Gordon v. Maesaka-Hirata. , 431 P.3d 708 ( 2018 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
02-NOV-2018
09:19 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---oOo---
________________________________________________________________
MUKADIN GORDON,
Petitioner/Plaintiff-Appellant,
vs.
JODIE F. MAESAKA-HIRATA; PETRA CHO; and STATE OF HAWAI‘I,
Respondents/Defendants-Appellees.
_____________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 11-1-2482)
NOVEMBER 2, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
WITH WILSON, J., DISSENTING
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Pretrial detainees — individuals who have been arrested and
charged, but remain in jail while awaiting trial — have a due
process right to be free from punishment until convicted of a
crime. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Mukadin
Gordon (“Gordon”) filed suit because he was held in solitary
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
confinement by State of Hawaiʻi (“State”) prison officials for
more than nine months following his arrest in August 2010.
Gordon requested monetary damages pursuant to Title 42, Section
1983 of the United States Code (“U.S.C.”) and state tort law.
Following a jury-waived trial, the Circuit Court of the First
Circuit (“circuit court”)1 entered judgment in favor of the
defendants on all claims. The Intermediate Court of Appeals
(“ICA”) affirmed.
We hold that Gordon’s placement in solitary confinement for
more than nine months constituted unlawful pretrial punishment
in violation of the due process clauses of the Fourteenth
Amendment to the United States Constitution and Article I,
Section 5 of the Constitution of the State of Hawaiʻi. We also
hold, however, that although the circuit court applied an
incorrect standard for federal qualified immunity, defendant
Petra Cho (“Cho”) is not liable for damages under 42 U.S.C. §
1983 for the federal constitutional violation because the basis
of her decision to retain Gordon in pretrial solitary
confinement did not violate a clearly established constitutional
right of which every reasonable official would have known. We
also hold the circuit court did not err by concluding Cho has no
negligence liability based on state qualified immunity
1
The Honorable Edwin C. Nacino presided.
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
principles. In addition, as the State has not waived sovereign
immunity for damages claims based on state constitutional
violations, the State is not liable for damages for the state
constitutional violation.
We therefore overrule the ICA’s memorandum opinion insofar
as it conflicts with our conclusions herein, but affirm the
ICA’s judgment on appeal in favor of the defendants.
II. Background
A. Circuit Court Pretrial Proceedings
Gordon filed a civil complaint arising from his pretrial
detention at the Oahu Community Correctional Center (“OCCC”) and
the Halawa Correctional Facility (“HCF”). He alleged he was
incorrectly classified as a maximum security pretrial detainee
and placed in solitary confinement for a total of nine months
and twenty-two days between 2010 and 2011.2
In this opinion, we address only the claims asserted by
Gordon in his amended complaint against Cho and the State
(collectively, “the Defendants”) that he continues to assert on
appeal.3 Through his first cause of action, Gordon alleges a 42
2
Gordon’s Application for Writ of Certiorari asserts he spent nine
months and twenty-two days in solitary confinement. His amended complaint
alleges it was about nine months and twenty-four days. At trial, Gordon’s
counsel represented the time period lasted 296 days.
3
Many of the original individual defendants were dismissed or replaced
as parties at or prior to trial. Gordon’s original complaint included claims
against defendants Clayton Frank, Francis Sequiera, William Rushing, Faatuila
Pula, Michael Taamilo, Aaron Mirafuentes, and Gene Pomeroy. Clayton Frank
(continued. . .)
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
U.S.C. § 1983 claim for violation of his right to due process
under the Fourteenth Amendment to the United States Constitution
against Cho; he also alleges a violation of his right to due
process under Article I, Section 5 of the Constitution of the
State of Hawaiʻi against the State. Through his fourth cause of
action, he alleges negligence against Cho. Gordon seeks
general, special, and punitive damages, attorneys’ fees and
costs, and such other relief as deemed appropriate.
B. Circuit Court Trial
The circuit court conducted a two-day jury-waived/bench
trial that decided Gordon’s federal 42 U.S.C. § 1983 claim
against Cho in her individual capacity and his state negligence
claim against Cho.
(. . . continued)
was replaced by Jodie F. Maesaka-Hirata in Gordon’s amended complaint.
Faatuila Pula was dismissed by stipulation before trial. At trial, Gordon
orally moved to dismiss the claims against Francis Sequiera, William Rushing,
Michael Taamilo, Aaron Mirafuentes, and Gene Pomeroy. An order dismissing
with prejudice all claims against those defendants was filed after trial.
Many causes of action were also dismissed or are no longer being
pursued on appeal. In his first cause of action, Gordon originally asserted
42 U.S.C. § 1983 claims for alleged violations of his rights under the
Fourth, Eighth, and Ninth Amendments to the United States Constitution, and
he also alleged violations of Article I, Sections 2, 6, 7, 8, and 12 of the
Constitution of the State of Hawaiʻi. He also alleged intentional infliction
of emotional distress against the individual defendants in the second cause
of action, negligent infliction of emotional distress in the third cause of
action, and negligent training, supervision, and/or discipline by Jodie F.
Maesaka-Hirata and the State in the fifth cause of action.
Before trial, the circuit court granted the Defendants’ motion for
summary judgment in part, dismissing Gordon’s 42 U.S.C. § 1983 claims against
the State and the individual defendants in their official capacities, but
denying the motion with respect to Gordon’s 42 U.S.C. § 1983 and negligence
claims against Cho.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
1. The circuit court’s findings of fact
The circuit court found the following facts relevant to the
issues on certiorari.
a. Gordon’s pretrial detention
On August 22, 2010, Gordon was arrested on charges of seven
counts of sexual assault in the first degree, one count of
attempted sexual assault in the first degree, four counts of
sexual assault in the third degree, one count of promoting
prostitution, and one count of kidnapping in the first degree.
From August 26, 2010, to June 16, 2011, Gordon was held in
maximum security custody at OCCC and HCF while he awaited trial
on his criminal case.
b. Initial custody classification and conditions
On August 26, 2010, Department of Public Safety (“DPS”)
employee Faatuila Pula (“Pula”) conducted Gordon’s initial
intake interview at OCCC and filled out a Jail Initial Custody
Instrument (“Initial Custody Instrument”) to determine his
custody status. This document was completed using information
from the Hawai‘i Criminal Justice Inquiry System, the National
Crime Information Center, and a brief interview with Gordon.4
4
The Initial Custody Instrument established Gordon’s custody status by
assigning predetermined point values to various aspects of his personal,
criminal, and institutional history. Specifically, the Initial Custody
Instrument evaluated Gordon’s age, the severity of his current charges, his
prior convictions, his “history of assaultive behavior,” his escape history,
and his “pending charges or detainer.” Gordon’s history of prior convictions
(continued. . .)
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
After completing the Initial Custody Instrument, Pula determined
that Gordon had a total of nineteen “points” and accordingly
classified Gordon as a maximum custody detainee.5
Based on this custody classification, Gordon was placed in
maximum security custody in the OCCC Holding Unit for thirty
days. While there, Gordon was alone in a small cell for twenty-
three hours per day, had limited access to showers and reading
materials, and was not permitted any phone calls. Gordon
requested mental health services during the one-month detainment
in the OCCC Holding Unit, but was never provided with any.
c. September 2010 custody evaluation
On September 22, 2010, an administrative program committee
(“the Committee”) conducted a hearing to further evaluate
Gordon’s security custody classification, programming needs, and
whether housing at OCCC was appropriate for him. Cho, a DPS
correctional supervisor, was the Committee’s chairperson.6 When
evaluating an inmate’s security classification and housing
(. . . continued)
and “history of assaultive behavior” both took into account the number and
severity of his prior convictions, including petty misdemeanors,
misdemeanors, and felonies.
5
According to the Initial Custody Instrument, a score of zero to eight
points yielded a security classification of minimum custody, a score of nine
to seventeen points resulted in a classification of medium custody, and a
score of eighteen points or greater resulted in a maximum custody
classification.
6
The other members of the Committee were Aaron Mirafuentes and Michael
Taamilo, who were dismissed as defendants at trial.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
needs, the Committee can consider “all aspects regarding an
inmate,” including the inmate’s institutional file, current
charges, prior convictions, and the inmate’s own testimony.
Accordingly, Cho and the Committee considered Gordon’s own
statements that he did not think he should be a maximum custody
detainee, had done reasonably well at OCCC, and that there was
an error concerning his initial custody classification because
it was based in part on charges that were not actually pending.7
The Committee decided, however, that Gordon should remain
at the maximum custody level and should be housed at HCF High
Security. It notified him of this decision in a written
document designated as an “Amended Notice of Programming
Results” (“Programming Results”). The Programming Results
acknowledged that Gordon had “not received any major
misconducts” since being admitted to OCCC. However, Cho and the
Committee decided that Gordon should remain as a maximum custody
detainee, in solitary confinement, for the following reasons:
- The nature and seriousness of his current charges;
- The number and kind of his prior convictions;
- His extensive criminal history and numerous periods
of incarceration;
- His failure to comply with two residential drug
treatment programs;
7
Based on her review of the Hawai‘i Criminal Justice Inquiry System, Pula
believed that Gordon had an unrelated but pending Sex Assault in the First
Degree charge in Hawai‘i, and Gordon’s failure to appear at a hearing for that
charge was counted as a pending or no-show appearance for calculating his
custody status. Sometime after his initial classification, it was discovered
that Gordon did not actually have a pending sexual assault charge; the 2006
charge had in fact been resolved before he was arrested in August 2010.
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
- Leaving the state without permission while on
probation;
- His extradition to Hawaii;
- The fact that [Gordon] was on probation when charged
with his current offenses;[8]
- His $1,000,000.00 bail amount; and
- [O]ther factors identified in the committee’s Amended
Notice of Programming Results.
Additionally, the Committee noted Gordon’s probation status,
unpaid restitution amounts, and the opinion of his probation
officer that his case was “questionable.”9 The Committee
provided final comments explaining its decision:
The Committee concurs with [the Initial Custody Instrument]
that classified Mr. GORDON as MAX and also recommends that
he be housed accordingly at Halawa High Security. The
Committee deems MR. GORDON a high-risk inmate and also, a
high flight risk. OCCC is inappropriate housing for Mr.
GORDON because OCCC is not able to provide MR. GORDON with
the high degree of direct supervision that he requires.
According to Cho, an inmate classified as maximum security
“needs more direct supervision” by correctional officers,
especially when outside of his or her cell, and the Committee
felt that OCCC was unable to provide the level of supervision
required for Gordon. In evaluating his custody status, Cho
8
The State represents that “Gordon was arrested and detained as a
pretrial detainee” [39:2] and does not argue that Gordon was held in custody
for alleged violations of conditions of probation for offenses for which he
had already been convicted. This case is therefore analyzed based on the
constitutional rights of pretrial detainees, who cannot be subjected to
punishment. Bell, 441 U.S. at 535. Regardless, post-conviction defendants
still have constitutional rights against cruel and unusual punishment. See
Bell, 441 U.S. at 535 n.16 (“A sentenced inmate . . . may be punished,
although that punishment may not be ‘cruel and unusual’ under the Eighth
Amendment.”); State v. Guidry, 105 Hawai‘i 222, 237, 96 P.3d 242, 257 (2004)
(explaining the proportionality test of the prohibition on “cruel and
unusual” punishment in Article I, Section 12 of the Hawai‘i Constitution).
9
The Programming Results did not indicate when or how the Committee
learned the probation officer’s opinion, nor did it indicate which case —
Gordon’s pending case or his probation case — was “questionable,” or what
“questionable” meant.
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
never harbored malice or ill-will toward Gordon and did not
believe Gordon was punished when he was placed in maximum
custody conditions.
Gordon filed a grievance challenging the Committee’s
decision on September 29, 2010.
d. October 2010 Exception Case Form
On October 5, 2010, Cho received a memorandum from her
supervisor, Lance Rabacal (“Rabacal”). The memorandum
instructed Cho to “adhere to the directive process that has been
consistently utilized at our facility pertaining to MAX custody
inmates,” which was attached. That memorandum, originally
written by a former OCCC warden in November 1996, laid out the
State’s “arrangement with the ACLU” (“ACLU Memo”) regarding
procedures for processing maximum custody pretrial detainees.
The ACLU Memo provided that pretrial detainees classified as
maximum custody “shall be housed in the [OCCC] Holding Unit for
30 days,” and “[i]f the inmate remains misconduct free and is
not a management problem, OCCC shall then reduce the inmate’s
custody to Medium and re-house in general population.” It also
provided that “if the inmate incurs misconducts during the 30-
day period, and/or is a management problem, he shall be
transferred to HCF as a Max custody.” According to Rabacal, the
ACLU Memo was “used as a guideline to determine when a
recommendation to reduce custody” should be considered.
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
On or about October 12, 2010, an Exception Case Form was
started for Gordon under Cho’s name. This form noted that
Gordon had “not shown nor accrued any institutional behavioral
misconducts within the OCCC holding unit” and recommended a
medium custody classification “[b]ased on 10/5/10 OCCC MAX
CUSTODY INMATES directive from Lance Rabacal.” The Exception
Case Form was sent to the DPS Classification Office, which
considers the totality of the circumstances when making the
decision to reduce or maintain an inmate’s custody level.
Linda Chun (“Chun”), an officer in the Classification
Office, denied Gordon’s Exception Case Form on October 19, 2010.
Chun recorded the reasoning for her decision on the Exception
Case Form itself, noting Gordon’s behavior in the OCCC Holding
Unit had been satisfactory thus far, but explaining that she
thought he should remain in maximum custody for the following
reasons:
[T]his case still presents a number of risk factors.
Current charges are serious & violent in nature. As a
result, subject has a high bail amount. Subject has an
extensive criminal history & also has had numerous periods
of incarceration. Subject has failed to profit from
previous experience with probation and incarceration.
Substance abuse issues have not been addressed due to
subject’s discharge from program for non-compliance with
program rules.
Chun believed, based on her training, experience, and the
reasons she cited, that it was reasonable to place a pretrial
detainee in maximum security housing.
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The disapproved Exception Case Form was submitted to Deputy
Director of Corrections Tommy Johnson (“Johnson”) for review.
On October 21, 2010, Johnson denied Gordon’s request because he
believed Chun’s statements on the Exception Case Form were true,
although he had no personal knowledge of the basis for the
statements. Johnson did not believe Gordon’s custody level was
punishment.
e. Subsequent grievances and conditions at HCF
From September 29, 2010, through March 24, 2011, Gordon
filed eight Inmate Complaint/Grievances challenging his
classification and placement in solitary confinement. Gordon
sought reclassification to medium custody and transfer to OCCC,
but none of his grievances were granted.
Gordon was transferred to HCF on October 25, 2010, and was
placed in maximum custody. As a pretrial detainee at HCF, he
was alone in his cell for twenty-three hours per day, was given
forty-five minutes to an hour of recreational time five days a
week, had no access to a shower on weekends, and was only
allowed noncontact visits with his attorney. He was strip
searched daily and searched again each time he returned to his
cell. Gordon had limited access to phone calls, did not have
access to a commissary, and was denied access to programs.
According to Monica Lortz (“Lortz”), an HCF Corrections
Supervisor, DPS policy requires the custody status of every
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
maximum custody inmate, whether pretrial detainee or sentenced
prisoner, to be reassessed once a year. In June 2011, at the
instruction of the deputy warden and after Gordon had been at
HCF for eight months, Lortz reevaluated Gordon’s custody status
using a Jail Inmate Custody Review Instrument (“Custody Review
Instrument”). After completing the Custody Review Instrument,
Lortz assigned Gordon a total of thirteen points, which
corresponded to a medium custody level.10 Gordon’s custody level
was therefore reduced from maximum to medium, and he was
returned to OCCC on June 16, 2011.
After Gordon was sentenced for his pending charges in
September 2011, he was returned to HCF.11 At the time of the
trial in his civil case, Gordon was held at HCF in medium
security custody.
2. The circuit court’s conclusions of law
The circuit court rendered the following conclusions of law
relevant to the issues on certiorari.
10
The Custody Review Instrument employed a point system similar to the
Initial Custody Instrument, but limited its consideration of Gordon’s
criminal history to felony convictions and escapes within the past ten years,
and institutional misconduct within the past twelve months. According to the
Custody Review Instrument, male inmates with a total of zero to nine points
resulted in a security classification of minimum custody, ten to fifteen
points resulted in a medium custody classification, and a point total greater
than sixteen resulted in a maximum custody classification.
11
Gordon testified that he was eventually convicted of “sex assault,
promotion of prostitution, kidnapping, and drug promotion” in August 2011,
and was sentenced to ten years of imprisonment with the possibility of
parole, with a mandatory minimum of three years and four months.
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
a. Gordon’s 42 U.S.C. § 1983 claim
Citing the United States Supreme Court’s opinion in Bell,
the circuit court stated that pre-trial detainees have a
substantive due process right against custodial restrictions
that amount to punishment, but also that not every condition
imposed during pretrial detention amounts to punishment. To
determine whether a condition is punishment, the circuit court
determined that it must look to whether the restrictions evince
a punitive purpose or intent, and in the absence of an express
intent to punish, it must then consider whether punitive intent
can be inferred from the nature of the restriction. The circuit
court further noted that whether punitive intent can be inferred
generally turns upon whether an alternative purpose to which the
restriction may rationally be connected is assignable for it,
and whether the restriction appears excessive in relation to the
alternative purpose assigned to it.
The circuit court concluded that Gordon’s constitutional
rights were not violated based on the lack of substantive
evidence showing that Defendants categorized him as a maximum
custody pre-trial detainee purely to impose punishment upon him.
Furthermore, the circuit court concluded the conditions to which
Gordon was subject as a maximum custody detainee were
“reasonably related to a legitimate government objective which
is to maintain a safe and secure correctional facility,” and
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
were no different from the restrictions and conditions of any
other maximum custody inmates. The circuit court also concluded
that Gordon did not prove “that the conditions of maximum
custody imposed by Defendants to maintain a safe and secure
correctional facility were excessive to accomplish such
objective nor expressly intended as punishment,” and that “the
restrictions and conditions [Gordon] was subjected to did not
amount to punishment.”12
Determining that Cho complied with the guidelines of the
ACLU Memo, the circuit court also concluded that Cho was
12
The circuit court compared Gordon’s case to a number of earlier federal
cases:
Based on the totality of the facts, various documents in
evidence and credible trial testimony and the lack of any
evidence to the contrary, the court concludes that the
restrictions and conditions [Gordon] was subjected to did
not amount to punishment. Compare [Bell, 441 U.S. 520]
(holding that double-bunking, body-cavity searches, the
prohibition against the receipt of packages, or the room-
search only rule did not amount to punishment under the
facts of the case), and Brock v. Rutherford, 468 U.S. 576(U.S. 1984) (holding that a blanket prohibition on contact
visits with pretrial detainees and shakedown searches of
pretrial detainees’ cells outside their presence does not
amount to punishment), with Anela v. Wildwood, 790 F.2d
1063 (3rd Cir. N.J. 1986) (holding that failing to provide
beds or mattresses and food and drinking water amounted to
punishment), and Demery v. Arpaio, 378 F.3d 1020, 1033 (9th
Cir. Ariz. 2004) (holding that the sheriff’s policy of
transmitting live images over the internet of pretrial
detainees by webcam was an excessive response to the
purpose assigned to it).
None of these cases dealt with solitary confinement, although Bell and
Brock addressed searches and non-contact visitation similar to what Gordon
experienced. Gordon’s claim appears to challenge his maximum security
classification as a whole, rather than any specific procedure. We therefore
address whether maximum security custody as a whole, as Gordon experienced
it, amounted to punishment.
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
entitled to qualified immunity from Gordon’s 42 U.S.C. § 1983claims “because she did not knowingly violate [Gordon’s]
Constitutional rights” and Gordon did not suffer punishment.
b. Gordon’s negligence claim
The circuit court determined that “Cho, individually, is
afforded the protections of a qualified privilege as to
[Gordon]’s state law claims because [Gordon] did not prove by
clear and convincing evidence that Defendant Cho was motivated
by malice and not by an otherwise proper purpose.” Accordingly,
the circuit court ordered judgment to be entered for Cho.13
C. ICA Proceedings
On appeal, Gordon challenged the circuit court’s findings
and conclusions that (1) Gordon’s initial custody classification
was correct; (2) the conditions to which he was subjected did
not constitute punishment; (3) the Defendants acted reasonably
in their application of their classification procedure; and (4)
Cho was entitled to qualified immunity.
In a memorandum opinion, the ICA affirmed the circuit
court’s judgment. Gordon v. Maesaka-Hirata, No. CAAP-14-914
(App. May 30, 2017) (mem. op.) at 2, 28. The ICA noted that in
13
The circuit court did not address Gordon’s state constitutional due
process claim. It also did not specifically address Gordon’s intentional
infliction of emotional distress claim. In any event, the circuit court
concluded the Defendants were not liable for negligent infliction of
emotional distress, which required less proof, and Gordon does not pursue the
emotional distress causes of action on certiorari.
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
deciding to keep Gordon in maximum security custody, Cho and the
Committee, as well as Chun in the Classification Office, relied
on factors such as “the nature of the current charges, bail
amount, criminal history, failure to complete probation, and
unaddressed substance abuse issues[.]” Gordon, mem. op. at 19-
20. The ICA concluded that these factors, among other things,
provided “substantial evidence [to] support . . . the Circuit
Court’s conclusion that the individual prison officials acted
reasonably in keeping Gordon in Max Custody.” Gordon, mem. op.
at 19.
The ICA acknowledged that “while Gordon has no
constitutional right to a certain classification, he possesses a
right to be free from punishment prior to an adjudication of
guilt.” Gordon, mem. op. at 23. “[O]n the totality of the
record of this case,” the ICA concluded that the circuit court
did not err “in determining that Gordon’s Max Custody did not
constitute pre-trial punishment.” Gordon, mem. op. at 20. In
the ICA’s view, “Gordon cite[d] no evidence or legal authority
that his Max Custody classification constituted punishment” and
“the evidence led to the conclusion that the conditions were
reasonably related to legitimate government objectives related
to the safety and security of the correctional facilities and
that they were not excessive for that purpose.” Gordon, mem.
op. at 19-20.
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The ICA determined Gordon did not show evidence of punitive
intent and failed to show there was no alternative reason for
his treatment other than punishment, or that his treatment was
excessive in relation to its alternative purpose. Gordon, mem.
op. at 24. The ICA also observed that Gordon “failed to
establish that the procedure detailed in the ACLU Memo is
guaranteed to him” or that it otherwise overrides the deference
owed to prison officials. Gordon, mem. op. at 24-25. The ICA
concluded, instead, that “[t]he reasons for keeping Gordon in
Max Custody were clearly articulated and appear to be related to
the legitimate nonpunitive governmental objective of security
and safety. Gordon has not shown that he was subject to an
arbitrary action of government.” Gordon, mem. op. at 25,
(citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
Finally, with respect to Cho’s state law qualified
immunity, the ICA held that the circuit court did not err and
that Gordon failed “to meet his burden under [Towse v. State, 64
Haw. 624, 647 P.2d 696 (1982),] to establish that Cho was
motivated by malice or otherwise improper purpose.” Gordon,
mem. op. at 26-27.
D. Application for Writ of Certiorari
Gordon presents three questions in his application for writ
of certiorari (“Application”):
A. Whether the ICA gravely erred in holding that the
restrictions and conditions of Petitioner’s solitary
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
confinement in Maximum Custody for nine months and twenty-
two days did not constitute unlawful pretrial punishment
where, inter alia, (1) Petitioner was locked in an
isolation cell for approximately twenty-three hours each
day, (2) Petitioner was generally allowed only non-contact
visits with his attorney, and (3) Petitioner was subjected
to multiple strip searches on a daily basis.
B. Whether the ICA gravely erred in holding that [DPS]
officials did not act arbitrarily and capriciously in
holding Petitioner in Maximum Custody where (1)
Petitioner’s initial custody level was calculated
incorrectly; (2) DPS failed to abide by established inmate
classification policies and procedures; and (3) Petitioner
was not an escape risk, had never assaulted anyone while in
prison, and had never been a threat to prison discipline
and good order.
C. Whether the ICA gravely erred in holding that Respondent
PETRA CHO was entitled to qualified immunity and that
Petitioner failed to establish that Respondent CHO was
motivated by malice and not by an otherwise proper purpose
in confining Petitioner to Maximum Custody where (1) the
incorrect calculation resulting in Petitioner’s initial
custody level was known to Respondent CHO, and (2)
Respondent CHO refused to correct Petitioner’s erroneous
custody classification within a reasonable period of time.
[SC DOC 1:2]
III. Standards of Review
A trial court’s findings of fact are reviewed under the
clearly erroneous standard:
A finding of fact is clearly erroneous when, despite
evidence to support the finding, the appellate court is
left with the definite and firm conviction in reviewing the
entire evidence that a mistake has been committed.
A finding of fact is also clearly erroneous when the record
lacks substantial evidence to support the finding. We have
defined ‘substantial evidence’ as credible evidence which
is of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion.
In re Grievance Arbitration Between State of Haw. Org. of Police
Officers (“SHOPO”), 135 Hawai‘i 456, 461–62, 353 P.3d 998, 1003–
04 (2015) (quoting Daiichi Haw. Real Estate Corp. v. Lichter,
103 Hawai‘i 325, 337, 82 P.3d 411, 423 (2003)).
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Conclusions of law are ordinarily reviewed under the
right/wrong standard. Estate of Klink ex rel. Klink v. State,
113 Hawai‘i 332, 351, 152 P.3d 504, 523 (2007). A conclusion of
law that is supported by the trial court’s findings of fact and
reflects an application of the correct rule of law will not be
overturned. 113 Hawai‘i at 351, 152 P.3d at 523. However, when
a conclusion of law presents mixed questions of fact and law, we
review it under the clearly erroneous standard because the
court’s conclusions are dependent on the facts and circumstances
of each individual case. 113 Hawai‘i at 351, 152 P.3d at 523.
Additionally, in reviewing a trial court’s decision, that
court’s label of a finding of fact or conclusion of law is not
determinative of the standard of review. Crosby v. State Dep’t
of Budget & Fin., 76 Hawaiʻi 332, 340, 876 P.2d 1300, 1308
(1994).
IV. Discussion
A. Gordon’s 42 U.S.C. § 1983 Claim
In establishing a civil action for deprivation of rights,
42 U.S.C. § 1983 provides, in relevant part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, 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. . . .
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
42 U.S.C. § 1983 (1996).
Gordon’s 42 U.S.C. 1983 claim arises from his assertion
that the conditions of his pretrial detainment, more than nine
months in what amounted to solitary confinement, constituted
punishment in violation of his due process rights under the
Fourteenth Amendment of the United States Constitution.14 [SC
DOC 1:7] “To make out a cause of action under section 1983,
plaintiffs must plead that (1) the defendants acting under color
of state law (2) deprived plaintiffs of rights secured by the
Constitution or federal statutes.” Gibson v. United States, 781
F.2d 1334, 1338 (9th Cir. 1986) (citation omitted). A defendant
acts “under color of state law” when the defendant exercises
power “possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.” United States v. Classic, 313 U.S. 299, 326 (1941)
(citations omitted). The Defendants have never disputed that
Cho, a DPS correctional supervisor, acted under color of state
law when she and the Committee rendered their custody decision.
14
Gordon’s Amended Complaint asserted that the Defendants violated his
due process rights under the Hawai‘i State Constitution as well. However, 42
U.S.C. § 1983 claims can only arise under federal laws and the federal
constitution. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (“It is
for violations of such constitutional and statutory rights that 42 U.S.C. §
1983 authorizes redress; that section is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere conferred by
those parts of the United States Constitution and federal statutes that it
describes.”).
20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Rather, this case turns on whether Gordon proved that Cho
violated his rights under federal law.15
Under the due process clause of the Fourteenth Amendment to
the United States Constitution, “a detainee may not be punished
prior to an adjudication of guilt in accordance with due process
of law.”16 Bell, 441 U.S. at 536. “A person lawfully committed
to pretrial detention has not been adjudged guilty of any
crime,” and therefore while “the Government concededly may
detain him to ensure his presence at trial and may subject him
to the restrictions and conditions of the detention facility,”
the government may only do so if those conditions of confinement
“do not amount to punishment, or otherwise violate the
Constitution.”17 441 U.S. at 536-37.
15
Although Gordon’s Application does not explicitly restrict his 42
U.S.C. § 1983 claim to Cho, such actions are available against government
officials in their individual capacity only. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and §
1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”). Furthermore, it appears Gordon’s claims against Jodie F.
Maesaka-Hirata involve only state law negligent supervision and training
theories, which Gordon has not pursued on certiorari.
16
Bell addressed conditions at a federal detention facility, and
therefore rested on the due process clause of the Fifth Amendment. 441 U.S.
at 530. However, the Bell court noted that when states seek to impose
punishment without an adjudication of guilt, “the pertinent constitutional
guarantee is the Due Process Clause of the Fourteenth Amendment.” Bell, 441
U.S. at 535 n.16 (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)).
17
Pretrial detainees may be punished for violating prison rules if they
are afforded due process for those violations. See, e.g., Mitchell v.
Dupnik, 75 F.3d 517, 524 (9th Cir. 1996) (opining that Bell recognized prison
officials’ need to preserve “internal order and discipline,” and holding
“pretrial detainees may be subjected to disciplinary segregation only with a
due process hearing to determine whether they have in fact violated any
rule.”). What Bell makes clear is that prison officials cannot, even
(continued. . .)
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
“Not every disability imposed during pretrial detention
amounts to ‘punishment’ in the constitutional sense,” and
indeed, pretrial detainees are to expect some lawful curtailment
of their liberties. See Bell, 441 U.S. at 537 (“[T]he fact that
. . . detention interferes with the detainee’s understandable
desire to live . . . with as little restraint as possible during
confinement does not convert the conditions or restrictions of
detention into punishment.”). Restrictions “that are reasonably
related to the institution’s interest in maintaining jail
security do not, without more, constitute unconstitutional
punishment, even if they are discomforting and are restrictions
that the detainee would not have experienced had he been
released while awaiting trial.” 441 U.S. at 540.18
Courts must therefore decide whether the condition of
confinement “is imposed for the purpose of punishment or whether
it is but an incident of some other legitimate governmental
(. . . continued)
unintentionally, punish detainees for the crimes for which they were arrested
until there has been “an adjudication of guilt in accordance with due process
of law” — in other words, a conviction. 441 U.S. at 535; accord Sandin v.
Conner, 515 U.S. 472, 484 (1995) (characterizing Bell as expressing “concern
that a State would attempt to punish a detainee for the crime for which he
was indicted via preconviction holding conditions”).
18
Bell, a case challenging the constitutionality of conditions of
confinement in a federally operated short-term custodial facility, held that
“double-bunking” of inmates; a rule prohibiting inmates from receiving
hardback books unless mailed directly from a publisher, bookstore, or book
club; a rule prohibiting inmates from receiving packages of food or personal
property except for one package at Christmas; a rule prohibiting inmates from
observing unannounced room inspections; and visual body cavity strip searches
after every contact visit with a person from outside the institution, did not
constitute unconstitutional punishment of pretrial detainees. 441 U.S at
541-42, 548-49, 553, 555, 558, 560-61.
22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
purpose.” 441 U.S. at 538 (citation omitted). The Bell court
elaborated on this standard:
Absent a showing of an expressed intent to punish on the
part of detention facility officials, that determination
generally will turn on “whether an alternative purpose to
which [the restriction] may rationally be connected is
assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned [to it].”
Thus, if a particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount
to “punishment.” Conversely, if a restriction or condition
is not reasonably related to a legitimate goal — if it is
arbitrary or purposeless — a court permissibly may infer
that the purpose of the governmental action is punishment
that may not constitutionally be inflicted upon detainees
qua detainees.
441 U.S. at 538-39 (citations and footnotes omitted). Thus,
under Bell, a pretrial detainee’s treatment amounts to
punishment when: (1) there is “a showing of an expressed intent
to punish on the part of detention facility officials;” (2) the
condition or restriction is not “reasonably related to a
legitimate goal;” or (3) the condition or restriction is
“excessive in relation to the alternative purpose assigned to
it.” 441 U.S. at 538-39.
Courts must be mindful that a pretrial punishment claim
triggers due process inquiries that “spring from constitutional
requirements and . . . judicial answers to them must reflect
that fact rather than a court’s idea of how best to operate a
detention facility.” 441 U.S. at 539. Because prison
administration is difficult and its problems are not readily
ascertained or solved by the judiciary, “[p]rison administrators
23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
. . . should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and
maintain institutional security.” 441 U.S. at 547 (citations
omitted).
The deference owed to prison officials is not unlimited,
however, and must yield to constitutional principles. See Brown
v. Plata, 563 U.S. 493, 511 (2011) (“Courts may not allow
constitutional violations to continue simply because a remedy
would involve intrusion into the realm of prison
administration.”) (citation omitted); accord Wolff, 418 U.S. at
555-56 (“There is no iron curtain drawn between the Constitution
and the prisons of this country.”). Courts should defer to the
expert judgment of prison officials unless there is “substantial
evidence in the record to indicate that the officials have
exaggerated their response to” their institutional order,
discipline, and security considerations. Bell, 441 U.S. at 548(quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).
Because Gordon argues all three parts of the Bell standard,
we address each part in turn.
1. The circuit court did not err by concluding that
Gordon’s treatment was not the result of Cho’s express
intent to punish him.
Gordon asserts he demonstrated the Defendants’ “expressed
intent to punish” him because he showed that when they
24
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
classified him, they emphasized his criminal history, pending
charges, and “failure to ‘profit’ from prior law enforcement
contacts.” Their focus on these factors, he argues, makes it
“apparent that DPS officials intended for [Gordon’s] solitary
confinement to serve as retribution and deterrence, which the
United States Supreme Court has recognized as ‘the traditional
aims of punishment[.]’”
Gordon’s only remaining 42 U.S.C. § 1983 claim is against
Cho. What the other State employees may have intended is not at
issue on certiorari. Although Bell did not explain the term
“expressed intent,” something is “express[ed]” when it is
“[c]learly and unmistakably communicated” or “stated with
directness and clarity.” Black’s Law Dictionary 701 (10th ed.
2014). The circuit court not only found the Defendants had no
expressed intent to punish Gordon, but that Cho, specifically,
“testified credibly that she has never had any malice or ill-
will towards [Gordon] or would knowingly violate [Gordon’s]
constitutional rights and [Gordon] produced no evidence to the
contrary.” These findings of fact, which are based upon the
circuit court’s credibility determinations, are not clearly
erroneous. See Tamashiro v. Control Specialist, Inc., 97 Hawaiʻi
86, 92, 34 P.3d 16, 22 (2001) (“[T]he credibility of witnesses
and the weight to be given their testimony are within the
25
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
province of the trier of fact and, generally, will not be
disturbed on appeal.”).
The circuit court did not err in concluding Cho did not
express intent to punish Gordon. Indeed, in addition to the
circuit court’s finding with respect to Cho, the testimony of
multiple witnesses indicates the DPS personnel handling Gordon’s
case believed they were following established procedure, and
thought maximum security custody was not punishment for pretrial
detainees with Gordon’s history.19 For the reasons below,
however, we nevertheless hold that the circuit court clearly
erred in concluding the restrictions and conditions of Gordon’s
detainment did not amount to punishment.
2. The circuit court erred by concluding that Gordon’s
treatment was reasonably related to a legitimate
government purpose.
In the absence of expressed intent to punish, “a court must
look to see if a particular restriction or condition, which may
19
Pula calculated Gordon’s initial custody level using only a standard
DPS form and the information she had at the time. Chun denied Gordon’s case
exception because, based on her experience, she thought it reasonable to
place pretrial detainees in maximum security for the reasons Cho and the
Committee considered. Likewise, in reviewing Gordon’s Exception Case Form,
Johnson believed Chun’s statements and therefore thought it was reasonable to
keep Gordon in maximum custody.
These subjective beliefs, however, are not relevant to consideration of
the objective parts of the Bell test discussed below. See Bell, 441 U.S. at
538-39 (providing two ways to identify punishment in the absence of expressed
intent to punish); see also Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473-74
(2015) (opining that “proof of intent (or motive) to punish” is not required
to prevail on a Bell punishment claim, and “a pretrial detainee can prevail
by providing only objective evidence” that his or her treatment lacked
rational relationship or was excessive in relation to a legitimate
governmental purpose).
26
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
on its face appear to be punishment, is instead but an incident
of a legitimate nonpunitive governmental objective.” Bell, 441
U.S. at 539 n.20. “[I]f a particular condition or restriction
of pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount to
‘punishment.’” 441 U.S. at 539. However, “if a condition or
restriction is arbitrary or purposeless, a court may permissibly
infer that the purpose of the government action is
punishment[.]” Bell, 441 U.S. at 539. Some legitimate
interests that detention facility officials may seek to further
include ensuring the detainee’s presence at trial, maintaining
order and security at the institution, and preventing contraband
from reaching detainees. 441 U.S. at 540. “Retribution and
deterrence,” the Bell court made clear, “are not legitimate
nonpunitive governmental objectives.” 441 U.S. at 539 n.20.
Gordon disputes the existence of a legitimate reason for
his classification and segregation, and argues that his
treatment by Cho violated his rights because it was “arbitrary
and capricious.”20 The circuit court concluded “the Defendants’
20
Gordon cites Coulter v. State, 116 Hawai‘i 181, 185, 172 P.3d 493, 497
(2007), for the proposition that “[g]overnment action may . . . be found to
be arbitrary and capricious where an agency fails to follow the rules it sets
out for itself.” Coulter had to do with the Hawai‘i Paroling Authority’s
(“HPA”) failure to follow its own minimum term guidelines, which it was
required by statute to adopt and then obey. 116 Hawai‘i at 185, 172 P.3d at
497.
Because we decided the HPA violated its own guidelines, we explicitly
declined to reach the constitutional due process question. 116 Hawai‘i at
(continued. . .)
27
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
conditions imposed on individuals categorized as maximum custody
and, experienced by [Gordon], [were] reasonably related to a
legitimate government objective which is to maintain a safe and
secure correctional facility.” The ICA agreed, opining the
Defendants’ reasons for keeping him in solitary confinement were
“clearly articulated” and related to prison security and safety.
Gordon, mem. op. at 11.
Upon our review of the circuit court’s conclusion that the
reasons Cho gave as Committee chair for continuing Gordon in
maximum custody or solitary confinement were reasonably related
to a legitimate government purpose, we are left with a definite
and firm conviction that a mistake has been made. We conclude
Cho’s treatment of Gordon was not reasonably related to a
legitimate, nonpunitive government interest, and therefore was
punishment.
Among other things, Gordon asserts his treatment was
arbitrary because his initial custody level was based on
inaccurate information, which Cho failed to correct, and also
because Cho failed to follow the dictates of the ACLU Memo.
With respect to the ACLU Memo, the circuit court concluded that
(. . . continued)
185, 172 P.3d at 497. However, we did note “[t]he proposition that the
government must follow the rules it sets out for itself is not
controversial,” and cited other authority holding that “[e]ven if an agency
is not required to adopt a rule, once it has done so it must follow what it
adopted.” 116 Hawai‘i at 185, 172 P.3d at 497 (citing Peek v. Thompson, 980
P.2d 178, 181 (Or. App. 1999)).
28
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
“by submitting the Exception Form, . . . Cho did comply with the
guidelines of the [ACLU] Max Custody Memo.” The ACLU Memo,
however, does not characterize itself as a “guideline” and does
not address Exception Case Forms or approval by the
Classification Office; instead, it plainly instructs OCCC
Holding Unit staff to (1) house all new inmates classified as
maximum custody in the Holding Unit for thirty days; and (2)
reduce the inmate’s custody status to medium and return that
inmate to the OCCC general population “[i]f the inmate remains
misconduct free and is not a management problem[.]”
Cho’s testimony at trial was that she actually did not know
the ACLU Memo existed when the Committee met to review Gordon’s
custody status, although she “was aware that after 30 days [the
Committee] could review the inmate.” It is unclear why Cho was
unaware of the ACLU Memo, or whether the procedures stated
within it had been officially modified or abandoned. But,
whether or not the ACLU Memo was a guideline or a binding
directive, Cho’s treatment of Gordon was the result of
generalized assumptions of dangerousness and flight risk not
supported by the facts.21
21
The record reveals the Defendants employed at least four different
methods of evaluating Gordon’s classification: Pula set Gordon’s initial
classification using the Initial Custody Instrument, Cho and the Committee
performed a second evaluation, a third custody review by Chun was reviewed by
Johnson, and Gordon’s final evaluation was done by Lortz, using the Custody
Review Instrument.
(continued. . .)
29
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Cho and the Committee’s review of Gordon’s custody status
was subjective: they were permitted to consider any factor
deemed relevant, with apparently unlimited discretion in
weighing those factors.22 To justify Gordon’s continued
placement in maximum security custody, Cho and the Committee
based their September 22, 2010 decision on factors that were not
reasonably related to a legitimate government purpose. They
asserted Gordon was a “high-risk” and “high flight risk”
detainee based on his pending charges, prior convictions,
“discharge and failure to comply with 2 residential drug
treatment programs while on probation,” non-compliance with
reporting to his probation officer when leaving Hawai‘i,
extradition back to Hawai‘i while on probation, and the bail
amount for his pending charges. These facts, however, were not
relevant to achieving the Defendants’ “legitimate government
purposes” of ensuring that Gordon appeared for trial and did not
disrupt institutional order and security in the meantime.
Cho did not identify what kind of “high risk” Gordon
presented. There is nothing in the record that identifies the
kind of conduct she feared Gordon would engage in while
(. . . continued)
We address only Cho’s conduct because she is the sole defendant against
whom Gordon’s 42 U.S.C. § 1983 claim is pursued.
22
It is unclear whether DPS policy or guidelines with respect to
classification review existed at the time of trial. No written policies,
aside from the ACLU emo, were offered as evidence.
30
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
detained. Although Gordon did leave Hawai‘i while on probation,
resulting in his extradition, there was no explanation as to how
absconding while on probation relates to escape from a secure
jail facility, such that Gordon would automatically be a “high
flight risk.” Furthermore, despite six prior incarcerations,
there was no evidence that Gordon had committed any
institutional misconduct, leaving little in the record to
support Cho’s belief that Gordon was a “high risk” inmate.
Indeed, there is no evidence in the record that Cho and the
Committee knew the factual bases for Gordon’s prior convictions
or pending charges.
Defendants never explained how Cho and the Committee’s
cited facts were predictors for disciplinary or management
problems in custody. It is obvious that solitary confinement
would effectively detain Gordon and guarantee his appearance at
trial, but, under the circumstances, solitary confinement was
not reasonably related to any legitimate, nonpunitive purpose.
In the absence of a link between Gordon’s treatment and the
resolution of any real management or security problem, Gordon’s
conditions of confinement only achieved retribution and
deterrence — “the traditional aims of punishment” — which “are
not legitimate nonpunitive governmental objectives.” Bell, 441
U.S. at 539 n.20 (citing Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168 (1963)); accord Demery v. Arpaio, 378 F.3d 1020, 1030-
31
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
31 (9th Cir. 2004) (“[D]eterrence does not qualify as a
nonpunitive goal with regard to pretrial detainees.”) (citation
omitted).
We acknowledge that courts should ordinarily defer to
prison administrators’ knowledge and expertise. Bell, 441 U.S.
at 547-48. On the facts in this record, however, it is apparent
that Cho and the Committee’s response to the threat Gordon
allegedly posed was exaggerated. See Bell, 441 U.S. at 548(encouraging deference to prison officials, unless substantial
evidence in the record suggests their response to an
institutional problem was exaggerated). Gordon’s maximum
security status meant that he was alone in a cell for twenty-
three hours per day with forty-five to sixty minutes of
recreational time only five days per week, no access to a shower
on the weekends, only non-contact visits with his attorney, and
strip searches every day and each time he returned to his cell.23
These conditions were imposed upon Gordon because Cho had non-
specific concerns about his future behavior, based on his past
conduct. Cf. Bell, 441 U.S. at 559 (upholding the use of visual
inspection of body cavities where officials were specifically
23
The circuit court found the Defendants “presented evidence that all MAX
custody inmates, whether pretrial or not, [were] treated under the same
conditions as” Gordon, but that the Defendants “also presented evidence that
[Gordon] was afforded additional benefits such as personal calls that were
not given to other inmates on the same floor.” The fact that Gordon received
additional privileges does not demonstrate that he was not punished, but
rather, could show that he was punished less than others.
32
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
concerned about concealment of drugs and contraband, and there
had been at least one instance of attempted trafficking of
contraband).
Because Cho relied on factors that were not relevant to
assessing Gordon’s present security needs, and focused on his
past conduct without a logical connection to present or future
threat, the circuit court and ICA clearly erred by concluding
Gordon’s placement in solitary confinement was reasonably
related to a legitimate government purpose.24 A pretrial
detainee can present serious and persistent threats to
institutional safety, security, and order, such that maximum
security conditions may be necessary to restrain them. See
Bell, 441 U.S. at 546 n.28 (“There is no basis for concluding
that pretrial detainees pose any lesser security risk than
convicted inmates. Indeed, it may be that in certain
circumstances they present a greater risk to jail security and
order.”). However, the record in this case does not support the
Defendants’ assertions that Gordon presented such a threat.
24
The record shows Chun relied on similar reasoning in denying Gordon’s
exception case form, and Johnson accepted Chun’s reasoning when reviewing
that decision. Chun and Johnson, however, were never defendants in this
case.
We note that other aspects of Gordon’s treatment may have been
inconsistent with achieving the Defendants’ legitimate nonpunitive goals.
For example, the Initial Custody Instrument counted Gordon’s misdemeanor and
petty misdemeanor convictions not once, but twice: first as part of Gordon’s
history of prior convictions, and again as part of his “history of assaultive
behavior.” In contrast, the Custody Review Instrument counted only felonies
within the last ten years, and focused on Gordon’s institutional history. It
is unclear why these evaluation methods differed to such an extent.
33
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Thus, we conclude the circuit court clearly erred by concluding
Gordon’s treatment by Cho was reasonably related to a legitimate
governmental objective, and therefore was not punishment.
3. The circuit court clearly erred by concluding Gordon’s
treatment was not excessive in relation to a
legitimate government purpose.
Under Bell, "the determination whether [pretrial]
restrictions and practices constitute punishment in the
constitutional sense depends on whether they are rationally
related to a legitimate nonpunitive governmental purpose and
whether they appear excessive in relation to that purpose." 441
U.S. at 561. Therefore, even if a pretrial detainee’s treatment
“is reasonably related to a legitimate governmental objective,”
a court may infer that the treatment is punishment if “it
appears excessive in relation to the alternative purpose
assigned [to it].” Bell, 441 U.S. at 538-39 (citations and
footnotes omitted). For example, although “loading a detainee
with chains and shackles and throwing him in a dungeon may
ensure his presence at trial and preserve the security of the
institution,” those harsh conditions would support a conclusion
that they were imposed to punish the detainee, in light of “so
many alternative and less harsh methods” that could achieve the
same objectives. Bell, 441 U.S. at 539 n.20.
Gordon asserts that even if there was a legitimate reason
for his classification and segregation, the conditions of his
34
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
confinement were excessive in relation to any alternative
purpose assigned to it. Bell, 441 U.S. at 538. In support of
his argument, he emphasizes that he was held in highly
restrictive conditions for more than nine months despite the
fact that he had shown “exemplary inmate behavior.” The circuit
court concluded “there was no evidence produced by [Gordon] to
prove by a preponderance of the evidence that the conditions of
maximum custody imposed by Defendants to maintain a safe and
secure correctional facility were excessive to accomplish such
objective[.]” The ICA agreed. Gordon, mem. op. at 11.
Gordon was retained in solitary confinement because Cho and
the Committee suspected that he posed a “high risk” or suspected
he would engage in “high flight risk” behavior. No witness
testified to any incidents of misbehavior by Gordon during the
incarceration period at issue, or during any of his prior
incarcerations. No witness testified to any specific threats to
institutional safety or order by Gordon. Even after spending
thirty days in the OCCC Holding Unit with no incidents of
misconduct, Cho and the Committee decided Gordon was generally a
“high risk” and “high flight risk” detainee based on his
criminal history and current charges, among other things. Any
justification for maximum security conditions should have
dissipated after the thirty-day holding period, during which
Gordon failed to exhibit the problematic behavior his past
35
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
convictions and pending charges supposedly indicated.
The record in this case shows that Cho imposed serious
restraints on a pretrial detainee who did not demonstrate a
serious threat to institutional safety or order. While solitary
confinement was undoubtedly effective at ensuring Gordon’s
appearance at trial, like the “chains and shackles” of Bell’s
hypothetical dungeon, the existence of less harsh methods of
achieving the same security goals supports the inference that
Gordon’s treatment was punishment. See Bell, 441 U.S. at 539
n.20 (opining that harsh conditions, “employed to achieve
objectives that could be accomplished in so many alternative and
less harsh methods,” can support the conclusion that the
conditions were imposed to inflict punishment).25
We emphasize that Gordon’s maximum security conditions were
harsh — solitary confinement has long been recognized as an
“infamous punishment” used to “mark [prisoners] as examples of
the just punishment of the worst crimes of the human race.” In
re Medley, 134 U.S. 160, 168-170 (1890). This point has been
effectively summarized by other courts. See, e.g., Davis v.
25
In light of the deference accorded to prison administrators in the
“adoption and execution of policies and practices . . . needed to preserve
internal order and discipline and to maintain institutional security,” Bell,
441 U.S. at 521, the availability of alternatives and less harsh methods does
not end a reviewing court’s inquiry as to whether a particular pretrial
restriction constitutes punishment. Rather, the existence of such
alternatives may indicate that the restriction imposed is excessive in
relation to the legitimate governmental purpose of maintaining institutional
safety and security.
36
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Ayala, 135 S.Ct. 2187, 2209-11 (2015) (Kennedy, J., concurring)
(summarizing the history and effects of long-term solitary
confinement). We also note that scientific research now
suggests even a few days in solitary confinement can have
negative effects on inmates’ mental health, even in inmates not
previously diagnosed with mental illness. See, e.g., Williams
v. Sec’y Pa. Dept. of Corr., 848 F.3d 549, 562, 566-69 (3d Cir.
2017), cert. denied 138 S.Ct. 357 (U.S. Oct. 16, 2017) (Nos. 17-
53, 17-5116) (summarizing scientific studies on the effects of
solitary confinement). We conclude that, in light of the lack
of articulable concerns and the harshness of Gordon’s
confinement, the circuit court clearly erred by concluding
Gordon’s treatment by Cho was not excessive in relation to a
legitimate nonpunitive goal.
Because we conclude that Gordon has established a
constitutional violation for his 42 U.S.C. § 1983 claim against
Cho, we must now address whether Cho is entitled to qualified
immunity.
4. Cho is not liable to Gordon under 42 U.S.C. § 1983 due
to qualified immunity under federal law.
The circuit court identified the federal qualified immunity
standard as follows:
12. Government officials who perform discretionary
functions have qualified immunity from liability for civil
damages when “their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Johnson v. Fankell,
37
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
520 U.S. 911, 914-15 [(1997)]; Gabbert v. Conn, 131 F.3d
793, 799 (9th Cir. 1997).
13. The qualified immunity inquiry is two-pronged.
The Court must ask whether the “conduct violated a
constitutional right” and whether “the right was clearly
established” at the time of the alleged misconduct. The
Court may conduct this two-pronged inquiry in any order.
Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. Haw. 2011).
The circuit court concluded Cho was entitled to qualified
immunity “because she did not knowingly violate [Gordon’s]
Constitutional rights[.]” In so concluding, the circuit court
clearly erred.
As the circuit court initially correctly noted, the
“clearly established right” portion of the two-part qualified
immunity standard employs a reasonableness test. Johnson, 520
U.S. at 914-15 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). To be more specific, federal courts employ a
“reasonable official” test: a right is clearly established
“when, at the time of the challenged conduct, [t]he contours of
[a] right [are] sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
(emphasis added). This standard “do[es] not require a case
directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.”26 al-Kidd,
26
The Ninth Circuit Court of Appeals previously characterized the clearly
established law standard as requiring “fair warning,” meaning that state
(continued. . .)
38
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
563 U.S. at 741 (emphasis added); accord Reichle v. Howards, 566
U.S. 658 (2012).
The United States Supreme Court has said that
“[q]ualified immunity gives government officials breathing room
to make reasonable but mistaken judgments about open legal
questions. When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”
al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)) (emphasis added). However, an official’s
subjective mental state is irrelevant to the qualified immunity
inquiry: rather, a court must evaluate the “objective legal
reasonableness” of the official’s conduct “in light of the legal
rules that were ‘clearly established’ at the time[.]” Anderson,
483 U.S. at 639.
Thus, although the Court stated that qualified immunity
does not protect those who “knowingly” violate the law, the
circuit court erred when it concluded Cho was entitled to
qualified immunity because she did not knowingly violate
(. . . continued)
officials are not entitled to qualified immunity “where the contours of the
right have been defined with sufficient specificity that a state official had
fair warning that [his or her] conduct deprived a victim of his [or her]
rights[.]” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003)
(citations omitted). However, it appears the United States Supreme Court now
requires greater specificity with respect to whether the law was “clearly
established.” See District of Columbia v. Wesby, 138 S.Ct. 577, 592 (2018)
(“It is not enough that the rule is suggested by then-existing precedent.
The precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.”)
39
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Gordon’s rights. In other words, although Cho would not be
entitled to qualified immunity if she knowingly violated
Gordon’s rights, she is not entitled to qualified immunity just
because she did not knowingly do so. Rather, the issue is
whether Gordon’s rights were sufficiently clear in September
2010 so that every reasonable official in Cho’s position would
have understood that Gordon’s constitutional rights were being
violated; the test is objective, not subjective.
Whether a right was clearly established under federal law
at the time the defendant acted is a “purely legal” question.
Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985). That
question of law is reviewable de novo on appeal. Elder v.
Holloway, 510 U.S. 510, 516 (1994). Thus, even if the circuit
court did not apply the proper standard, whether Gordon’s rights
were clearly established at the time Cho and the Committee made
their maximum custody/solitary confinement decision is a legal
question that we review de novo.
Upon a careful review, with respect to the first prong of
the qualified immunity inquiry, we have concluded for the
reasons stated in Part IV, Section A, subsections 2 and 3 above,
that Cho’s conduct violated Gordon’s Fourteenth Amendment due
process right to be free from pretrial punishment. With respect
to the second prong of the inquiry, however, we conclude that
Cho was entitled to qualified immunity because Gordon’s rights
40
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
were not sufficiently clear at the time Cho acted in 2010 so
that every reasonable official in Cho’s position would have
understood that Gordon’s constitutional rights were being
violated.
In 1979, Bell made clear that pretrial detainees may not be
punished for the crimes for which they were arrested before an
adjudication of their guilt. 441 U.S. at 535. Under Bell,
courts may infer that conditions of confinement are punishment
if they are the result of an expressed intent to punish, if they
are not rationally related to a legitimate alternative purpose,
or if they are excessive in relation to that legitimate
alternative purpose. 441 U.S. at 538-39. In evaluating an
official’s claim of qualified immunity, however, courts should
not “define clearly established law at a high level of
generality.” al-Kidd, 563 U.S. at 742. Instead, the clearly
established law inquiry “must be undertaken in light of the
specific context of the case, not as a broad general
proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam) (internal citation omitted). Turning to the specific
context of this case, we conclude that in 2010, the law was not
sufficiently clear so that every reasonable official in Cho’s
position would have understood that keeping Gordon in maximum
security custody, based on the criteria applied, would amount to
punishment in violation of his due process rights.
41
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
In Bell, the conditions challenged were imposed on all
pretrial detainees, and prison officials’ explanations of the
necessity of those conditions were therefore based on broad,
facility-wide concerns. 441 U.S. at 541-58. In Gordon’s case,
prison officials imposed highly restrictive conditions on him as
an individual and, at the time Cho acted, federal law provided
little guidance to prison officials with respect to making
security assessments of individual detainees. In 2010, it was
at least clear that pretrial detainees may not be placed in
highly restrictive conditions simply because they are pretrial
detainees. See Lock v. Jenkins, 641 F.2d 488, 494 (7th Cir.
1981) (concluding that placing all pretrial detainees in
“conditions more burdensome than those imposed on the general
population of convicted felons,” regardless of their individual
characteristics, “amount[ed] to punishment under Bell”).
However, courts largely deferred to officials’ expertise in
prison management. See, e.g., Block v. Rutherford, 468 U.S. 576(1984) (upholding a ban on contact visits for pretrial detainees
because “responsible, experienced administrators have
determined, in their sound discretion, that such visits will
jeopardize the security of the facility.”). Because the law on
what conditions amount to punishment was not sufficiently
developed when Cho acted in 2010, we cannot say that every
reasonable official in Cho’s position would have known that
42
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
keeping Gordon in solitary confinement, based on the reasons
provided, was a violation of his constitutional due process
rights.
To reiterate, Cho and the Committee based their September
22, 2010 decision to retain Gordon in solitary confinement based
on their assessment that Gordon was a “high-risk” and “high
flight risk” detainee due to his pending charges, prior
convictions, “discharge and failure to comply with 2 residential
drug treatment programs while on probation,” non-compliance with
reporting to his probation officer when leaving Hawai‘i,
extradition back to Hawai‘i while on probation, and the bail
amount for his pending charges.
At the time Cho acted in September of 2010, even though
some federal district courts had previously found that solitary
confinement was punishment when it was based only on pending
charges or vague allegations of dangerousness, those cases are
distinguishable. United States v. Lopez, 327 F. Supp. 2d 138,
142-43 (D.P.R. 2004), found that a detainee’s automatic
placement in administrative detention because he faced the death
penalty excessive in relation to prison officials’ legitimate
purposes. United States v. Gotti, 755 F. Supp. 1159, 1164-65
(E.D.N.Y. 1991), found detainees’ placement in administrative
detention excessive in relation to prison officials’ security
concerns where the only justification proffered was their
43
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
pending charges, with no evidence that the detainees posed a
serious threat to other inmates or the institution. Boudin v.
Thomas, 533 F. Supp. 786, 791-92 (S.D.N.Y. 1982), ruled that
placing a pretrial detainee in administrative detention because
of “[t]he nature of her crime [and] her . . . unsubstantiated
affiliation with a terrorist organization” was excessive in
relation to the prison warden’s legitimate purposes. In
Gordon’s case, additional factors to those cited in these cases
were given as reasons by Cho and the Committee for keeping
Gordon in solitary confinement. In addition, although “the
views of the federal courts of appeals do not bind [a state
supreme court] when it decides a federal constitutional
question[,]” Johnson v. Williams, 568 U.S. 289, 305 (2013),
they can be persuasive. In this regard, the Seventh Circuit
Court of Appeals held in Rapier v. Harris, 172 F.3d 999 (7th
Cir. 1999), a 42 U.S.C. § 1983 case, that even if keeping a
pretrial detainee in administrative segregation constituted
prohibited punishment, defendants enjoyed qualified immunity
because, at the time the defendants acted, the law was not
sufficiently clear to apprise them that maintaining the
defendant in segregation was not sufficiently related to the
legitimate government objective of maintaining good order and
discipline within the facility. 172 F.3d at 1006. In addition,
as late as 2017, the Second Circuit held in Almighty Supreme
44
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Born Allah v. Milling, 876 F.3d 48 (2d Cir. 2017), that “the
general principle articulated in [Bell] does not clearly
establish that a substantive due process violation would result
from [the pretrial inmate’s] placement in Administrative
Segregation based solely on his prior assignment to (and failure
to complete) that [Administrative Segregation] program [during a
previous incarceration].” 876 F.3d at 59. Holding that the
defendants were entitled to qualified immunity, the Second
Circuit noted, “[n]o prior decision of the Supreme Court or of
this Court (or, so far as we are aware, of any other court) has
assessed the constitutionality of that particular practice.”
876 F.3d at 59-60. Likewise, we see no cases that assessed the
constitutionality of the criteria evaluated by Cho and the
Committee in reaching a decision that Gordon should be continued
in solitary confinement.
Gordon cited as supplemental authority four federal cases
that are distinguishable from this case and do not demonstrate,
at the time of Cho and the Committee’s decision to retain Gordon
in pretrial solitary confinement, a violation of a “clearly
established” constitutional right of which every reasonable
official would have known of at the time the official acted.
Proctor v. LeClaire, 846 F.3d 597 (2d Cir. 2017), involved a
convicted defendant, not a pretrial detainee.27 Gordon also
27
We note, however, that the ABA Criminal Justice Standards and federal
(continued. . .)
45
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
cited to Almighty, discussed in the paragraph above, which
actually held that qualified immunity applied.28 Likewise,
Williams v. Secretary Pennsylvania Department of Corrections,
848 F.3d 549, cert. denied 138 S.Ct. 357 (U.S. Oct. 16, 2017)
(Nos. 17-53, 17-5116), prospectively held that inmates on death
row whose death sentences have been vacated have a due process
right to avoid continued placement in solitary confinement
absent meaningful protections discussed therein, but also found
qualified immunity applied as to the prison official defendants
in that case. Finally, the last supplemental authority cited by
Gordon, V.W. by and through Williams v. Conway, 236 F. Supp. 3d
554 (N.D.N.Y. 2017), ruled that summary judgment had improperly
been granted in favor of a school district in a purported class
action brought on behalf of juveniles subjected to solitary
confinement, but had yet to address actual liability or the
possible applicability of qualified immunity, if liability was
found.
Thus, like in Almighty, we see no cases that assessed the
combination of criteria evaluated by Cho and the Committee in
reaching their decision that Gordon may be continued in solitary
(. . . continued)
prison policy factors we discuss in Section IV(C) below for assessing when
solitary confinement may be used also apply to convicted defendants.
28
Gordon also cited to that case when the April 25, 2018 petition for
certiorari was pending before the United States Supreme Court, but the
certiorari petition was dismissed by the Court on September 4, 2018. See
Docket No. 15-8654 in the United States Supreme Court.
46
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
confinement. The circuit court’s conclusion that Cho was
entitled to qualified immunity because she did not knowingly
violate Gordon’s rights was erroneous because it was based on an
improper standard of law. However, because whether a right was
clearly established under federal law at the time a defendant
acted is a “purely legal” question reviewable de novo, and
because we conclude that Gordon’s rights were not sufficiently
clear in 2010 that every reasonable official in Cho’s position
would have known that keeping Gordon in solitary confinement
based on the criteria applied violated his constitutional
rights, Cho is nevertheless entitled to qualified immunity.
This opinion clearly establishes for Hawaiʻi prison
officials, however, that holding a pretrial detainee in solitary
confinement under Gordon’s circumstances violates a pretrial
detainee’s Fourteenth Amendment due process right to be free
from punishment. With respect to the reasons given by Cho and
the Committee29 to maintain Gordon in maximum security and
solitary confinement, “the nature and seriousness of [a
detainee’s] current charges” may bear some relationship to
institutional order and security if the underlying facts or
nature of the charges correspond to the ABA Criminal Justice
Standards and federal prison policy factors for solitary
29
Similar reasons were later given by Chun and Johnson.
47
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
confinement discussed in Section IV(C) below, but because
defendants did not know the factual basis for Gordon's pending
charges or explain how his charges could indicate a threat to
institutional order and security, defendants failed to show the
conditions of Gordon's pretrial custody were reasonably related
to any legitimate government purpose on this basis. “The number
and kind of his prior convictions” and “[h]is extensive criminal
history and numerous periods of incarceration” might have been
reasonably related to a legitimate government purpose to the
extent they included assaultive behavior; however, in Gordon’s
case, he had committed no institutional misconduct during prior
incarcerations. Likewise, “[h]is failure to comply with two
residential drug treatment programs” might have been reasonably
related to a legitimate government purpose if the failure
related to possible disruption of institutional order and
security; in Gordon’s case, however, no such evidence existed.
In addition, there was no explanation as to how Gordon’s
“[l]eaving the state without permission while on probation” and
“extradition to Hawaii” related to possible escape from OCCC, a
secure facility. His being “on probation when charged with his
current offense” likewise did not bear on institutional order or
security. Gordon’s “$1,000,000 bail amount” also did not
directly bear on possible institutional security issues,
48
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
especially in light of the lack of any institutional misconduct
during prior incarcerations.30
Just as “loading a detainee with chains and shackles and
throwing him in a dungeon may ensure his presence at trial and
preserve the security of the institution,” unless there is a
legitimate government purpose, placement of a pretrial detainee
in solitary confinement can support a conclusion that it was
imposed to punish the detainee, in light of “so many alternative
and less harsh methods” that could achieve the same objectives.
Bell, 441 U.S. at 539 n.20. The ABA Standards and federal prison
policies discussed in Section IV(C) below provide guidelines on
when solitary confinement might be reasonably related to a
legitimate government purpose so as not to violate a pretrial
detainee’s due process rights.
B. Gordon’s State Law Negligence Claim
With respect to his negligence claim against Cho,
individually, Gordon’s Application argues Cho was not entitled
to qualified immunity under Towse. In Towse, we clarified our
state law qualified immunity standard for non-judicial
officials:
Our courts have held that a non-judicial governmental
officer does not enjoy an absolute immunity for his
tortious acts. . . . [W]hen an official “in exercising his
30
Cho was not responsible for Gordon’s initial custody evaluation that,
in addition to these factors, also considered his age. See supra, n.5. We
express no opinion at this time whether prison officials can consider age in
evaluating custody classifications.
49
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
authority is motivated by malice, and not by an otherwise
proper purpose, . . . he should not escape liability for
the injuries he causes.”
64 Haw. at 630-31, 647 P.2d at 701-02 (citation omitted).
The circuit court concluded Gordon did not prove by a
preponderance of the evidence that Cho acted with malice;31
accordingly, Gordon did not meet his burden of proving malice by
clear and convincing evidence.32 See Medeiros v. Kondo, 55 Haw.
499, 504, 522 P.2d 1269, 1272 (1974) (placing “the burden of
adducing clear and convincing proof that [the] defendant was
motivated by malice” on the plaintiff). The circuit court’s
findings and conclusions with respect to Cho’s qualified
immunity for Gordon’s state law negligence claim are not clearly
erroneous.
C. Gordon’s State Due Process Claim
The circuit court did not specifically address Gordon’s
state due process claim under Article I, Section 5 of the Hawai‘i
Constitution, which provides that “[n]o person shall be deprived
of life, liberty or property without due process of law . . . .”
Although the State of Hawai‘i has not waived its sovereign
31
It does not appear the State raised any arguments based on the State
Tort Liability Act, under which “[t]he State . . . waives its immunity for
liability for the torts of its employees and shall be liable in the same
manner and to the same extent as a private individual under like
circumstances.” Hawaii Revised Statutes (HRS) § 662-2 (2016). We therefore
do not address whether a private individual could be held liable for
negligence in setting the custody status of a pretrial detainee.
32
All of the circuit court’s findings, “[u]nless otherwise indicated,
. . . have been proven to be probably more true than not true.”
50
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
immunity to suits seeking monetary damages for constitutional
violations, Figueroa v. State, 61 Haw. 369, 383, 604 P.2d 1198,
1206-07 (1979), we address Gordon’s state law due process claim
because of the importance of the constitutional issue at stake
and to provide guidance pursuant to our supervisory powers under
Hawaii Revised Statutes § 602-4 (2016).33
Like the Fourteenth Amendment of the United States
Constitution, Article I, Section 5 of the Hawai‘i State
Constitution guarantees all persons a right to be free from
punishment prior to an adjudication of guilt in accordance with
due process of law. Compare Haw. Const. art. I, § 5 (“No person
shall be deprived of life, liberty or property without due
process of law[.]”) with U.S. Const. amend. XIV, § 1 (providing
that no state shall “deprive any person of life, liberty, or
property, without due process of law[.]”).
We hereby adopt the Bell standard for determining whether
an Article I, Section 5 due process violation has occurred under
the circumstances of this case. Thus, a court may infer that a
condition or set of restrictions amounts to punishment of a
pretrial detainee when: (1) there is “a showing of an expressed
33
Section 602-4 of the Hawaii Revised Statutes provides:
Superintendence of inferior courts. The supreme court
shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and
abuses therein where no other remedy is expressly provided
by law.
51
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
intent to punish on the part of detention facility officials;”
(2) the condition or restriction is not “reasonably related to a
legitimate goal;” or (3) the condition or restriction is
“excessive in relation to the alternative purpose assigned to
it.” 441 U.S. at 538-39. We note that under our constitution,
however, pretrial detainees may be guaranteed greater due
process protection than convicted prisoners. Accord State v.
Bayaoa, 66 Haw. 21, 25 n.2, 656 P.2d 1330, 1333 n.2 (1982)
(agreeing with the dissenting Bell justices that, at least in
the context of Fourth Amendment searches, “the rights of persons
not yet convicted of crimes must be more closely scrutinized
than the rights of prisoners.”) (citing Bell, 441 U.S. at 568(Marshall, J., dissenting); 441 U.S. at 579 (Stevens, J.,
dissenting)).
We also note that model practices acknowledge solitary
confinement as a legitimate administrative and penological tool,
but reserve its use for particularized and serious problems.
For example, the American Bar Association’s (“ABA”) Criminal
Justice Standards on the Treatment of Prisoners (“ABA
Standards”) generally advise using solitary confinement or
“segregated housing” sparingly or not at all, except to manage
specific concerns.34 ABA, ABA Criminal Justice Standards:
34
“Segregated housing” is defined as “housing of a prisoner in conditions
characterized by substantial isolation from other prisoners, whether pursuant
(continued. . .)
52
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Treatment of Prisoners, Standard 23-2.7(a) (3d ed. 2011). Long-
term segregated housing —- segregation that “is expected to
extend or does extend for a period of time exceeding 30 days” —-
may be used to impose discipline for a “very severe disciplinary
infraction, in which safety or security was seriously
threatened,” to curtail “a credible continuing and serious
threat to the security of others or to the prisoner’s own
safety,” or to prevent the spread of “airborne contagion.” Id.,Standards 23-1.0(o), 23-2.7(a)(i-iii). Further, the ABA
Standards advise that prisoners should not be placed in long-
term segregated housing based on a security risk posed by the
prisoner unless:
[L]ess restrictive alternatives are unsuitable in light of
a continuing and serious threat to the security of the
facility, staff, other prisoners, or the public as a result
of the prisoner’s:
(i) history of serious violent behavior in
correctional facilities;
(ii) acts such as escapes or attempted escapes from
secure correctional settings;
(iii) acts or threats of violence likely to
destabilize the institutional environment to such a
degree that the order and security of the facility is
threatened;
(iv) membership in a security threat group
accompanied by a finding based on specific and
reliable information that the prisoner either has
engaged in dangerous or threatening behavior directed
by the group or directs the dangerous or threatening
behavior of others; or
(v) incitement or threats to incite group
disturbances in a correctional facility.
Id., Standard 23-2.7(b) (emphases added).
(. . . continued)
to disciplinary, administrative, or classification action.” ABA Standards,
Standard 23-1.0(r).
53
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Federal prison policy is in accord with the ABA Standards.
The Bureau of Prisons (“BOP”) requires pretrial detainees to be
held in the least restrictive conditions consistent with their
security needs. BOP Program Statement 7331.04 on Pretrial
Inmates, § 6 (January 31, 2003). Pretrial detainees may be held
in a “special housing unit” (“SHU”), which amounts to solitary
confinement, but such confinement must always serve a specific
penological purpose, and an inmate’s status must be reviewed
within three work days of placement in the SHU, again at seven
calendar days, and then every thirty days after that. BOP
Program Statement 5270.11 on Special Housing Units, § 1(a), 7
(Nov. 23, 2016).
The issue of whether current DPS solitary confinement
policies and procedures comports with state due process
standards is not before us.35 In this case, however, for the
reasons explained in Part IV, Section A, subsections 2, 3, and
4, Gordon’s placement in solitary confinement was not reasonably
related, and was excessive in relation to, any legitimate
government purpose. Therefore, Gordon’s due process right under
Article I, Section 5 of the Constitution of the State of Hawaiʻi
35
We must express our serious concern, however, with the DPS policy
referenced in this case that only required the custody status of a maximum
custody inmate, whether pretrial detainee or sentenced prisoner, to be
reassessed once a year. It appears this annual review policy would not pass
constitutional muster; as noted, even federal prisons require thirty day
reviews.
54
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
was also violated.
Because the State has not waived its sovereign immunity for
damages claims against the State for state constitutional
violations, however, there is no damages remedy for the state
constitutional due process violation. Additionally, the only
possible “further and additional relief” for this violation, as
requested by Gordon in his Amended Complaint, would have been
injunctive or declaratory in nature. At the time of trial in
this case, Gordon was already being held in medium custody, thus
injunctive relief would have been unnecessary. To provide
future guidance, however, we note that Gordon’s due process
rights under Article I, Section 5 of the Hawaiʻi Constitution
were violated.36
V. Conclusion
We conclude that Gordon was subjected to unlawful pretrial
punishment when he was detained in solitary confinement for over
nine months. His treatment was a violation of his rights under
36
In Bell, pretrial detainees sought immediate relief from their
conditions of confinement and brought their claim by petition for writ of
habeas corpus, which the court declined to comment upon. 441 U.S. at 526 n.6
(“[W]e leave to another day the question of the propriety of using a writ of
habeas corpus to obtain review of the conditions of confinement[.]”).
In our jurisdiction, the writ of habeas corpus is still available in
the pre-conviction context. See HRS § 660-3 (2016) (“The supreme court . . .
and the circuit courts may issue writs of habeas corpus in cases in which
persons are unlawfully restrained of their liberty[.]”); see also Oili v.
Chang, 57 Haw. 411, 412, 557 P.2d 787, 788 (1976) (noting that habeas
petitions that would require an evidentiary hearing must be filed in the
circuit court). The writ has, however, been abolished in the post-conviction
context. See Hawai‘i Rules of Penal Procedure Rule 40(a) (2006) (creating a
post-conviction proceeding that encompasses and supersedes “all common law
and statutory procedures for the same purpose, including habeas corpus”).
55
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the due process clauses of the Fourteenth Amendment of the
United States Constitution and Article I, Section 5 of the
Hawai‘i State Constitution. We therefore overrule the ICA’s
memorandum opinion to that extent. However, we conclude that
Cho was entitled to qualified immunity under federal and state
qualified immunity principles for her part in Gordon’s
confinement. Accordingly, the ICA’s July 6, 2017 judgment on
appeal, filed pursuant to its May 30, 2017 memorandum opinion,
is affirmed on other grounds.
Eric A. Seitz /s/ Mark E. Recktenwald
(Della A. Belatti,
Bronson Avila, and /s/ Paula A. Nakayama
Sarah R. Devine with
him on the briefs) /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Kendall J. Moser
(Russell A. Suzuki and
Caron M. Inagaki with
him on the briefs)
for respondents
56