no. 13-15096 case: 13-15096, 09/05/2013, id: 8771111 ... · j. the district court ruled correctly...

NO. 13-15096

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM TORRES, ON APPEAL FROM THE UNITEDSTATES DISTRICT COURT FOR

Plaintiff-Appellant, THE DISTRICT OF HAWAII

vs. D.C. No. 1:11-CV-00724 SOM-BMK

THOMAS READ; JOHN DOES 1-10, SUSAN OKI MOLLWAYDISTRICT COURT JUDGE

Defendant-Appellee.

DEFENDANT-APPELLEE THOMAS READ’S ANSWERING BRIEF

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE, and

CERTIFICATE OF SERVICE

DAVIDM.LOUIE 2162Attorney General of Hawaii

CARON M. INAGAKI 3835JOHN F. MOLAY 4994Deputy Attorneys GeneralDepartment of the Attorney

General, State of Hawaii425 Queen StreetHonolulu, Hawaii 96813Telephone: (808) 586-1494Facsimile: (808) 586-1369E-Mail: John.F.Molay @ hawaii.gov

Attorneys for Defendant-AppelleeThomas Read

Case: 13-15096, 09/05/2013, ID: 8771111, DktEntry: 27-1, of 57

TABLE OF CONTENTS

Table of Authorities ii1

INTRODUCTION 1

JURISDICTIONAL STATEMENT 7

STANDARD OF REVIEW 7

STATEMENT OF FACTS 8

ARGUMENT 12

A. Read is Entitled to Absolute Immunity Because He Was MerelyObeying a Facially-Valid Court Order 12

B. In the Alternative, Read is Entitled to Qualified ImmunityBecause the Operative Document to Incarcerate a Prisoner is theJudgment 20

C. The Initial Inquiry in a § 1983 Action is to Determine if aPlaintiff’s Federal Constitutional Rights Were Violated 25

D. Because Torres’ Action is Based on a Violation of State LawThere is No Cognizable Section 1983 Claim 28

E. Defendant, in His Official Capacity, May Not Be Sued PursuantTo42U.S.C. 1983 29

F. Failure to Enforce a Law Does Not Cause Its “Repeal” 30

G. Evidence That a Practice Conflicts With the Law is Irrelevant 33

H. The Issues Raised in This Appeal Were Decided In an EarlierAppeal 35

I. Torres Had No Procedural Due Process Right to a Hearing 39

515712_1.DOC


J. The District Court Ruled Correctly That Plaintiff Was NotEntitled to Additional Time to Conduct Further Discovery 42

CONCLUSION 44

515712_1.DOC ii


TABLE OF AUTHORITIES

A. V. Constantini v. Civil Aeronautics Board,706 F.2d 1025 (9th Cir. 1983) 35

Aderhold v. Edwards,71 F. 2d 297 (5th Cir. 1934) 20

Allen v. Mack,345 Pa. 407 (1942) 33

Aiston v. Read,663 F.3d 1094 (9th Cir. 2011) passim

Alston v. Read,678 F.Supp.2d 1061 (D. Hawaii 2010) 25

Anderson v. Creighton,483 US 635 (1987) 26

Bagley v. Rogerson,5 F.3d 325 (gth Cir. 1993) 28, 29

Baker v. McCollan,443 U.S. 137 (1979) 25, 26

Beckstrand v. Read,2012 WL 4490727 (D. Hawaii September 26, 2012) 22

Briscoe v. LaHue,460 U.S. 325 (1983) 16

Brown v. Wyoming Butane Gas Co.,66 Wyo. 6783 (1949) 33

Burlington Sante Fe R.R. Co. v. Assinibone & Sioux Tribes,323 F.3d 676 (9th Cir. 2003) 7

515712j.DOC iii


Campbell v. Williamson,783 F.Supp. 1161 (C.D. Iii. 1992) 40

Cleveland v. City ofLos Angeles,420 F.3d981 (9thCir. 2005) 31

Coverdell v. Dep ‘t of Social and Health Services. State of Washington,834 F.2d 758 (9th Cir. 1987) 17

Davis v. Oregon,472 Fed. Appx. 846 (9th Cir. 2012) 41

District of Columbia v. John R. Thompson Co., Inc.,346 U.S. 100 (1953) 30

Elder v. Holloway,510U.S.510(1994) 8

Engebretson v. Mahoney,2013 WL 3242512 (June 28, 2013) 12

Erskin v. Hornbach,81 U.S. 613 (1871) 14

Ex Parte Wilson,5 S.Ct. 935 (1885) 20

Federiso v. Holder,605 F.3d 695 (9th Cir. 2010) 31

Francis v. Lyman,216 F.2d 583 (1st Cir. 1954) 15

Friends ofRichard-Gebaur Airport v. F.A.A.,251 F.3d 1178 (8th Cir. 2001) 30

Furness Withy (Chartering), Inc., Panama v. World Energy SystemsAssociates, Inc.,

772 F.2d802 (llthCir. 1985) 12

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Graham v. Connor,490U.S. 386 (1989) 26

Great Plains Coop v. Commodity Futures Trading Corn ‘n.,205 F.3d 353 (8th Cir. 2000) 32

H. Kishi v. The British Steamship “The Willesden”,4 U.S. Dist. Ct. Haw. 407 (1913) 31

Henderson v. Simms,223 F.3d 267 (4th Cir. 2000) 40

Henry v. Farmer City State Bank,808 F.2d 1228 (7th Cir. 1986) 19

Hill v. United States ex rel. Wampler,298 U.s. 460 (1936) 21, 22

Hoffman v. Hayden,268 F.2d 280 (9th Cir. 1959) 15

In re Meldrum,243 Iowa 777 (1952) 33

Kentucky Department of Corrections v. Thompson,490 U.S. 454 (1989) 40

Maljack Prods. V. GoodTimes Home Video Corp.,81 F.3d 881 (9th Cir. 1996) 8, 44

Marincovich v, Tarabochia,53 Wash.App. 633 (1989) 33

Mays v. Sudderth,97 F.3d 107 (5th Cir. 1996) 17

Matthews v. Densmore,109 U.S. 216 (1883) 14

515712_1.DOC V


McDade v. West,223 F.3d 1135 (9th Cir. 2000) 25

McKeliar v. Arizona Department of Corrections,566 P.2d 1337 (Ariz. 1977) 41

Mitchell v. Forsyth,472 U.S. 511, 526 (1985) 5

Monell v. New York City Department of Social Services,436 U.s. 658 (1978) 29

Morales v. H.I.D.T.A.,524 F.Supp.2d 635 (D.Virgin Islands, 2007) 30

Moss v. Hopp,559 F.3d 1155 (10th Cir. 2009) 17, 18, 19

Newell v. Peters,406 S.W.2d 814, 818 (Mo.App. 1966) 34

Patterson v. Von Riesen,999 F.2d 1235 (8th Cir. 1993) 16, 18

Pearson v, Callahan,129 S.Ct. 808 (2009) 23

Pennhurst State School and Hospital v. Halderman,465 U.S. 89 (1984) 28

Scott v. Younger,739 F.2d 1464 (9th Cir. 1984) 35

Shapiro v. City ofBaltimore,230 Md. 199 (Md. 1962) 30

Siegert v. Gilley,500 U.S. 226 (1991) 25

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Smith v. Cox,301 P.2d 649 (Oki. 1956) 34

Stein v. Ryan,662 F.3d 1114 (9th Cir. 2011) 6

United States v. Two Hundred Barrels of Whiskey,95 U.S. 571 [1877] 31

Universal Health Services, Inc. v. Thompson,363 F.3d 1013 (9th Cir. 2004) 8

Unwired Telecom Corp. v. Parish of Calcasieu,903 So. 2d 392 (La. 2005) 31

Waits v. McGowan,516 F.2d 203 (3rd Cir. 1975) 15

Watkins v. Merry,106 F.2d 360, 361 (10th Cir. 1939) 20

West v. Atkins,487 U.S. 42(1988) 26

Will v. Michigan Dept. of State Police,491 U.S. 58 (1989) 30

Wilson v. Aderhold,84 F.2d 806 (5th Cir. 1936) 20

Wilson v. Layne,526 U.S. 603 (1999) 23

Wood v. McEwen,644F.2d797(9thCir. 1981) 35

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RULES

HRS352-12 .28

HRS § 706-600 22

HRS § 706-668.5 passim

HRS § 706-672 22

Fed.R.Civ.P. Rule 56(f) 7

STATUTES

18U.S.C.3584 33

42 U.S.C. § 1983 passim

515712J.DOC viii


DEFENDANT-APPELLEE THOMAS READ’S ANSWERING BRIEF

INTRODUCTION

Prior to June 2008, in Hawaii, multiple terms of imprisonment imposed at

different times were to be served consecutively unless the judgment specifically

stated the terms were to run concurrently:

If multiple terms of imprisonment are imposed on a defendant at thesame time, or if a term of imprisonment is imposed on a defendantwho is already subject to an unexpired term of imprisonment, theterms may run concurrently or consecutively. Multiple terms ofimprisonment imposed at the same time run concurrently unless thecourt orders or the statute mandates that the terms run consecutively.Multiple terms of imprisonment imposed at different times runconsecutively unless the court orders that the terms runconcurrently.

HRS § 706-668.5 (emphasis added).

Prior to January 1, 2005 the Department of Public Safety (Department) had

an unwritten practice of treating all sentences imposed at different times as running

concurrent to each other, unless the judgment stated they were to run

consecutively. On January 1, 2005, a new written policy became effective which

required that the Department’s employees calculate sentences in conformance with

HRS § 706-668.5.

Thomas Read (Read) was the Administrator for the Offender Management

Office, which is tasked, among other things, with calculating the release dates of

515712_1.DOC 1


prisoners. William Torres (Torres) is a former prisoner, who at all times relevant,

was in the custody of the Department.

Because Read applied the law and policy to Torres, Read has been sued for

“overdetaining” him.

The district court granted Read’ s request for qualified immunity as to any

claim based on a violation of federal law. Torres has appealed that decision.

In March of 1991 Torres was sentenced to ten years in prison for burglary.

That sentence specifically stated that it was to run concurrently with any other

sentence he was serving at the time.1 Three month later, in May of 1991, Torres

was sentenced to three five-year terms for sexual abuse and a ten-year term for

burglary in a separate case. Although the judgment stated the sentence was to be

served concurrently as to each count, it did not state that the sentences were to be

served concurrently with any other sentence Torres was serving. On April 23,

2000, Tones was released from prison based on his March 1991 sentences being

calculated as running concurrently.

1 Appellant’s counsel has asserted that “all” of the judges were issuing judgmentsthat did not comply with HRS § 706-668.5. However, as could be seen from areview of Torres’ institutional file, at least one judge was writing judgments thatconformed with HRS § 706-668.5. (Supp. CR/ER 13-2). Thus it is unclear howRead could have ascertained that the remainder of the judgments were specificallywritten to comply with the Department’s unwritten practice rather than Hawaiilaw.

515712j.DOC 2


As noted by Judge Moliway, “Tones did not remain free for very long after

his release in 2000.” In November 2002, he was sentenced to another ten years in

prison for each of three burglary counts, ten years for kidnapping and five years for

unauthorized control of a propelled vehicle, all committed after he was improperly

released early. Although the November 2002 Judgment stated the counts were to

be served concurrently with each other, it did not state the sentence was to be

served concurrently with March 1991 and May 1991 sentences Torres was serving

at the time. Initially, Torres’ release date was calculated to be March 5, 2011. On

March 1, 2011, the Department realized that the March 5, 2011 date was based on

the discontinued practice of treating sentences as running concurrent to each other

and his release date was recalculated. Torres’ properly calculated release date was

January 22, 2018. (The Department treated the time that Tones was free after

being mistakenly released early in 2000 as if he had been in custody, in calculating

this release date.2) Torres was advised of this release date by letter dated March 1,

2011. Torres later obtained an amended judgment stating that his November 2002

sentence was to run concurrently with any other sentence he was serving. He was

released the day the amended judgment was received by the Department.

2 sentence continues to run during period of time inmate is erroneously released.See United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988).Read authored the policy requiring that release dates be calculated in conformance

with Hawaii law and was one of the persons who signed the March 1, 2011 letter.

515712_1.DOC 3


Because the November 2002 Judgment was the operative document and was

unambiguous and valid on its face, Read would not change Torres’ “max out date.”

Notably, the Public Defender, his current attorney, and Torres himself did not

petition for a writ of habeas corpus with the existing judgments and orders, but

sought an amended judgment.

A chart showing the dates of Torres’ judgments and the sentences which

were calculated based on his judgments follows:

Judgment Cr. No. Sentence Incorrectly CorrectlyDate Calculated Calculated

Max Out Max OutDate4 Date

3/11/91 90-0399 10 years incarceration on each n/a 2/22/00count of burglary to be servedconcurrent with each other,and any other sentence thedefendant is serving5

5/17/9 1 86-0994 10 years on Count! and five 2/22/00 10/15/09years on Counts II, III, and IV.“Said sentence is to be servedconcurrently as to eachCount.”

11/27/02 01-1- 10 years incarceration for the 3/5/11 1/22/180548 burglaries, kidnapping, and

attempted burglary and to fiveyears incarceration on theunauthorized control of apropelled vehicle

the sentences as running concurrently.5Notably, this judgment complied with HRS § 706-668.5, as it existed prior to June2008.

515712_1.DOC 4


Torres then brought suit contending Read failed to properly “investigate” his

claim of overdetention and release him from custody. Torres asserts that Read

(and by extension, all of the Department’s employees) may not rely upon the

wording of the written judgment or judgments in the Department’s possession to

determine the length of a prisoner’s sentence, but are required to continue to

misapply the law and release prisoners prior to the date called for in their

judgments. Read is aware of no authority that supports that position, nor has

Torres offered any. Read believes that the operative document to incarcerate a

prisoner is the judgment, and until such time as an amended judgment is issued, the

Department and its employees may not release a prisoner. Read takes the further

position that he adequately investigated Torres’ claim that he should have been on

March 5, 2011, and cannot now be held liable for the alleged overdetention.

Finally, because of the nature of Torres’ claim, Read does not believe Torres was

entitled to a “hearing” as to the application of HRS § 706-668-5.

Because qualified immunity is an immunity from suit, rather than a mere

defense to liability, it is effectively lost if a case is erroneously permitted to go to

trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Therefore, Read filed a

motion for summary judgment asserting he was entitled to qualified inmiunity for

his actions pursuant to federal law.

515712_1.DOC 5


The district court granted his motion holding that the case of Aiston v. Read,

663 F.3d 1094 (9th Cir. 2011) was controlling. Judge Moliway granted Read

qualified immunity on the federal law claims, and remanded the state law claims

back to the First Circuit Court for the State of Hawaii.6

Judge Moliway’s decision was correct because:

• Aiston v. Read, supra, is controlling, as the facts are nearly identical;

• The Ninth Circuit has already held that prison officials may rely upon the

sentencing documents in their possession without fear of civil liability7;

• The operative document to determine the length of an inmate’s sentence is

the judgment;

• Torres’ judgments, when read in light of then-existing Hawaii law, provided

for a release date of January 22, 2108, not March 5,2011;

• The actions of Read did not violate clearly established federal law;

• Read’s actions were objectively reasonable; and

• A prison official may not be held liable for merely following the law.

Based on the above, Read urges this Court to uphold the Order of the

District Court granting him qualified immunity.

6 case had been originally filed in the First Circuit Court for the State ofHawaii and removed by Read.7Stein v. Ryan, 662 F.3d 1114 (9th Cir. 2011)

55712_1.DOC 6


JURISDICTIONAL S TATEMENT

District Court. The district court had jurisdiction over this case pursuant

to 28 U.S.C.A. § 1331 and 1343(1), (3), and (4) as to claims arising out of alleged

violation of Torres’ federal constitutional rights. On November 14, 2012, the

district court granted Read’s Motion for Summary Judgment based on qualified

immunity as to all claims based on violation of federal law, and remanded the state

law claims to the First Circuit Court for the State of Hawaii. ER 161-173.

This Court. This Court has jurisdiction to consider an appeal from a final

judgment. 28 U.S.C.A. § 1291.

Timeliness ofAppeal. An appeal from a district court must be filed with 30

days of the judgment or order appealed from. 28 U.S.C.A. 2 107(a); Fed. R. App.

P. 4(a)(1). The district court entered its Judgment on December 17, 2012. ER 174.

Torres timely appealed that Judgment on January 15, 2013. ER 175-176.

STANDARD OF REVIEW

Tones claims that Judge Mollway erred by not allowing him additional time

to conduct discovery prior to ruling upon Read’s Motion for Summary Judgment

and for granting Read’s Motion for Summary Judgment, ruling that Read was

entitled to qualified immunity as to the federal claims.

The district court’s decision whether to permit additional discovery pursuant

to FRCivP, Rule 56(f) is reviewed for an abuse of discretion. Burlington Sante Fe

515712_1.DOC 7


R.R. Co. v. Assinibone & Sioux Tribes, 323 F.3d 676, 773 (9th Cir. 2003). There is

no abuse of discretion where the movant failed to show how allowing additional

discovery would have precluded summary judgment. Maijack Prods. V.

GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996).

A district court’s decision to grant a summary judgment is reviewed de

novo. Universal Health Services, Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.

2004). A district court’s decision on qualified immunity is also reviewed de novo.

Elder v. Holloway, 510 U.S. 510, 516 (1994).

STATEMENT OF FACTS

Torres was initially incarcerated at Halawa Correctional Facility on March

13, 1991, following his conviction in Cr. No. 90-0399. Supp. CRIER 12-2 at 3;

13-1 at 1 8 He was released on April 23, 2000, where Hawaii Paroling Authority

erroneously advised Halawa Correctional Facility staff that Mr. Torres had “maxed

out” on his sentences. Supp. CRIER 12-2 at 2; 13-1 at 4. He was also released

from custody on April 28, 2011, the same day as the Department received an

Amended Judgment in Cr. No. 01-1-0548. Supp. CRIER 12-2 at 2; 13-1 at 6.

On March 11, 1991 Torres received a sentence of 10 years incarceration on

each count of burglary to be served concurrent with each other, and any other

8Because Torres’ Excerpts of Record are incomplete and do not appear to complywith Circuit Court Rule 30-1, Read has prepared a Supplemental Clerk’sRecord/Excerpts of Record for the Court’s convenience.

515712_1.DOC 8


sentence the defendant is serving, in Cr. No. 90-0399. Supp. CR/ER 12-2 at 2; 13-

2.

On May 17, 1991, he received a sentence of 10 years on Count I and five

years on Counts II, III, and IV, in Cr. No. 86-0994. Supp. CRIER 12-2 at 2; 13-3

at 1. The judgment states: “Said sentence is to be served concurrently as to each

Count.” Supp. CR/ER 12-2 at 2-3; 13-3 at 1. It does not state the sentences are to

be served concurrently with any other sentence he was serving. Supp. CRIER 12-2

at 2-3; 13-3 at 1.

The Offense-Data Sheet indicates the Hawaii Paroling Authority erroneously

calculated Torres “max out” date in Cr. No. 86-0994 to be April 23, 2000. This

was obviously based on calculating the sentence in Cr. No. 86-0994 to run

concurrently with the sentence in Cr. No. 90-0399. Supp. CRIER 12-2 at 2; 13-4.

As explained in more detail below, at this time the Department had a practice of

treating all sentences imposed at different times as running concurrent to each

other, unless the judgment stated they were to run consecutively. Supp. CRIER

12-2 at 5.

After Tones was erroneously released he committed the following crimes:

Two burglaries; an unauthorized control of a propelled vehicle; kidnapping; and

attempted burglary. Supp. CRIER 12-2 at 3; 13-5. He was prosecuted for

515712_1.DOC 9


committing these crimes, and convicted on all counts. Supp. CRIER 12-2 at 3; 13-

5.

Mr. Torres was sentenced to 10 years incarceration for the burglaries,

kidnapping, and attempted burglary and to five years incarceration on the

unauthorized control of a propelled vehicle in Cr. No. 01-1-0548. Supp. CR/ER

12-2 at 3; 13-5.

On October 19, 2009 a calculation was made in which his “max out” date

was set at March 5, 2011. Supp. CRIER 12-2 at 4; 13-6. This calculation was

based on Mr. Tones having completed his sentence in Cr. No. 86-0994. Supp.

CRIER 12-2 at4; 13-6.

On February 24, 2011 Torres’ “max out” date in Cr. No. 86-0994 was

correctly calculated. Supp. CR/ER 12-2 at 4; 13-7. It is based on the sentence in

CR. No. 86-0994 running consecutively to Cr. Nos. 90-2238 and 90-0399.

Although he was erroneously released in 2000, he should have remained

incarcerated on Cr. No. 86-0994 until October 15, 2009. Supp. CR/ER 12-2 at 4;

13-7. This calculation was made as treating the time Mr. Torres was free as the

same as being in the State’s custody. Supp. CR/ER 12-2 at 4; 13-7.

On March 1, 2011 Nettie Simmons reviewed Tones’ file and determined

that his previously-calculated “max out” date of March 5, 2011 was in error. Supp.

CR/ER 12-2 at 4; 13-8. Because Cr. No. 01-1-0548 runs consecutively to Cr. No.

5157J2_1.DOC 10


86-0994, pursuant to HRS § 706-668.5, Torres actual “max out” date was January

22, 2018. Supp. CR/ER 12-2 at 4; 13-8. Nettie Simmons wrote to Mr. Torres on

March 1, 2011, advising him as to his properly calculated “max out” date. Supp.

CR/ER 12-2 at 4; 13-9. The letter is signed by Read, the Offender Management

Administrator, as well as Ms. Simmons. Supp. CRIER 12-2 at 4; 13-9.

On April 28, 2011 the Department of Public Safety received an Amended

Judgment in Cr. No. 01-1-0548 which stated “THIS SENTENCE SHALL RUN

CONCURRENTLY TO ANY OTHER SENTENCES THE DEFENDANT IS

CURRENTLY SERVING.” (capitalization in the original). Supp. CRIER 12-2 at

4-5; 13-10. Torres was released the day the Amended Judgment was received.

Supp. CRIER 12-2 at 5.

Prior to January 1, 2005 the Department of Public Safety had a practice of

treating all sentences imposed at different times as running concurrent to each

other, unless the judgment stated they were to run consecutively. Supp. CRIER

12-2 at 5; 13-12 at 10, 12-13; 13-13 at 6. This practice did not comply with HRS §

706-668.5, as it existed at the time. Supp. CR/ER 12-2 at 5; 13-12 at 10, 12-13;

13-13 at6.

On January 1, 2005, a new written policy became effective which required

that sentences imposed at different times shall be treated as running consecutively

to any other sentence being served by the defendant, unless the judgment stated

515712_1.DOC 11


they were to run concurrently. Supp. CR/ER 12-2 at 5; 13-12 at 10, 13-13; 13-13

at 6. This policy was designed to bring the Department’s practice in line with

Hawaii law. Supp. CR/ER 12-2 at 5; 13-12 at 10, 12-13; 13-13 at 6.

ARGUMENT

A. Read is Entitled to Absolute Immunity Because He Was Merely Obeying aFacially-Valid Court Order

A prevailing party may defend the judgment on any ground which the law

and record permit as long as it does not expand the relief granted by the court.

Furness Withy (Chartering), Inc., Panama v. World Energy Systems Associates,

Inc., 772 F.2d 802, 808 (11th Cir. 1985). Read offers the following as an alternate

ground for upholding Judge Moliway’s decision:

Prior to May 30, 2013 the Ninth Circuit had not extended absolute immunity

to prison officials who “overdetained” a prisoner by complying with a facially-

valid judgment. Engebretson v. Mahoney, 2013 WL 3242512 (June 28, 2013)

changed that.

In Engebretson, the Ninth Circuit was “asked to decide whether prison

officials enjoy absolute immunity from 42 U.S.C. § 1983 for conduct prescribed by

facially valid court orders.” The Ninth Circuit concluded that “they do.”

In 1993 Engrebretson was sentenced to four concurrent 20-year prison

terms. Because he was repeat offender, he was sentenced to an additional 30 years

in prison to run consecutively to the 20-year sentences. However, the trial court

515712_1.DOC 12


suspended the 30-year sentence, despite the fact that Montana law did not allow for

that suspension, and imposed probation. After serving ten years in prison he was

discharged for good behavior and began serving his probationary term. While on

probation Engrebretson’ s sentence was invalidated by the Montana Supreme Court

because the sentencing court lacked the authority to suspend his entire sentence as

a repeat offender and impose probation. On remand, the new sentencing court

sentenced him to the four 20-year concurrent sentences, with credit for time served

and prescribed terms and conditions of probation of any remaining time. The

judge then amended the judgment to state that his sentence had been discharged

and deleted all terms of his probation. The Engrebretsons9then brought an action

pursuant to 42 U.S.C. § 1983. The Engrebretsons’ claim was based on the premise

that the prison warden and the Director of the Montana Department of Corrections

had a “duty” to ascertain whether the former prisoner’s sentence was “a legal

sentence” prior to incarcerating him.

The Ninth Circuit stated: “We now join our sister circuits and hold that

prison officials charged with executing facially valid court orders enjoy absolute

immunity from § 1983 liability for conduct prescribed by those orders.”

Engbretson, 2013 WL 3242512 at 1.

9The Plaintiffs were Mr. and Mrs. Engrebretson.

515712_iDOC 13


This decision enjoys ample support in both United States Supreme Court

decisions as well as the decisions of other Circuit Courts of Appeal, beginning in

the 19th Century. In Erskin v. Hornbach, 81 U.S. 613 (1871) the Supreme Court

held that a “ministerial officer” who acts in obedience to an order issued to him by

a tribunal, which is regular on its face, has “full and entire” protection for his acts,

even if the order was issued in error. (Tax collector enforcing an assessment.)

In a case decided a dozen years later, the Supreme Court stated:

Here, then, we have a writ which is fair on its face, issued from acourt which had jurisdiction both of the parties and of the subject-matter of the suit in which it was issued, and which was issued in theregular course of judicial proceeding by that court, and which theofficer of the court in whose hands it was placed is bound to obey, andyet by the decision of the Michigan court it affords him no protectionwhen he is sued there for executing its mandate. We do not think thisis law. Certainly it is not the law which this court applies to theprocesses and officers of the courts of the United States, and of othercourts of general jurisdiction.

Matthews v. Densmore, 109 U.S. 216, 218 (1883).’° (U.S. Marshall levying

property pursuant to a facially valid court order, being sued in a Michigan state

court. This decision reversed a decision of the Michigan Supreme Court.)

In an early circuit court decision involving a 42 U.S.C. § 1983 claim where

the court granted the jailer absolute immunity, the court pointed out:

10 Notably, quasi-judicial immunity would apply to any claim for damages,including state law claims. Allowing a claim for damages pursuant to state lawtheories of liability would violate the principles underlying judicial immunity.

515712_1.DOC 14


The privilege of a jailor to impose confinement in such a case is, wethink, quite as time honored in the Anglo-American common law as isthe immunity of members of the legislature and judges from civilliability for acts done within the sphere of their judicial activities[citations omittedi.

Francis v. Lyman, 216 F.2d 583, 588-589 (1st Cir. 1954). (Continued detention of

person in state reformatory pursuant to a court order.)

In 1959 the Ninth Circuit stated: “We think the failure of a jailor or keeper

to release a prisoner held on a warrant or commitment cannot be the basis for a

civil rights action.. .His act is required by law.” Hoffman v. Hayden, 268 F.2d 280

(9th Cir. 1959). (Continued detention in hospital for mentally ill pursuant to a

court order.)

In 1975 when discussing the functional category of persons involved in the

detention of others pursuant to a court order, the Third Circuit noted:

[Wihere the defendant is directly involved in the judicial process, hemay receive immunity in his own right for the performance of adiscretionary act or he may be covered by the immunity afforded thejudge because he is performing a ministerial function at the directionof the judge.

Waits v. McGowan, 516 F.2d 203, 206 (3rd Cir. 1975) (Defendants removed

plaintiff from Canada to stand trial in New Jersey without extradition procedure or

wanants pursuant to a facially valid court order.)

515712_iDOC 15


In 1983, the United States Supreme Court stated that common law

immunities in existence at the time of the enactment of 42 U.S.C. § 1983 provide

the basis of immunity in current lawsuits brought pursuant to that statute:

“...the common law [at the time 42 U.S.C. § 1983 was enacted] provided absolute

immunity for all persons-governmental or otherwise-who were integral parts of the

judicial process.” Briscoe v. LaHue, 460 U.S. 325, 335 (1983). The Court went

out to explain that “our cases clearly indicate that [the] immunity analysis rests on

functional categories, not the status of the defendant.” Briscoe, 460 U.S. at 342.

(Plaintiffs had alleged that the defendant police officers had offered perjured

testimony resulting in plaintiffs’ convictions.)

In a 1993 case, the Eighth Circuit Court of Appeals granted absolute

immunity to a jail official who complied with a judgment which was later found to

be invalid: “The failure of a jailor or keeper to release a prisoner held on a warrant

or conmitment cannot be the basis for a civil rights action regardless of allegations

or malice, motive or intent.” [internal quotation marks and citations omitted.]

Patterson v. Von Riesen, 999 F.2d 1235, 1239-1240 (8th Cir. 1993). (Former

prisoner sued wardens, inter alia, for false imprisonment after his conviction was

overturned in habeas proceeding.)

As noted by the Fifth Circuit Court of Appeals in 1996: “When 42 U.S.C. §

1983 was enacted in 1871, the common law provided absolute immunity to

515712_1.DOC 16


government officials in their execution of facially valid judicial orders entered by a

court of competent jurisdiction.” Mays v. Sudderth, 97 F.3d 107, 112 (5th Cir.

1996). (Arrest by sheriff pursuant to facially valid court order.) The Mays Court

also stated that this rule exists because judges are absolutely immune from suit for

judicial actions taken pursuant to their jurisdiction and “to deny similar protection

to government officials executing their orders would render the officials lightning

rods for harassing litigation aimed at judicial orders [internal citations and

quotations omitted].” Mays, 97 F.3d at 113.

A number of later cases have explained why this rule exists. In 1987 the

Ninth Circuit Court of Appeals provided its reason as to why absolute immunity is

to be given to persons following court orders: “The fearless and unhesitating

execution of court orders is essential if the court’s authority and ability to function

are to remain uncompromised.” Coverdell v. Dep ‘t of Social and Health Services.

State of Washington, 834 F.2d 758, 765 (9th Cir. 1987). (Social worker removing

newborn from hospital pursuant to a facially valid order.)

In 2009, the Tenth Circuit echoed the Coverdell Court: “Absolute immunity

for officials assigned to carry out a judge’s orders is necessary to ensure that such

officials can perform their function without the need to secure permanent legal

counsel.” Moss v. Hopp, 559 F.3d 1155, 1163 (10th Cir. 2009). (Search of a home

pursuant to a discovery order in a civil case.)

515712_1.DOC 17


State officials must not be required to act as pseudo-appellate courtsscrutinizing the orders of judges, but subjecting them to liability forexecuting an order because the order did not measure up todiscretionary standards would have just that effect. [citation omitted]Further, to allow plaintiffs to bring suit any time a state agentexecutes a judicial order which does not fulfill every legalrequirement would make the agent a lightning rod for harassinglitigation aimed at judicial orders. [citation omitted] Simple fairnessrequires that state officers not be called upon to answer for thelegality of decisions which they are powerless to control. [citationomitted].

Moss, 559 F.3d at 1165.

The Patterson Court identified three reasons to hold that prison officials are

entitled to absolute immunity for continuing to incarcerate a prisoner pursuant to a

facially valid judgment:

First... [d]isgruntled prisoners have no one else to sue. If thewardens do not have absolute immunity from suits challenging thefact of a prisoner’s confinement they will become a “lightening rodfor harassing litigation aimed at judicial orders. [citation omitted].

Second, such liability is simply unfair.. .Wardens should not berequired to make the Hobson’ s choice between disobeying the courtorder or being haled into court to answer for damages.

Finally, such suits present a serious threat to the integrity of thejudicial process.. .For the criminal justice system to function, however,officials must be able to rely upon facially valid court orders, andcourts must be able to assume their orders will be enforced.

Patterson, 999 F.2d at 1240-1241.

The Moss Court also provided guidance on how to determine when to give

this level of protection: “...for a state official to be entitled to quasi-judicial

immunity, the judge issuing the disputed order must be immune from liability in

515712_IDOC 18


his or her own right, the officials executing the order must act within the scope of

their jurisdiction, and the officials must only act as prescribed by the order in

question.” Moss, 559 F.3d at 1163.

In 1986 the Seventh Circuit pointed out the proper procedure for challenging

a court order or judgment: “The proper procedure for a party who wishes to

contest the legality of a court order enforcing a judgment is to appeal that order and

underlying judgment, not to sue the official responsible for its execution.” Henry

v. Farmer City State Bank, 808 F.2d 1228, 1239 (7th Cir. 1986). (Enforcement of

foreclosure judgment issued by a state court.)

Here, Read is entitled to absolute immunity because:

• It is undisputed Read was following a facially-valid judgment in determining

Tones’ release date;

• The judges who issued the judgments enjoy absolute immunity;

• The determination of the length of a prisoner’s sentence was within the

scope of Read’s jurisdiction as an employee of the Department;

• Read did no more than enforce the judgment as written;

• Read advised Torres to obtain an amended judgment; and

• Tones was released forthwith upon receipt of the amended judgment.

515712_1.DOC 19


Under these circumstances it would be unconscionable to hold Read liable

for damages to Torres, when the judge who prepared the judgment which Read

obeyed is immune from liability.

B. In the Alternative, Read is Entitled to Qualified Immunity Because theOperative Document to Incarcerate a Prisoner is the Judgment

The rule that the sentence issued by the court, as evidenced by the written

judgment, is the operative judgment is a universally-recognized principle: See Ex

Parte Wilson, 5 S.Ct. 935 (1885) (A certified copy of the record of the sentence of

imprisonment is sufficient to authorize the detention of a prisoner); Wilson v.

Aderhold, 84 F.2d 806 (5th Cir. 1936); (The circuit court will look to the sentence

to determine the force and effect of a mittimus); Aderhold v. Edwards, 71 F. 2d

297 (5th Cir. 1934) (An imperfect commitment does not invalidate the sentence.);

and Watkins v. Merry, 106 F.2d 360, 361 (10th Cir. 1939) (“The real authority for

execution of the sentence is the judgment. [footnote omitted] The commitment is

mere evidence of such authority and if the commitment is not in accord with the

judgment, the latter may be resorted to on a habeas corpus for the purpose of

determining whether the detention of a prisoner is lawful.”)

Torres has offered neither argument nor legal authority that overrides the

accepted principle that it is the judgment of the court that is the operative

document to be used to either incarcerate or release a prisoner. As to Tones, he

515712_1.DOC 20


was advised to obtain an amended judgment. He did so, and was released after it

was received by the Department.

In this situation, Read should be allowed to rely on the very concept of a

judgment. As noted by U.S. District Court Judge Susan Oki Moliway last year:

Unless vacated or reversed, a judgment represents the finaldetermination in a case. If prison officials could second-guessjudgments and detain or release individuals as they deemed appropriate,judgments would be meaningless. The prison officials could thentrump the entire judicial system, pronouncing not only trial judges, buteven appellate judges, to have been mistaken and therefore not entitledto have their rulings enforced. The result would be a shadowy,unreviewable system that would hold the power to release prisonersearlier than courts had ordered, or to detain them beyond what courtshad ordered.

While the present case turns on the expiration of a paroleperiod, if DPS has the authority to override a judge with respect to theparole period, DPS presumably claims the right to override a judge withrespect to a custody period. Nothing in any law vests DPS the power tooverride a judge.

The Supreme Court established, in Hill v. United States ex rel.Wampler, 298 U.S. 460, 464 (1936), that the sentence ordered by acourt may be altered only by an amended judgment. In Wampler, theUnited States District Court for the District of Maryland imposed asentence on Wampler, orally ordering a prison term and a fine. Id. at462. On the same day, the court clerk issued a commitment ofimprisonment that included a provision that Wampler remainimprisoned until the fine was paid. Id. Wampler petitioned the court tostrike this provision, arguing that the court clerk had inserted into thecommitment a provision that the judge had not made a part of hissentence. Id.

The prison warden in Wampler contended that there was apractice in the District of Maryland to include this provision in thecommitment, even if not expressly stated by the court. Id. at 465. Thewarden argued that the practice should be given the force of law. Id.The Supreme Court disagreed, noting that the practice was “notpublished;. . . not reduced to writing;. . . [and] lacking in the formal

515712_1.DOC 21


safeguards that protect against mistake and perhaps against oppression.”Id. The Court stated:

The only sentence known to the law is the sentence orjudgment entered upon the records of the court. If theentry is the sentence or judgment entered upon therecords of the court. If the entry is inaccurate, there is aremedy by motion to correct it to the end that it mayspeak the truth. . . Until corrected in a direct proceeding, itsays what it meant to say, and this by an irrebuttablepresumption.

Id. at 464 (internal citations omitted).

Order Granting in Part, Denying in Part Defendants Thomas Read and NettieSimmons’s Motion for Summary Judgment. Beckstrand v. Read, 2012 WL4490727 (D. Hawaii September 26, 2012) at 5-6.

Torres is arguing that because there was an unwritten practice being

followed, that did not conform with the law, prison officials were obligated to

assume that:

(1) Every judgment issued prior to June 2008 they received was issued in

violation of the existing state statute’1;

(2) Every judge’2 that issued a judgment prior to June 2008 did so in

conformance with this illegal practice; and

(3) The prison officials were required to continue to “release individuals as

they deemed appropriate” despite the wording of facially-valid judgments.

According to Torres, this “practice was universally followed...” Opening Brief at5.12 alternative to assuming every judge followed the unwritten practice would beto require employees of the Department to attempt to ascertain or guess at what thejudge’s true intention was, completely undermining the purpose of issuing awritten judgment.

515712_1.DOC 22


As clearly shown by Hill v. United States ex rel. Wampler, 298 U.S. 460

(1936), that is not the law. Additionally, Hawaii law requires that judgments be

written to conform with the law and the Department keep prisoners in custody until

the prisoner’s entire sentences is completed. See HRS § 706-600 and 706-672.

The statute in question is not discretionary, it is ministerial in nature. Once

the Department’s employees realized the statute was not being followed, its

employees were obligated to follow it, and make the necessary corrections to

prisoners’ release dates to ensure they were not released early, in violation of the

law. (HRS § 706-672).

The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known. Pearson v, Callahan, 129 S.Ct. 808, 815 (2009). The right must

have been clearly established at the time of defendants alleged misconduct, id. at

816, so that a reasonable official would have understood that what he was doing

under the circumstances of the case violated that right, Wilson v. Layne, 526 U.s.

603, 615 (1999).

Underlying this case are two concepts which Torres has argued since this

case was filed: (1) Read was not entitled to rely upon the judgments as the

operative documents to incarcerate, and continue to incarcerate Tones (Opening

515712j.DOC 23


Brief at 2 1-22, 27); and (2) Read was required to conduct a “hearing” regarding

Torres’ claim of overdetention (Opening Brief at 24-26). Torres has cited no

authority that supports either of those concepts.

Torres recognizes that Read had the 1986, 1991 and 1997 judgments in his

possession at the time he calculated Torres’ sentences to comply with Hawaii state

law, and at the time he responded to Torres’ complaints of “overdetention.” The

district court recognized that the review of these unambiguous and facially valid

judgments in light of HRS § 706-668.5 is all that is required. Read’s duty was

determine the length of Tones’ sentence in conformance with HRS § 706-668.5

based on the judgments in his possession. Torres offers no authority contrary to

the universally-accepted principle that prisoners are incarcerated and released on

the content of judgments alone or that Read is not entitled to rely upon the

judgments in his possession.

This Court does not need to decide whether or not Read violated a federal

constitutional right belonging to Tones. Because there is no “clearly established

law” to the effect that Read is not entitled to rely on the judgments in his

possession, and to his state’s statute, to determine Torres’ release date, he is

entitled to qualified immunity. As the District Court in Aiston correctly noted:

“[Read and Simmons] were, after all, apparently just trying to ‘follow the law’ in

applying the language of [Hawaii Revised Statutes] [s]ection 705-668.5.” Aiston v.

515712_1.DOC 24


Read, 678 F.Supp.2d 1061, 1073 (D. Hawaii 2010) reversed inAlston v. Read, 663

F.3d 1094 (9th Cir. 2011).

Because Read was just trying to follow the law, and there is no clearly

established law which states he is not entitled to rely upon facially-valid

judgments, this Court should uphold the District Court’s Order granting Read

qualified immunity.

C. The Initial Inquiry in a § 1983 Action is to Determine if a Plaintiff’sFederal Constitutional Rights Were Violated

As has been noted by the United States Supreme Court: “The first inquiry in

any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right

‘secured by the Constitution and laws.” Baker v. McCollan, 443 U.S. 137, 140

(1979). “The purpose of § 1983 is to deter state actors from using the badge of

their authority to deprive individuals of their federally guaranteed rights. McDade

v. West, 223 F.3d 1135, 1139 (9th Cir. 2000).

The Supreme Court has stated that a trial court is not to assume a violation

of plaintiffs constitutional rights. In Siegert v. Gilley, 500 U.S. 226 (1991) the

Court emphasized the importance of this inquiry in connection with the qualified

immunity entitlement of government officials and employees not to stand trial and

bear discovery-related burdens of litigation. The Siegert Court was obviously

concerned that rushing to make an assumption of a violation of constitutional

rights would too often lead to unnecessary discovery and the need to stand trial.

515712_IDOC 25


As set forth in Anderson v. Creighton, 483 US 635 (1987), this Court is

required to determine if the actions of a Defendant violated a specific right

guaranteed by the United States Constitution, as opposed to a high-level abstract

right, such as the right to freedom from improper incarceration.

42 U.S.C. § 1983 is not itself a source of substantive rights, but merely

provides a method for vindicating federal rights conferred elsewhere. Graham v.

Connor, 490 U.S. 386, 393-94 (1989) quoting Baker v. McCollan, 443 U.S. 137,

144 n. 3 (1979). To state a claim under section 1983, plaintiff must allege two

essential elements: (1) the defendant acted under color of state law, and (2) the

conduct of the defendant deprived plaintiff of a federally-protected right. 42

U.S.C. § 1983, West v. Atkins, 487 U.S. 42, 48 (1988).

In the present case it is clear Torres has alleged Read was acting under the

color of state law. For purposes of this appeal, those allegations are taken as being

correct. Read’s actions were performed in the furtherance of his duties as an

employee of the Department of Public Safety, a subdivision of the State of Hawaii.

However, Read does not believe that his actions deprived Torres of a federally

protected right.

In Hawaii, the determination as to whether or not the sentences are to be

considered to run consecutive or concurrent when they are imposed at different

515712_1.DOC 26


times for different offenses is governed by HRS § 706-668.5(1), which at the

pertinent time read as follows (emphasis added):

If multiple terms of imprisonment are imposed on a defendant at thesame time, or if a term of imprisonment is imposed on a defendantwho is already subject to an unexpired term of imprisonment, theterms may run concurrently or consecutively. Multiple terms ofimprisonment imposed at the same time run concurrently unless thecourt orders or the statute mandates that the terms run consecutively.Multiple terms of imprisonment imposed at different times runconsecutively unless the court orders that the terms runconcurrently.

The crucial element is not where or under what conditions Torres was been

deprived of his liberty, but rather whether the custody to which he has been

subjected is attributable to multiple terms of imprisonment imposed at different

times running consecutively because the sentencing court did not order that they

run concurrently. The statute in question is clear. If the later sentence does not

state it is to run consecutively with earlier sentences, they are to run consecutively.

Read was not only entitled to calculate the sentences as running consecutively, he

was required to.

No Hawaii court has ruled that the Read’s application of HRS § 706-668.5

to Torres was in error. Nor has any Hawaii court ruled that the statute is to be

interpreted differently than the interpretation made in this situation by Read. He

believes his interpretation was in conformance with the plain wording of the

statute. This Court would have to rule on an issue of Hawaii law (i.e., that Read

515712_1.DOC 27


misapplied the statute to Torres) as a prerequisite to finding that Torres was

overdetained.

There is no guarantee as to whether or not two sentences issued at different

times for two different offenses are to run concurrent or consecutive to each other

in the United States Constitution itself. See Bagley v. Rogerson, 5 F.3d 325, 329

(8t1l Cir. 1993), discussed below. Under these circumstances, this action presents

an issue of Hawaii state law, not federal civil rights law.’3

D. Because Torres’ Action is Based on a Violation of State Law Thereis No Cognizable Section 1983 Claim

As noted above, the first step in analyzing any § 1983 claim is to identify the

specific constitutional right allegedly infringed. The Supreme Court has stated that

§ 1983 is not concerned with mere violations of state law. See also Bagley v.

Rogerson, 5 F.3d 325, 328-29 (8th Cir.1993) (violation of state law, whether

statutory or decisional, does not state a claim under § 1983). With respect to the

argument that Plaintiff was deprived of a liberty interest without due process of

law, Bagley, supra, is determinative. Bagley brought suit under § 1983 alleging

under state law that prison officials should have credited his state sentence with

time served on a vacated federal sentence. The Eighth Circuit determined that

‘3Torres is also claiming “violations” of HRS § 352-12 or “misapplication” of HRS§ 706-668.5, or both. Opening Brief at 12-13. An action may not be maintainedpursuant to 42 U.S.C. § 1983 for violations of state law. Pennhurst State Schooland Hospital v. Halderman, 465 U.S. 89, 106-107 (1984).

515712.j.DOC 28


plaintiff failed to state a claim under § 1983 for a violation of a liberty interest

protected by the Due Process Clause of the Fourteenth Amendment. At most, the

Eighth Circuit concluded, plaintiff alleged a violation of state statutory or

decisional law which is not cognizable under § 1983. Id. at 329.

Torres claims Read failed to treat his sentence as running concurrent rather

than consecutive after Torres complained he was being overdetained because of

Read’s “misunderstanding” as to the application of HRS § 706-668.5. Opening

Brief at 1. To paraphrase the Bagley Court, whatever the proper interpretation of

HRS § 706-668.5 may be, Read, if he did violate that statute in not treating Torres’

sentences as concurrent, did not thereby ipso facto subject himself to an action

under § 1983. Bagley, supra, at 329.

Based on the above, Read believes he is entitled to qualified immunity

because Torres has failed to prove (or even allege) a violation of a federal civil

right.

E. Defendant, in His Official Capacity, May Not Be Sued Pursuant to42 U.S.C. § 1983

The Supreme Court in Monell v. New York City Department of Social

Services, 436 U.S. 658, 689 (1978) held that the term ‘person” used to describe the

class of defendants who may be sued under 42 U.S.C. § 1983, is not limited to

natural individuals, but encompasses local governmental entities. Subsequently,

the Supreme Court clarified that the term person” does not encompass states and

515712_iDOC 29


state agencies. In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), the

Court held that neither a state or a state official acting in his official capacity may

be deemed a person” subject to suit under 42 U.S.C. § 1983. Therefore,

Defendant Thomas Read, in his official capacity, is not amenable to suit pursuant

to 42 U.S.C. § 1983, and that part of the judgment must be upheld.

F. Failure to Enforce a Law Does Not Cause Its “Repeal”

Torres implies that HRS § 706-668.5 fell into “disuse” and that rendered it

unenforceable. Opening Brief at 7, 12-13. That doctrine has been discredited by

the United States Supreme Court. See District of Columbia v. John R. Thompson

Co., Inc., 346 U.S. 100, 113-114 (1953) where the Supreme Court held: “The

failure of executive branch to enforce a law does not result in its modification or

repeal. [citations omitted] The repeal of laws is as much a legislative function as

their enactment.”

No custom, however long and generally it has been followed, can nullify the

plain meaning and purpose of a statute. Shapiro v. City ofBaltimore, 230 Md. 199,

186 A.2d 605 (Md. 1962). A government official or employee may not

unilaterally negate or modify a legislative enactment. Morales v. H.I.D. T.A., 524

F.Supp.2d 635 (D.Virgin Islands, 2007). A statute is a command of the sovereign,

and an agency implementing a statute may not ignore, or provide its own substitute

for, a standard articulated in the statute. Friends ofRichard-Gebaur Airport v.

515712_1.DOC 30


F.A.A., 251 F.3d 1178 (8th Cir. 2001). As noted by a Hawaii District Court almost

100 years ago: “...the legislative will. . .may not be set aside by a rule or regulation

of an executive department of government. [citing] United States v. Two Hundred

Barrels of Whiskey, 95 U.S. 571 [1877]...” H. Kishi v. The British Steamship “The

Willesden”, 4 U.S. Dist. Ct. Haw. 407, 409 (1913). Legislation is the superior

source of law which custom cannot abrogate. Unwired Telecom Corp. v. Parish of

Calcasieu, 903 So. 2d 392 (La. 2005).

Where the statute’s language is plain, the sole function of the court is to

enforce it according to its terms because the court must presume that a legislature

says in a statute what it means and means in a statute what it says there. Cleveland

v. City of Los Angeles, 420 F.3d 981 (9th Cir. 2005). A statute’s words and phrases

are to be construed according to their common and approved usage, and where the

words of a statute are clear and free from ambiguity, the letter of the statute may

not be disregarded. Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010).

To paraphrase the Ninth Circuit, Read was simply correcting Torres’

sentence to comply with an unambiguous state law. Alston, 633 F.3d at 1099.

Read could not be required to ignore the law and release Torres early, in violation

of State law, nor could he ignore the wording of a facially-valid judgment. Tones

has not provided any authority which holds to the contrary.

515712_1.DOC 31


Torres notes the legislature believed there was “misunderstanding and

misinterpretation” of the statute which was clarified by amending HRS § 706-

668.5. Opening Brief at 13-14. Torres opined that the legislature believed it was

the Department that was “misinterpreting” the law. That makes little sense

because what Torres is actually arguing is that Read and the other Department

employees were required to ignore the law as written.

Torres assertion is apparently based on persons providing testimony at the

state legislature stating there was “ambiguity” in a statute. Torres implies that

because the legislature heard testimony from persons who believed the statute was

ambiguous, and amended the statute to conform with the illegal practice that

existed prior to 2005, this Court must adopt that position. Interpretation of a

statute is an exercise of the judicial power that the constitution assigns to the

courts. Great Plains Coop v. Commodity Futures Trading Corn ‘ii., 205 F.3d 353

(8th Cir. 2000). Plaintiff’s counsel has provided no authority that refutes that

universally-accepted position. This Court does not have to accept that this statute

was ambiguous. In fact, the Ninth Circuit has already found that HRS §706-668.5

was not ambiguous:

Alston argued only that Read and Simmons should not have appliedthe relevant state statute and failed to present any documentaryevidence that Read and Simmons were misinterpreting his sentences.Indeed, Read and Simmons were trying to correct the computation ofhis sentence to make sure it conformed to unambiguous state law.

515712_1.DOC 32


Alston v. Read, 663 F.3d at 1099 (emphasis in original).

Notably, HRS § 706-668.5 as it existed prior to 2008 was almost identical to

18 U.S.C. § 3584, which, as far as Read is aware, has never been found to be

ambiguous by any appellate court.

G. Evidence That a Practice conflicts With the Law is Irrelevant

Allowing the proffered “evidence”14which Torres submits to support his

claim that the Hawaii State judges purposely signed judgments that violated the

law, would run counter to unassailable authority which holds that a right cannot

arise from a custom that runs contrary to the law. See Marincovich v, Tarabochia,

53 Wash.App. 633, 635 (1989) (“...it is elementary that no right can arise from a

custom that violates the law.”); In re Meidrum, 243 Iowa 777, 781 (1952) (“It is

fundamental that custom may not legalize what the legislature has declared to be

illegal.”); Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 83 (1949) (“It is

generally held.. .that a custom which conflicts with a statutory provision will not be

enforced. Where there is such conflict, the statute must control [citations internal

quotation marks omitted].”); Allen v. Mack, 345 Pa. 407, 412 (1942) (“It is settled

14Toffes has offered the declaration of former Deputy Public Defenders as “proof’that the judgments issued prior to January 2005 were purposely issued in violationHRS § 706-668.5. Obviously, there is a complete lack of foundation and theproffered evidence as to what the judge intended is mere speculation, making itpatently inadmissible.

515712_1.DOC 33


that a statute cannot be nullified and made inapplicable in a case by proof of a

custom which conflicts with it.”)

See also Smith v. Cox, 301 P.2d 649, 651 (Okl. 1956) (Discussing evidence

of custom of location of jaywalking by members of the public, in violation of law,

not admissible to show justification for non-compliance with statute: “...it is

settled law in this jurisdiction, as in the majority of other states, that a custom or

usage repugnant to the express provisions of a statute is void, and whenever there

is a conflict between a custom or usage, and a statutory regulation the statutory

regulation must control [citations omitted].”)

The rationale for this rule is easy to understand:

From the alleged custom as stated by plaintiff, it is no doubt intendedthat the Court shall necessarily draw the corollary that vehicles in afuneral procession have a customary privilege of ignoring trafficsignals. Can such a privilege exist in the face of legislative conmiandthat a vehicle shall not proceed through a red light? Obviouslypositive legislation overrides any inconsistent custom. Otherwisethose to whom the law-making power is entrusted could find theirfunctions emasculated.

Newell v. Peters, 406 S.W.2d 814, 818 (Mo.App. 1966) (alleged custom of cars in

a funeral procession proceeding through red light did not relieve driver of

responsibility to obey traffic signals).

Therefore, even if Torres’ counsel could produce some real evidence (as

opposed to unsupported assertions based on speculation) that all (or even some)

judges intentionally issued judgments in violation of HRS § 706-668.5, that

515712_iDOC 34


evidence would not be admissible for the purpose of proving that a prisoner’s

sentence was other than the one set forth on the written judgment that accompanied

the prisoner when he was turned over to the Department’s custody.

Read requests this Court to disregard Torres’ proffered evidence that the

written judgment does not reflect the intent of the judge who signed it. Torres has

made no attempt to comply with the Federal Rules of Evidence, because it is

purely speculation, and the evidence being offered is irrelevant.15

H. The Issues Raised in This Appeal Were Decided In an Earlier Appeal

An appeal asking the Court of Appeals to review issues already decided by

that court is a frivolous appeal. Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.

1984) (when issues are raised and disposed of in prior proceedings, reassertion of

those issues may give rise to a finding of frivolousness sufficient to support

sanctions); A. V. Constantini v. Civil Aeronautics Board, 706 F.2d 1025, 1026 (9th

Cir. 1983) (Ninth Circuit had previously affirmed dismissal of several of plaintiff’s

complaints under “remarkably similar circumstances of generalized allegations and

repetitive charges”); Wood v. McEwen, 644 F.2d 797, 800 (9t Cir. 1981) (filing of

this case and 36 other cases, which repeatedly raised the same claims). Torres is

obviously raising the same arguments previously made to this Court in opposition

15 Watanabe, who signed the judgment in Criminal No. 0 1-1-0548, is nowdeceased.

515712_1.DOC 35


to Thomas Read and Nettie Simmons’ earlier appeals of the denial of qualified

immunity.

In the Opening Brief in Aiston, supra., Read stated that the District Court

had incorrectly ruled that Read was not entitled to rely on the judgment upon

which Aiston was originally incarcerated, but were required to obtain and review

other documents to ascertain the intention of the sentencing judge; that Aiston was

in prison for 145 days more than what was intended by the sentencing judge; that

the decision to apply HRS § 706-668.5 was a violation of Alston’s Federal civil

rights; and that under some circumstances Read was required to perform a further

investigation to prove or disprove Aiston’ s assertions of overdetention. Appx. at

56.16

Read then argued that he was entitled to qualified immunity because:

• The operative document to incarcerate a prisoner is the judgment. Appx. at

17-19;

• Read was entitled to apply HRS § 706-668.5 as it existed at the time of

Alston’s sentencing. Appx. at 30-41; and

• A prison official is entitled to rely upon the contents of a prisoner’s

institutional file in calculating his or her release date. Appx. at 30-41.

16 Court make take judicial notice of the contents of its own files. FRE, Rule202.

515712_IDOC 36


Alston’s Answering Brief was authored by Torres’ current counsel. Supp.

CR/ER 13-12 at 1. There, Mr. Schweigert argued that “[tihis case involves the

total change in how sentences would be computed by the Department of Public

Safety.. .who is in charge of setting the max out date when a prisoner may be

released from Hawaii incarceration.” Supp. CRIER 13-12 at 6. He further argued

that application of HRS § 706-668.5 was, in itself, a violation of Mr. Aiston’s

Federal constitutional rights because the application of the statute varied from the

Department’s long-standing practice. Supp. CRIER 13-12 at 7-9.

In the Memorandum in Opposition to Read’s Motion for Summary

Judgment in the Torres case, Mr. Schweigert spends a considerable time discussing

why applying HRS § 706-668.5 as written violated Torres’ civil rights. Supp.

CR/ER 48 at 9-15. This is the same issue that was raised in, and ruled upon, in

Aiston, supra.

After reviewing the facts presented, the Aiston Court noted:

Viewing the facts in Aiston’s favor, Read and Simmons had noticeonly that possibly hundreds of prisoners had sentencesrecalculated under DPS’s change in policy contrary to theunexpressed intent of sentencing judges unaware of the policychange. Aiston’s institutional file contained a copy of the November1997 judgment, which was silent as to whether the sentence was torun concurrent or consecutive with previous sentences. Alston’srecalculated sentence, based on the information in the judgment,conformed to Hawaii state law.

663 F.3d at 1099 (emphases added)

515712_1.DOC 37


The Aiston Court went on to state:

Aiston argued only that Read and Simmons should not have appliedthe relevant state statute and failed to present any documentaryevidence that Read and Simmons were misinterpreting his sentences.Indeed, Read and Simmons were trying to correct the computation ofhis sentence to make sure it conformed to unambiguous state law.

663 F.3d at 1099 (emphasis in original)

Finally, the Alston Court concluded that:

Read and Simmons were entitled to rely on the state statute andthe original judgment received from the court in their sentencingcalculations and were not required to go in search of additionalcourthouse records that might affect Alston’s sentence beyond whatwas initially received from the court for inclusion in DPSs institutionalfile.

663 F.3d at 1099-1100 (emphasis added)

Based on this analysis, the Aiston Court ruled that Read was entitled to

qualified immunity. Judge Mollway, and Read’s counsel, believe Aiston is

dispositive of Torres’ claim. Torres’ counsel, on the other hand, believes that

Aiston stands only for the proposition that a prison official is not required to search

court records.’7 Opening Brief at 17-19.

Obviously, in order for the Aiston Court to rule that Read was entitled to

qualified immunity, it had to rule: (1) There is no requirement that prison officials

17 Given this concession, it is unclear why Torres suggests that Read may be heldliable for not reviewing the contents of documents contained in Torres’ files at thecourthouse. Opening Brief at 18, n. 9. Torres’ counsel appears unwilling toabandon this argument despite the clear teachings of this Court in Aiston.

515712j.DOC 38


review courthouse files, and (2) That with the information that was in Read’s

possession (i.e., the judgments) the calculation of Aiston’s sentence did not violate

Aiston’s Federal civil rights. Both of these rulings are encompassed in Aiston:

Read and Simmons were entitled to rely on the state statute and theoriginal judgment received from the court in their sentencingcalculations and were not required to go in search of additionalcourthouse records that might affect Aiston’s sentence beyond whatwas initially received from the court for inclusion in DPS’sinstitutional file.

663 F.3d at 1099-1100 (emphasis added).

The interpretation urged by Torres’ counsel does not make sense. After all,

if recalculating Alston’s sentence pursuant to HRS § 706-668.5 violated his

Federal civil rights, Read would not have been entitled to qualified immunity. By

necessity, the Aiston panel ruled that the recalculation of Aiston’s sentence in

conformance with HRS § 706-668.5 did not violate his Federal civil rights.

I. Torres Had No Procedural Due Process Right to a Hearing

Torres is also alleging that his Fourteenth Amendment procedural due

process “rights” were violated because he was not given a “hearing” after the

Department corrected its erroneous earlier calculation of his “max out” date.

When examining procedural due process claims, courts must take two steps:

“the first asks whether there exists a liberty or property interest which has been

interfered with by the State; the second examines whether the procedures attendant

515712j.DOC 39


upon that deprivation were constitutionally sufficient.” Kentucky Department of

Corrections v. Thompson, 490 U.S. 454, 460(1989).

To date, Torres’ counsel has stated that the “protected liberty interest” is the

interest in “being free from unlawful incarceration.” This alone is not enough, as it

is alleged at too abstract a level. Torres must show that he had a protected liberty

interest in having sentence calculated in violation of Hawaii law. Cases that have

considered similar issues have held that no such protected liberty interest exists.

In Henderson v. Simms, 223 F.3d 267 (4th Cir. 2000) the Fourth Circuit held

that prisoners who were arrested after it was determined they were released early,

due to an error in the method of calculating their release dates, did not have a

protected liberty interest. This was because the erroneously released prisoner does

not have a “legitimate claim of entitlement” to freedom. Henderson, 223 F.3d at

274. “With no liberty interest to protect, there is no violation of due process and

no need for the pre-detention hearings.” Henderson, 223 F.3d at 275.

See also Campbell v. Williamson, 783 F.Supp. 1161 (C.D. Ill. 1992) where a

state inmate brought civil rights action against various law enforcement and

correctional officials, alleging due process violations in connection with his return

to prison following his mistaken release. The District Court held that the inmate

who was mistakenly released from prison did not have cognizable liberty interest

in remaining free.

515712_1.DOC 40


In McKellar v. Arizona Department of Corrections, 566 P.2d 1337 (Ariz.

1977) a prisoner pled guilty to a sale of heroin, for which the penalty was a

mandatory minimum term of five years’ imprisonment. Three years later he was

granted parole pursuant to an incorrect computation of date on which he would be

eligible for parole, and for two and one-half months he conducted himself as a

model parolee. When the authorities realized their error, however, the prisoner was

taken back into custody. A petition for writ of habeas corpus was denied and the

prisoner appealed. The Arizona Supreme Court held that: (1) mistake of the state in

releasing the prisoner for two and one-half months, after which time he was again

imprisoned, was not “cruel or unusual punishment,” and (2) the prisoner was not

entitled to a due process hearing prior to reincarceration.

If appellant were granted a hearing before the revocation, pursuant toMorrissey v. Brewer, supra, what would the issue be? Appellant hascommitted no wrong, so the state could allege none. The state wouldhave to assert the fact that appellant has not yet served the mandatoryfive years he owes, and to that assertion appellant has no defense. Inessence, granting appellant “procedural” due process in this instancewould be to grant him nothing.

McKellar, 556 P.2d at 1339.

See also Davis v. Oregon, 472 Fed. Appx. 846 (9th Cir. 2012) (no

Fourteenth Amendment violation for failing to provide for a hearing regarding the

calculation of a sentence which only involved “an application of state law to

undisputed facts...”)

515712_IDOC 41


The same situation exists here. Torres does not have a protected liberty

interest in having his “max out” date calculated in violation of Hawaii law.

Additionally, there were no disputed facts. The prisoner was merely complaining

that his sentence was being calculated in accordance with the law, based on a

facially-valid written judgment. Since Torres had no cognizable protected liberty

interest, Read was not required to provide Torres with a “hearing” prior to

calculating (or recalculating) his release date.

Additionally, even if Torres had presented evidence that there were

documents in his files at the courthouse which contradicted the judgment, Read

would not be entitled to simply ignore the judgment. Torres would still have had

to obtain an amended judgment to gain his freedom.

J. The District Court Ruled Correctly That Plaintiff Was Not Entitled toAdditional Time to Conduct Further Discovery

Torres complains he should have been given additional time to conduct

further discovery prior to having the Motion for Summary Judgment being heard.

His complaint has no merit.

According to the Declaration of Torres’ counsel, he was seeking “the

number of recalculations done by OMO [Offender Management Office] under

HRS § 706-668.5 and also what the number of those inmates who got amended

judgments versus those who did not get amended judgments.” Supp. CR/ER 55 at

3. Torres believed this was important because if there was a large number of

515712_1.DOC 42


amended judgments that followed recalculations, then Read would have had notice

of “bad acts” which would go towards “negating his qualified immunity as an

unreasonable and unjust act.” Supp. CRIER 55 at 2.

Read has taken the same position since the start of the numerous

overdetention cases filed by Torres’ counsel: The number of times prisoners

obtained amended judgments following the calculation of their sentences based on

the proper application of HRS § 706-668.5 is irrelevant because the only issue to

be determined is whether or not the application of HRS § 706-668.5 to Torres

caused him to be “overdetained.”18 At the present time, no court has ruled that

properly applying Hawaii law to the prisoners is a “bad act.” Read has resisted

reviewing hundreds of files to advise Torres’ counsel how many times Read

followed the law.

The Declaration of Torres’ counsel suffers from a major defect: It fails to

explain how this discovery would have any effect on the District Court’s decision

on Read’s Motion for Summary Judgment. Even if there had been hundreds of

Notably, this action is identical to the Aiston v. Read case filed in the DistrictCourt, which has again been stayed pending the outcome of this appeal, as well asan appeal currently pending in the Hawaii Intermediate Court of Appeals (Siineonav. Dydasco, ICA No. CAAP 12-0000706). Aiston was initially stayed pending theoutcome of the appeal reported in Aiston v. Read, 663 F.3d 1094 (9th Cir. 2011).The Aiston case was pled as a class action, and was filed in 2007. Torres’ counsel,who is also the counsel in Aiston, has refused to move to certify a class in Aiston.However, he wishes to treat the action as if it was a class action, rather than acollection of individual claimants.

515712_1.DOC 43


prisoners who obtained amended judgments after their sentences were calculated in

conformance with HRS § 706-668.5, that does not mean that Read should have

stopped applying the law, or that the sentencing judge didn’t really mean what he

wrote. The District Court ruled that Read had the right to rely upon the written

judgment. No amount of proposed discovery would have altered that conclusion,

because the District Court would also have found that Read had the right to rely on

the written judgments in every other case as well.

There is no abuse of discretion in refusing to allow time for additional

discovery where the requesting party has failed to show how allowing the

additional discovery would have precluded summary judgment. Maijack

Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir.

1996).

CONCLUSION

Judge Moliway’s decision should be upheld because:

• Aiston v. Read, supra, is controlling, as the facts are nearly identical;

• The Ninth Circuit has already held that prison officials may rely upon the

sentencing documents in their possession without fear of civil liability;

• The operative document to determine the length of an inmate’s sentence is

the judgment;

515712_IDOC 44


• Torres’ judgments, when read in light of then-existing Hawaii law, provided

for a release date of January 22, 2108, not March 5, 2011;

• The actions of Read did not violate clearly established federal law;

• Read’s actions were objectively reasonable; and

• A prison official may not be held liable for merely following the law.

DATED: Honolulu, Hawaii, September 5, 2013.

STATE OF HAWAII

DAVID M. LOUIEAttorney GeneralState of Hawaii

Is/John F. MolayJOHN F. MOLAYDeputy Attorneys GeneralAttorney for Defendant-AppelleeThomas Read

515712_1.DOC 45


STATEMENT OF RELATED CASES

Pursuant to Circuit Court Rule 28-2.6(c) Defendant-Appellee Read advises

the Court that the case of Aiston v. Read, Ninth Circuit Appeal No. 10-15332 is a

related case in that it raises the same or a closely related issue.


STATE OF HAWAII


Is/John F. MolayJOHN F. MOLAYDeputy Attorneys GeneralAttorney for Defendant-AppelleeThomas Read

515712_1.DOC 46


CERTIFICATE OF COMPLIANCE

This Brief complies with the type-volume limitation of Fed. R.App.R.

32(a)(7)(B) because this Brief contains 10,958 words, excluding the parts of the

Brief exempted by FRAP, Rule 32(a)(7)(B)(iii).


STATE OF HAWAII


/s/John F. MolayJOHN F. MOLAYDeputy Attorneys GeneralAttorney for Defendant-AppelleeThomas Read

515712_1.DOC 47


CERTIFICATE OF SERVICE OF DEFENDANT-APPELLEE THOMASREAD’S ANSWERING BRIEF

I hereby certify that on September 5, 2013, I electronically filed the

foregoing document with the Clerk of Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system:

JACK SCHWEIGERT, ESQ.550 Halekauwila Street, Rm 309Honolulu, Hawaii 96813Attorneys for Plaintiff-Appellant


STATE OF HAWAII


Is! John F. MolayJOHN F. MOLAYDeputy Attorneys GeneralAttorney for Defendant-AppelleeThomas Read

515712_1.DOC 48


no. 13-15096 case: 13-15096, 09/05/2013, id: 8771111 ... · j. the district court ruled correctly...

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