filed in this case and which are applicable to more than

the individual circumstances of a particular plaintiff

class member.

Id. at 6.

Defendants badly misinterpret the waiver clause.

Plaintiffs did not waive any claims for monetary relief:

‘‘members of the plaintiff class are nol waiving any rights

to pursue individual claims for declaratory, injunctive,

and/or monetary relief.’’ Jd.; emphasis supplied. That

sentence is modified to explain that claims for injunctive

relief of a general nature are waived: ‘‘The only claims

against defendants settled herein are claims for injunctive

relief of a yeneral nature as detailed in the complaint filed

in this case. ...’’ Jd.; emphasis supplied. The final

clause of the second sentence describes more particularly

what ‘‘claims for injunctive relief of a general nature as

detailed in the complaint’? means—claims which are ap-

80a

plicable to more than the individual cirenmstances of a par-

ticnlar plaintiff class member.’’ I[d.*

The proper interpretation of the waiver clause, as the

motions panel found, is that plaintiffs are precluded from

bringing an individual action for injunctive relief based

on overcrowding in their prison. They are not precluded,

however, from bringing an individual action based on over-

crowding if they suffered a compensable injury as a re-

sult of the overcrowding. If defendants’ interpretation

was correct, the consent decree would preclude virtually

every individual action pursuant to 42 U.S.C. § 1983 aris-

ing in the Hawaii state prison system. One could not com-

plain about violence caused by overcrowding, even if he

suffered a broken leg in a fight caused by it, or seek to

recover from stress caused by overcrowding, even if he

suffered a nervous breakdown as a result. Neither the

language of the waiver clause nor its intent would allow

such a result.

The meaning of the waiver clause is clear. The mo-

tions panel correctly determined that plaintiffs’ damages

action could proceed. That determination should not be

disturbed.

wide

oO

* Defendants’ assertion that plaintiffs considered dismissing

their appeal because of the effect of the consent decree is a

half truth. Plaintiffs’ pro bono counsel learned of the consent

decree’s existence, but had not received a copy of it, at the time

of the conversation described in the Grayson affidavit. We were

unaware of the motions’ panel's ruling, since it was not pro-

duced as part of the record we received upon our appointment

as pro bono counsel. Once we received the consent decree,

it was obvious that plaintiffs’ claims were not moot and we so

informed defendants’ counsel. See Declaration of William H.

Orrick, IIT, which is appended hereto.

Se

Sla

CONCLUSION

The Court’s Opinion should be amended to delete its

last sentence, as plaintiffs do not seek attorneys’ fees at

b]

this time. Otherwise, the Court should deny defendants

petition.

DATED: August 23, 1987

Respectfully submitted,

COBLENTZ, CAHEN, McCABE

& BREYER

By /s/ William H. Orrick, III

William H. Orrick, III

Attorneys for

Plaintiffs-Appellants

ADDENDUM

DECLARATION OF COUNSEL

I, William H. Orrick, III, declare:

1. I am pro bono counsel for plaintiffs in the above-

referenced matter, admitted to practice before this Court,

and an associate with the law firm of Coblentz, Cahen,

McCabe & Breyer. I have personal knowledge of the mat-

ters stated herein and, if called upon to do so, I would and

could competently testify to the following facts.

2. In the Petition for Rehearing and Suggestion of

the Appropriateness of Rehearing En Banc, defendants

refer to a conversation in December, 1986, between their

counsel, Glenn Grayson, and Thomas Eicher, a former as-

sociate of our law firm who was initially appointed as

82a

pro bono counsel in this action. I suggested that Mr.

Kicher speak with Mr. Grayson at that time because we

had recently discovered the existence of the consent decree

in Spear v. Ariyosht, No. 84-1104 (D. Haw. June 12, 1985).

We had not yet obtained a copy of it, but as a matter of

courtesy did not want Mr. Grayson to spend time respond-

ing to our opening brief if we would ultimately have to

abandon the appeal. Once we received and reviewed the

consent deeree, however, it was clear that plaintiffs’ in-

dividual claims for damages were not moot, and we so

notified the defendants.

3. As we were not counsel of record for plaintiffs

until September 30, 1986, we did not receive the Order of

the motions panel of July 11, 1985. (Indeed, I did not

see that Order until defendants filed the Petition for Re-

hearing and Suggestion of the Appropriateness of Rehear-

ing En Bane.) Obviously it is my belief that the motions

panel correctly interpreted the consent decree, and we

would not have contacted Mr. Grayson in December 1986

if we had been aware of the Order.

I declare under penalty of perjury that the foregoing

is true and correct and that it was executed in San Fran-

cisco, California, on August 23, 1987.

/s/ William H. Orrick, III

William H. Orrick, IIT