NO STATES DISTRICT COURT FOR DISTRICT COURT JUDGE CERTIFICATE OF SERVICE

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1 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 1 of 57 Attorneys for Defendant-Appellee Thomas Read CARON M. INAGAKI 3835 JOHN F. MOLAY 4994 General, State of Hawaii Telephone: (808) Facsimile: (808) hawaii.gov Deputy Attorneys General Department of the Attorney Honolulu, Hawaii Queen Street Attorney General of Hawaii DAVIDM.LOUIE 2162 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE, and STATEMENT OF RELATED CASES DEFENDANT-APPELLEE THOMAS READ S ANSWERING BRIEF Defendant-Appellee. DISTRICT COURT JUDGE THOMAS READ; JOHN DOES 1-10, SUSAN OKI MOLLWAY vs. D.C. No. 1:11-CV SOM-BMK STATES DISTRICT COURT FOR WILLIAM TORRES, ON APPEAL FROM THE UNITED Plaintiff-Appellant, THE DISTRICT OF HAWAII NO

2 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 2 of 57 TABLE OF CONTENTS Table of Authorities 1 ii 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 Merely Obeying a Facially-Valid Court Order 12 B. In the Alternative, Read is Entitled to Qualified Immunity Because the Operative Document to Incarcerate a Prisoner is the Judgment 20 C. The Initial Inquiry in a 1983 Action is to Determine if a Plaintiff s Federal Constitutional Rights Were Violated 25 D. Because Torres Action is Based on a Violation of State Law There is No Cognizable Section 1983 Claim 28 E. Defendant, in His Official Capacity, May Not Be Sued Pursuant To42U.S.C. 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 Earlier Appeal 35 I. Torres Had No Procedural Due Process Right to a Hearing _1.DOC

3 CONCLUSION 44 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 3 of 57 Entitled to Additional Time to Conduct Further Discovery 42 J. The District Court Ruled Correctly That Plaintiff Was Not _1.DOC ii

4 706 F.2d 1025 (9th Cir. 1983) 35 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 4 of 57 A. V. Constantini v. Civil Aeronautics Board, 71 F. 2d 297 (5th Cir. 1934) Pa. 407 (1942) F.3d 1094 (9th Cir. 2011) passim 5 F.3d 325 (gth Cir. 1993) 28, Wyo (1949) F.3d 676 (9th Cir. 2003) j.DOC iii Burlington Sante Fe R.R. Co. v. Assinibone & Sioux Tribes, Brown v. Wyoming Butane Gas Co., 460 U.S. 325 (1983) 16 Briscoe v. LaHue, 2012 WL (D. Hawaii September 26, 2012) 22 Beckstrand v. Read, 443 U.S. 137 (1979) 25, 26 Baker v. McCollan, Bagley v. Rogerson, 483 US 635 (1987) 26 Anderson v. Creighton, 678 F.Supp.2d 1061 (D. Hawaii 2010) 25 Alston v. Read, Aiston v. Read, Allen v. Mack, Aderhold v. Edwards, TABLE OF AUTHORITIES

5 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 5 of 57 Campbell v. Williamson, 783 F.Supp (C.D. Iii. 1992) 40 Cleveland v. City of Los 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 (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 of Richard-Gebaur Airport v. F.A.A., 251 F.3d 1178 (8th Cir. 2001) 30 Furness Withy (Chartering), Inc., Panama v. World Energy Systems Associates, Inc., 772 F.2d802 (llthcir. 1985) _1.DOC iv

6 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 6 of 57 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) _1.DOC V

7 566 P.2d 1337 (Ariz. 1977) 41 McKe liar v. Arizona Department of Corrections, Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 7 of U.S. 226 (1991) 25 Siegert v. Gilley, 230 Md. 199 (Md. 1962) 30 Shapiro v. City of Baltimore, 739 F.2d 1464 (9th Cir. 1984) 35 Scott v. Younger, 465 U.S. 89 (1984) 28 Pennhurst State School and Hospital v. Halderman, Pearson v, Callahan, 999 F.2d 1235 (8th Cir. 1993) 16, 18 Patterson v. Von Riesen, Newell v. Peters, 406 S.W.2d 814, 818 (Mo.App. 1966) 34 Moss v. Hopp, 559 F.3d 1155 (10th Cir. 2009) 17, 18, F.Supp.2d 635 (D.Virgin Islands, 2007) 30 Morales v. H.I.D.T.A., 436 U.s. 658 (1978) 29 Monell v. New York City Department of Social Services, 472 U.S. 511, 526 (1985) 5 Mitchell v. Forsyth, 223 F.3d 1135 (9th Cir. 2000) S.Ct. 808 (2009) j.DOC vi McDade v. West,

8 Stein v. Ryan, 662 F.3d 1114 (9th Cir. 2011) 6 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 8 of F.2d797(9thCir. 1981) U.S. 603 (1999) U.S. 42(1988) 26 Watkins v. Merry, 516 F.2d 203 (3rd Cir. 1975) 15 Waits v. McGowan, Unwired Telecom Corp. v. Parish of Calcasieu, Universal Health Services, Inc. v. Thompson, United States v. Two Hundred Barrels of Whiskey, 301 P.2d 649 (Oki. 1956) U.S. 571 [1877] F.3d 1013 (9th Cir. 2004) So. 2d 392 (La. 2005) F.2d 360, 361 (10th Cir. 1939) 20 West v. Atkins, 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, Wood v. McEwen, j.DOC Vu Smith v. Cox,

9 HRS HRS Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 9 of J.DOC viii 42 U.S.C passim 18U.S.C STATUTES Fed.R.Civ.P. Rule 56(f) 7 HRS HRS passim RULES

10 INTRODUCTION Prior to June 2008, in Hawaii, multiple terms of imprisonment imposed at Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 10 of 57 an unwritten practice of treating all sentences imposed at different times as running _1.DOC 1 Office, which is tasked, among other things, with calculating the release dates of Thomas Read (Read) was the Administrator for the Offender Management HRS required that the Department s employees calculate sentences in conformance with consecutively. On January 1, 2005, a new written policy became effective which concurrent to each other, unless the judgment stated they were to run Prior to January 1, 2005 the Department of Public Safety (Department) had HRS (emphasis added). Multiple terms of imprisonment imposed at different times run concurrently. court orders or the statute mandates that the terms run consecutively. imprisonment imposed at the same time run concurrently unless the who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of same time, or if a term of imprisonment is imposed on a defendant If multiple terms of imprisonment are imposed on a defendant at the consecutively unless the court orders that the terms run stated the terms were to run concurrently: different times were to be served consecutively unless the judgment specifically DEFENDANT-APPELLEE THOMAS READ S ANSWERING BRIEF

11 Because Read applied the law and policy to Torres, Read has been sued for was in the custody of the Department. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 11 of 57 1 Appellant s counsel has asserted that all of the judges were issuing judgments j.DOC 2 law. that did not comply with HRS However, as could be seen from a review of Torres institutional file, at least one judge was writing judgments that Read could have ascertained that the remainder of the judgments were specifically conformed with HRS (Supp. CR/ER 13-2). Thus it is unclear how written to comply with the Department s unwritten practice rather than Hawaii calculated as running concurrently. 2000, Tones was released from prison based on his March 1991 sentences being served concurrently with any other sentence Torres was serving. On April 23, served concurrently as to each count, it did not state that the sentences were to be burglary in a separate case. Although the judgment stated the sentence was to be was sentenced to three five-year terms for sexual abuse and a ten-year term for sentence he was serving at the time. 1 Three month later, in May of 1991, Torres That sentence specifically stated that it was to run concurrently with any other In March of 1991 Torres was sentenced to ten years in prison for burglary. claim based on a violation of federal law. Torres has appealed that decision. The district court granted Read s request for qualified immunity as to any overdetaining him. prisoners. William Torres (Torres) is a former prisoner, who at all times relevant,

12 prison for each of three burglary counts, ten years for kidnapping and five years for his release in In November 2002, he was sentenced to another ten years in Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 12 of 57 at the time. Initially, Torres release date was calculated to be March 5, On 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) _1.DOC 3 with Hawaii law and was one of the persons who signed the March 1, 2011 letter. Read authored the policy requiring that release dates be calculated in conformance released the day the amended judgment was received by the Department. sentence was to run concurrently with any other sentence he was serving. He was Torres later obtained an amended judgment stating that his November 2002 this release date. 2) Torres was advised of this release date by letter dated March 1, being mistakenly released early in 2000 as if he had been in custody, in calculating January 22, (The Department treated the time that Tones was free after and his release date was recalculated. Torres properly calculated release date was the discontinued practice of treating sentences as running concurrent to each other March 1, 2011, the Department realized that the March 5, 2011 date was based on served concurrently with March 1991 and May 1991 sentences Torres was serving be served concurrently with each other, it did not state the sentence was to be released early. Although the November 2002 Judgment stated the counts were to unauthorized control of a propelled vehicle, all committed after he was improperly As noted by Judge Moliway, Tones did not remain free for very long after

13 Notably, the Public Defender, his current attorney, and Torres himself did not unambiguous and valid on its face, Read would not change Torres max out date. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 13 of _1.DOC Notably, this judgment complied with HRS , as it existed prior to June the sentences as running concurrently. and any other sentence the 3/11/ years incarceration on each n/a 2/22/00 Date 4 Date Max Out Max Out Judgment Cr. No. Sentence Incorrectly Correctly Date Calculated Calculated count of burglary to be served concurrent with each other, defendant is serving concurrently as to each years on Counts II, III, and IV. Said sentence is to be served Count. attempted burglary and to five unauthorized control of a propelled vehicle years incarceration on the 5/17/ years on Count! and five 2/22/00 10/15/09 11/27/ years incarceration for the 3/5/11 1/22/ burglaries, kidnapping, and 5 were calculated based on his judgments follows: A chart showing the dates of Torres judgments and the sentences which sought an amended judgment. petition for a writ of habeas corpus with the existing judgments and orders, but Because the November 2002 Judgment was the operative document and was

14 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 14 of 57 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 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 _1.DOC 5

15 qualified immunity on the federal law claims, and remanded the state law claims 663 F.3d 1094 (9th Cir. 2011) was controlling. Judge Moliway granted Read Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 15 of 57 6 case had been originally filed in the First Circuit Court for the State of 55712_1.DOC 6 7Stein v. Ryan, 662 F.3d 1114 (9th Cir. 2011) Hawaii and removed by Read. District Court granting him qualified immunity. Based on the above, Read urges this Court to uphold the Order of the A prison official may not be held liable for merely following the law. Read s actions were objectively reasonable; and The actions of Read did not violate clearly established federal law; for a release date of January 22, 2108, not March 5,2011; Torres judgments, when read in light of then-existing Hawaii law, provided the judgment; The operative document to determine the length of an inmate s sentence is sentencing documents in their possession without fear of civil liability 7; The Ninth Circuit has already held that prison officials may rely upon the Aiston v. Read, supra, is controlling, as the facts are nearly identical; Judge Moliway s decision was correct because: back to the First Circuit Court for the State of Hawaii. 6 The district court granted his motion holding that the case of Aiston v. Read,

16 to 28 U.S.C.A and 1343(1), (3), and (4) as to claims arising out of alleged District Court. The district court had jurisdiction over this case pursuant Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 16 of _1.DOC 7 to FRCivP, Rule 56(f) is reviewed for an abuse of discretion. Burlington Sante Fe The district court s decision whether to permit additional discovery pursuant entitled to qualified immunity as to the federal claims. and for granting Read s Motion for Summary Judgment, ruling that Read was to conduct discovery prior to ruling upon Read s Motion for Summary Judgment Tones claims that Judge Mollway erred by not allowing him additional time STANDARD OF REVIEW Torres timely appealed that Judgment on January 15, ER P. 4(a)(1). The district court entered its Judgment on December 17, ER 174. days of the judgment or order appealed from. 28 U.S.C.A (a); Fed. R. App. Timeliness ofappeal. An appeal from a district court must be filed with 30 judgment. 28 U.S.C.A This Court. This Court has jurisdiction to consider an appeal from a final law claims to the First Circuit Court for the State of Hawaii. ER immunity as to all claims based on violation of federal law, and remanded the state district court granted Read s Motion for Summary Judgment based on qualified violation of Torres federal constitutional rights. On November 14, 2012, the JURISDICTIONAL S TATEMENT

17 discovery would have precluded summary judgment. Maijack Prods. V. no abuse of discretion where the movant failed to show how allowing additional Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 17 of _1.DOC 8 Record/Excerpts of Record for the Court s convenience. with Circuit Court Rule 30-1, Read has prepared a Supplemental Clerk s 8Because Torres Excerpts of Record are incomplete and do not appear to comply each count of burglary to be served concurrent with each other, and any other On March 11, 1991 Torres received a sentence of 10 years incarceration on Amended Judgment in Cr. No Supp. CRIER 12-2 at 2; 13-1 at 6. from custody on April 28, 2011, the same day as the Department received an out on his sentences. Supp. CRIER 12-2 at 2; 13-1 at 4. He was also released erroneously advised Halawa Correctional Facility staff that Mr. Torres had maxed 13-1 at 1 8 He was released on April 23, 2000, where Hawaii Paroling Authority 13, 1991, following his conviction in Cr. No Supp. CRIER 12-2 at 3; Torres was initially incarcerated at Halawa Correctional Facility on March STATEMENT OF FACTS Elder v. Holloway, 510 U.S. 510, 516 (1994). 2004). A district court s decision on qualified immunity is also reviewed de novo. novo. Universal Health Services, Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. A district court s decision to grant a summary judgment is reviewed de GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996). R.R. Co. v. Assinibone & Sioux Tribes, 323 F.3d 676, 773 (9th Cir. 2003). There is

18 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 18 of 57 sentence the defendant is serving, in Cr. No Supp. CR/ER 12-2 at 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 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 to be April 23, This was obviously based on calculating the sentence in Cr. No to run concurrently with the sentence in Cr. No Supp. CRIER 12-2 at 2; 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; He was prosecuted for _1.DOC 9

19 5. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 19 of 57 Mr. Torres was sentenced to 10 years incarceration for the burglaries, 12-2 at 3; This calculation was made as treating the time Mr. Torres was free as the 5157J2_1.DOC 10 CR/ER 12-2 at 4; Because Cr. No runs consecutively to Cr. No. that his previously-calculated max out date of March 5, 2011 was in error. Supp. On March 1, 2011 Nettie Simmons reviewed Tones file and determined same as being in the State s custody. Supp. CR/ER 12-2 at 4; incarcerated on Cr. No until October 15, Supp. CR/ER 12-2 at 4; Although he was erroneously released in 2000, he should have remained CR. No running consecutively to Cr. Nos and correctly calculated. Supp. CR/ER 12-2 at 4; It is based on the sentence in On February 24, 2011 Torres max out date in Cr. No was CRIER 12-2 at4; based on Mr. Tones having completed his sentence in Cr. No Supp. was set at March 5, Supp. CRIER 12-2 at 4; This calculation was On October 19, 2009 a calculation was made in which his max out date unauthorized control of a propelled vehicle in Cr. No Supp. CR/ER kidnapping, and attempted burglary and to five years incarceration on the committing these crimes, and convicted on all counts. Supp. CRIER 12-2 at 3; 13-

20 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 20 of , pursuant to HRS , Torres actual max out date was January 22, Supp. CR/ER 12-2 at 4; 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; The letter is signed by Read, the Offender Management Administrator, as well as Ms. Simmons. Supp. CRIER 12-2 at 4; On April 28, 2011 the Department of Public Safety received an Amended Judgment in Cr. No 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; 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; at 10, 12-13; at 6. This practice did not comply with HRS , as it existed at the time. Supp. CR/ER 12-2 at 5; at 10, 12-13; 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 _1.DOC 11

21 Hawaii law. Supp. CR/ER 12-2 at 5; at 10, 12-13; at 6. at 6. This policy was designed to bring the Department s practice in line with Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 21 of _1.DOC 12 in prison to run consecutively to the 20-year sentences. However, the trial court terms. Because he was repeat offender, he was sentenced to an additional 30 years In 1993 Engrebretson was sentenced to four concurrent 20-year prison facially valid court orders. The Ninth Circuit concluded that they do. officials enjoy absolute immunity from 42 U.S.C for conduct prescribed by In Engebretson, the Ninth Circuit was asked to decide whether prison changed that. to prison officials who overdetained a prisoner by complying with a faciallyvalid judgment. Engebretson v. Mahoney, 2013 WL (June 28, 2013) Prior to May 30, 2013 the Ninth Circuit had not extended absolute immunity ground for upholding Judge Moliway s decision: Inc., 772 F.2d 802, 808 (11th Cir. 1985). Read offers the following as an alternate Furness Withy (Chartering), Inc., Panama v. World Energy Systems Associates, and record permit as long as it does not expand the relief granted by the court. A prevailing party may defend the judgment on any ground which the law Facially-Valid Court Order A. Read is Entitled to Absolute Immunity Because He Was Merely Obeying a ARGUMENT they were to run concurrently. Supp. CR/ER 12-2 at 5; at 10, 13-13; 13-13

22 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 22 of 57 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 Engrebretsons 9 then brought an action pursuant to 42 U.S.C 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 at 1. 9The Plaintiffs were Mr. and Mrs. Engrebretson _iDOC 13

23 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 23 of 57 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 a court which had jurisdiction both of the parties and of the subjectmatter of the suit in which it was issued, and which was issued in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate. We do not think this is law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States, and of other courts 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 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 law theories of liability would violate the principles underlying judicial immunity _1.DOC 14

24 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 24 of 57 The privilege of a jailor to impose confinement in such a case is, we think, quite as time honored in the Anglo-American common law as is the immunity of members of the legislature and judges from civil liability for acts done within the sphere of their judicial activities [citations omittedi. Francis v. Lyman, 216 F.2d 583, (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, he may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of 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.) _iDOC 15

25 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 25 of 57 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 provide the basis of immunity in current lawsuits brought pursuant to that statute:...the common law [at the time 42 U.S.C 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, (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 was enacted in 1871, the common law provided absolute immunity to _1.DOC 16

26 court of competent jurisdiction. Mays v. Sudderth, 97 F.3d 107, 112 (5th Cir. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 26 of ). (Arrest by sheriff pursuant to facially valid court order.) The Mays Court to government officials executing their orders would render the officials lightning A number of later cases have explained why this rule exists. In 1987 the In 2009, the Tenth Circuit echoed the Coverdell Court: Absolute immunity _1.DOC 17 pursuant to a discovery order in a civil case.) counsel. Moss v. Hopp, 559 F.3d 1155, 1163 (10th Cir. 2009). (Search of a home officials can perform their function without the need to secure permanent legal for officials assigned to carry out a judge s orders is necessary to ensure that such newborn from hospital pursuant to a facially valid order.) State of Washington, 834 F.2d 758, 765 (9th Cir. 1987). (Social worker removing are to remain uncompromised. Coverdell v. Dep t of Social and Health Services. execution of court orders is essential if the court s authority and ability to function to be given to persons following court orders: The fearless and unhesitating Ninth Circuit Court of Appeals provided its reason as to why absolute immunity is quotations omitted]. Mays, 97 F.3d at 113. rods for harassing litigation aimed at judicial orders [internal citations and judicial actions taken pursuant to their jurisdiction and to deny similar protection also stated that this rule exists because judges are absolutely immune from suit for government officials in their execution of facially valid judicial orders entered by a

27 executing an order because the order did not measure up to discretionary standards would have just that effect. [citation omitted] Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 27 of _IDOC 18 immunity, the judge issuing the disputed order must be immune from liability in this level of protection:...for a state official to be entitled to quasi-judicial The Moss Court also provided guidance on how to determine when to give Patterson, 999 F.2d at wardens do not have absolute immunity from suits challenging the First... [d]isgruntled prisoners have no one else to sue. If the for harassing litigation aimed at judicial orders. [citation omitted]. Second, such liability is simply unfair...wardens should not be Finally, such suits present a serious threat to the integrity of the required to make the Hobson s choice between disobeying the court order or being haled into court to answer for damages. officials must be able to rely upon facially valid court orders, and courts must be able to assume their orders will be enforced. judicial process...for the criminal justice system to function, however, fact of a prisoner s confinement they will become a lightening rod facially valid judgment: entitled to absolute immunity for continuing to incarcerate a prisoner pursuant to a The Patterson Court identified three reasons to hold that prison officials are Moss, 559 F.3d at requirement would make the agent a lightning rod for harassing litigation aimed at judicial orders. [citation omitted] Simple fairness Further, to allow plaintiffs to bring suit any time a state agent executes a judicial order which does not fulfill every legal omitted]. requires that state officers not be called upon to answer for the legality of decisions which they are powerless to control. [citation scrutinizing the orders of judges, but subjecting them to liability for State officials must not be required to act as pseudo-appellate courts

28 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 28 of 57 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 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 _1.DOC 19

29 for damages to Torres, when the judge who prepared the judgment which Read obeyed is immune from liability. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 29 of 57 document to be used to either incarcerate or release a prisoner. As to Tones, he accepted principle that it is the judgment of the court that is the operative Torres has offered neither argument nor legal authority that overrides the determining whether the detention of a prisoner is lawful. ) judgment, the latter may be resorted to on a habeas corpus for the purpose of mere evidence of such authority and if the commitment is not in accord with the execution of the sentence is the judgment. [footnote omitted] The commitment is and Watkins v. Merry, 106 F.2d 360, 361 (10th Cir. 1939) ( The real authority for 297 (5th Cir. 1934) (An imperfect commitment does not invalidate the sentence.); to determine the force and effect of a mittimus); Aderhold v. Edwards, 71 F. 2d Aderhold, 84 F.2d 806 (5th Cir. 1936); (The circuit court will look to the sentence imprisonment is sufficient to authorize the detention of a prisoner); Wilson v. Parte Wilson, 5 S.Ct. 935 (1885) (A certified copy of the record of the sentence of judgment, is the operative judgment is a universally-recognized principle: See Ex The rule that the sentence issued by the court, as evidenced by the written Operative Document to Incarcerate a Prisoner is the Judgment B. In the Alternative, Read is Entitled to Qualified Immunity Because the _1.DOC 20 Under these circumstances it would be unconscionable to hold Read liable

30 was received by the Department. In this situation, Read should be allowed to rely on the very concept of a Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 30 of 57 The Supreme Court established, in Hill v. United States ex rel. to have their rulings enforced. The result would be a shadowy, judgments and detain or release individuals as they deemed appropriate, judgments would be meaningless. The prison officials could then Unless vacated or reversed, a judgment represents the final trump the entire judicial system, pronouncing not only trial judges, but even appellate judges, to have been mistaken and therefore not entitled period, if DPS has the authority to override a judge with respect to the strike this provision, arguing that the court clerk had inserted into the sentence. Id. Wampler, 298 U.S. 460, 464 (1936), that the sentence ordered by a 462. On the same day, the court clerk issued a commitment of The prison warden in Wampler contended that there was a determination in a case. If prison officials could second-guess unreviewable system that would hold the power to release prisoners earlier than courts had ordered, or to detain them beyond what courts had ordered. While the present case turns on the expiration of a parole parole period, DPS presumably claims the right to override a judge with respect to a custody period. Nothing in any law vests DPS the power to court may be altered only by an amended judgment. In Wampler, the sentence on Wampler, orally ordering a prison term and a fine. Id. at override a judge. United States District Court for the District of Maryland imposed a imprisonment that included a provision that Wampler remain imprisoned until the fine was paid. Id. Wampler petitioned the court to commitment a provision that the judge had not made a part of his practice in the District of Maryland to include this provision in the commitment, even if not expressly stated by the court. Id. at 465. The published;... not The Supreme Court disagreed, noting that the practice was not warden argued that the practice should be given the force of law. Id. reduced to writing;... [and] lacking in the formal _1.DOC 21 judgment. As noted by U.S. District Court Judge Susan Oki Moliway last year: was advised to obtain an amended judgment. He did so, and was released after it

31 judgment entered upon the records of the court. If the The only sentence known to the law is the sentence or Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 31 of 57 entry is the sentence or judgment entered upon the records of the court. If the entry is inaccurate, there is a speak the truth.. remedy by motion to correct it to the end that it may Id. The Court stated: Id. at 464 (internal citations omitted). presumption. says what it meant to say, and this by an irrebuttable. Until (1) Every judgment issued prior to June 2008 they received was issued in (2) Every judge (3) The prison officials were required to continue to release individuals as alternative to assuming every judge followed the unwritten practice would be to require employees of the Department to attempt to ascertain or guess at what the _1.DOC 22 According to Torres, this practice was universally followed... Opening Brief at written judgment. judge s true intention was, completely undermining the purpose of issuing a they deemed appropriate despite the wording of facially-valid judgments. conformance with this illegal practice; and 2 that issued a judgment prior to June 2008 did so in violation of the existing state statute 1; assume that: followed, that did not conform with the law, prison officials were obligated to Torres is arguing that because there was an unwritten practice being Order Granting in Part, Denying in Part Defendants Thomas Read and Nettie Simmons s Motion for Summary Judgment. Beckstrand v. Read, 2012 WL (D. Hawaii September 26, 2012) at 5-6. corrected in a direct proceeding, it safeguards that protect against mistake and perhaps against oppression.

32 written to conform with the law and the Department keep prisoners in custody until (1936), that is not the law. Additionally, Hawaii law requires that judgments be Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 32 of j.DOC 23 operative documents to incarcerate, and continue to incarcerate Tones (Opening case was filed: (1) Read was not entitled to rely upon the judgments as the Underlying this case are two concepts which Torres has argued since this 603, 615 (1999). under the circumstances of the case violated that right, Wilson v. Layne, 526 U.s. 816, so that a reasonable official would have understood that what he was doing have been clearly established at the time of defendants alleged misconduct, id. at have known. Pearson v, Callahan, 129 S.Ct. 808, 815 (2009). The right must established statutory or constitutional rights of which a reasonable person would liability for civil damages insofar as their conduct does not violate clearly The doctrine of qualified immunity protects government officials from law. (HRS ). prisoners release dates to ensure they were not released early, in violation of the employees were obligated to follow it, and make the necessary corrections to the Department s employees realized the statute was not being followed, its The statute in question is not discretionary, it is ministerial in nature. Once the prisoner s entire sentences is completed. See HRS and As clearly shown by Hill v. United States ex rel. Wampler, 298 U.S. 460

33 authority that supports either of those concepts. Torres claim of overdetention (Opening Brief at 24-26). Torres has cited no Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 33 of _1.DOC 24 applying the language of [Hawaii Revised Statutes] [s]ection Aiston v. [Read and Simmons] were, after all, apparently just trying to follow the law in entitled to qualified immunity. As the District Court in Aiston correctly noted: possession, and to his state s statute, to determine Torres release date, he is law to the effect that Read is not entitled to rely on the judgments in his constitutional right belonging to Tones. Because there is no clearly established This Court does not need to decide whether or not Read violated a federal judgments in his possession. the content of judgments alone or that Read is not entitled to rely upon the the universally-accepted principle that prisoners are incarcerated and released on based on the judgments in his possession. Torres offers no authority contrary to determine the length of Tones sentence in conformance with HRS judgments in light of HRS is all that is required. Read s duty was district court recognized that the review of these unambiguous and facially valid law, and at the time he responded to Torres complaints of overdetention. The possession at the time he calculated Torres sentences to comply with Hawaii state Torres recognizes that Read had the 1986, 1991 and 1997 judgments in his Brief at , 27); and (2) Read was required to conduct a hearing regarding

34 Because Read was just trying to follow the law, and there is no clearly F.3d 1094 (9th Cir. 2011). Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 34 of 57 C. The Initial Inquiry in a 1983 Action is to Determine if a Plaintiff s As has been noted by the United States Supreme Court: The first inquiry in v. West, 223 F.3d 1135, 1139 (9th Cir. 2000) _IDOC 25 rights would too often lead to unnecessary discovery and the need to stand trial. concerned that rushing to make an assumption of a violation of constitutional bear discovery-related burdens of litigation. The Siegert Court was obviously immunity entitlement of government officials and employees not to stand trial and Court emphasized the importance of this inquiry in connection with the qualified of plaintiffs constitutional rights. In Siegert v. Gilley, 500 U.S. 226 (1991) the The Supreme Court has stated that a trial court is not to assume a violation their authority to deprive individuals of their federally guaranteed rights. McDade (1979). The purpose of 1983 is to deter state actors from using the badge of secured by the Constitution and laws. Baker v. McCollan, 443 U.S. 137, 140 any 1983 suit, therefore, is whether the plaintiff has been deprived of a right Federal Constitutional Rights Were Violated qualified immunity. judgments, this Court should uphold the District Court s Order granting Read established law which states he is not entitled to rely upon facially-valid Read, 678 F.Supp.2d 1061, 1073 (D. Hawaii 2010) reversed inalston v. Read, 663

35 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 35 of 57 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 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, (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 _1.DOC 26

36 If multiple terms of imprisonment are imposed on a defendant at the pertinent time read as follows (emphasis added): Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 36 of 57 to Torres was in error. Nor has any Hawaii court ruled that the statute is to be _1.DOC 27 statute. This Court would have to rule on an issue of Hawaii law (i.e., that Read believes his interpretation was in conformance with the plain wording of the interpreted differently than the interpretation made in this situation by Read. He No Hawaii court has ruled that the Read s application of HRS was required to. Read was not only entitled to calculate the sentences as running consecutively, he state it is to run consecutively with earlier sentences, they are to run consecutively. run concurrently. The statute in question is clear. If the later sentence does not times running consecutively because the sentencing court did not order that they subjected is attributable to multiple terms of imprisonment imposed at different deprived of his liberty, but rather whether the custody to which he has been The crucial element is not where or under what conditions Torres was been concurrently. consecutively unless the court orders that the terms run Multiple terms of imprisonment imposed at different times run court orders or the statute mandates that the terms run consecutively. imprisonment imposed at the same time run concurrently unless the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of times for different offenses is governed by HRS (1), which at the

37 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 37 of 57 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 There is 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, (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 or misapplication of HRS , or both. Opening Brief at An action may not be maintained pursuant to 42 U.S.C for violations of state law. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, (1984) j.DOC 28

38 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 38 of 57 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 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 Opening Brief at 1. To paraphrase the Bagley Court, whatever the proper interpretation of HRS 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 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 to 42 U.S.C 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 _iDOC 29

39 be deemed a person subject to suit under 42 U.S.C Therefore, Court held that neither a state or a state official acting in his official capacity may Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 39 of _1.DOC 30 for, a standard articulated in the statute. Friends of Richard-Gebaur Airport v. and an agency implementing a statute may not ignore, or provide its own substitute F.Supp.2d 635 (D.Virgin Islands, 2007). A statute is a command of the sovereign, unilaterally negate or modify a legislative enactment. Morales v. H.I.D. T.A., A.2d 605 (Md. 1962). A government official or employee may not plain meaning and purpose of a statute. Shapiro v. City of Baltimore, 230 Md. 199, No custom, however long and generally it has been followed, can nullify the their enactment. repeal. [citations omitted] The repeal of laws is as much a legislative function as failure of executive branch to enforce a law does not result in its modification or Co., Inc., 346 U.S. 100, (1953) where the Supreme Court held: The the United States Supreme Court. See District of Columbia v. John R. Thompson unenforceable. Opening Brief at 7, That doctrine has been discredited by Torres implies that HRS fell into disuse and that rendered it F. Failure to Enforce a Law Does Not Cause Its Repeal to 42 U.S.C. 1983, and that part of the judgment must be upheld. Defendant Thomas Read, in his official capacity, is not amenable to suit pursuant state agencies. In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), the

40 of an executive department of government. [citing] United States v. Two Hundred Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 40 of years ago:...the legislative will..may not be set aside by a rule or regulation has not provided any authority which holds to the contrary. of State law, nor could he ignore the wording of a facially-valid judgment. Tones Read could not be required to ignore the law and release Torres early, in violation sentence to comply with an unambiguous state law. Alston, 633 F.3d at To paraphrase the Ninth Circuit, Read was simply correcting Torres not be disregarded. Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010). words of a statute are clear and free from ambiguity, the letter of the statute may are to be construed according to their common and approved usage, and where the says in a statute what it means and means in a statute what it says there. Cleveland enforce it according to its terms because the court must presume that a legislature Where the statute s language is plain, the sole function of the court is to Calcasieu, 903 So. 2d 392 (La. 2005). source of law which custom cannot abrogate. Unwired Telecom Corp. v. Parish of Willesden, 4 U.S. Dist. Ct. Haw. 407, 409 (1913). Legislation is the superior Barrels of Whiskey, 95 U.S. 571 [1877]... H. Kishi v. The British Steamship The F.A.A., 251 F.3d 1178 (8th Cir. 2001). As noted by a Hawaii District Court almost v. City of Los Angeles, 420 F.3d 981 (9th Cir. 2005). A statute s words and phrases _1.DOC 31

41 Opening Brief at Torres opined that the legislature believed it was misinterpretation of the statute which was clarified by amending HRS 706- Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 41 of _1.DOC 32 his sentence to make sure it conformed to unambiguous state law. Alston argued only that Read and Simmons should not have applied evidence that Read and Simmons were misinterpreting his sentences. the relevant state statute and failed to present any documentary Indeed, Read and Simmons were trying to correct the computation of was not ambiguous: was ambiguous. In fact, the Ninth Circuit has already found that HRS universally-accepted position. This Court does not have to accept that this statute (8th Cir. 2000). Plaintiff s counsel has provided no authority that refutes that courts. Great Plains Coop v. Commodity Futures Trading Corn ii., 205 F.3d 353 statute is an exercise of the judicial power that the constitution assigns to the existed prior to 2005, this Court must adopt that position. Interpretation of a ambiguous, and amended the statute to conform with the illegal practice that because the legislature heard testimony from persons who believed the statute was state legislature stating there was ambiguity in a statute. Torres implies that Torres assertion is apparently based on persons providing testimony at the employees were required to ignore the law as written. because what Torres is actually arguing is that Read and the other Department the Department that was misinterpreting the law. That makes little sense Torres notes the legislature believed there was misunderstanding and

42 18 U.S.C. 3584, which, as far as Read is aware, has never been found to be Notably, HRS as it existed prior to 2008 was almost identical to Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 42 of _1.DOC 33 proffered evidence as to what the judge intended is mere speculation, making it patently inadmissible. HRS Obviously, there is a complete lack of foundation and the that the judgments issued prior to January 2005 were purposely issued in violation Toffes has offered the declaration of former Deputy Public Defenders as proof 14 quotation marks omitted]. ); Allen v. Mack, 345 Pa. 407, 412 (1942) ( It is settled enforced. Where there is such conflict, the statute must control [citations internal generally held...that a custom which conflicts with a statutory provision will not be illegal. ); Brown v. Wyoming Butane Gas Co., 66 Wyo. 67, 83 (1949) ( It is fundamental that custom may not legalize what the legislature has declared to be custom that violates the law. ); In re Meidrum, 243 Iowa 777, 781 (1952) ( It is 53 Wash.App. 633, 635 (1989) (...it is elementary that no right can arise from a arise from a custom that runs contrary to the law. See Marincovich v, Tarabochia, law, would run counter to unassailable authority which holds that a right cannot claim that the Hawaii State judges purposely signed judgments that violated the Allowing the proffered evidence 14 which Torres submits to support his G. Evidence That a Practice conflicts With the Law is Irrelevant ambiguous by any appellate court. Alston v. Read, 663 F.3d at 1099 (emphasis in original).

43 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 43 of 57 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 intended that the Court shall necessarily draw the corollary that vehicles in a funeral procession have a customary privilege of ignoring traffic signals. Can such a privilege exist in the face of legislative conmiand that a vehicle shall not proceed through a red light? Obviously positive legislation overrides any inconsistent custom. Otherwise those to whom the law-making power is entrusted could find their functions 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 , that _iDOC 34

44 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. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 44 of Watanabe, who signed the judgment in Criminal No , is now _1.DOC 35 deceased. obviously raising the same arguments previously made to this Court in opposition this case and 36 other cases, which repeatedly raised the same claims). Torres is repetitive charges ); Wood v. McEwen, 644 F.2d 797, 800 (9t Cir. 1981) (filing of complaints under remarkably similar circumstances of generalized allegations and Cir. 1983) (Ninth Circuit had previously affirmed dismissal of several of plaintiff s sanctions); A. V. Constantini v. Civil Aeronautics Board, 706 F.2d 1025, 1026 (9th those issues may give rise to a finding of frivolousness sufficient to support 1984) (when issues are raised and disposed of in prior proceedings, reassertion of that court is a frivolous appeal. Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir. An appeal asking the Court of Appeals to review issues already decided by H. The Issues Raised in This Appeal Were Decided In an Earlier Appeal purely speculation, and the evidence being offered is irrelevant. 15 made no attempt to comply with the Federal Rules of Evidence, because it is written judgment does not reflect the intent of the judge who signed it. Torres has Read requests this Court to disregard Torres proffered evidence that the evidence would not be admissible for the purpose of proving that a prisoner s

45 In the Opening Brief in Aiston, supra., Read stated that the District Court immunity. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 45 of _IDOC Court make take judicial notice of the contents of its own files. FRE, Rule institutional file in calculating his or her release date. Appx. at A prison official is entitled to rely upon the contents of a prisoner s Alston s sentencing. Appx. at 30-41; and Read was entitled to apply HRS as it existed at the time of 17-19; The operative document to incarcerate a prisoner is the judgment. Appx. at Read then argued that he was entitled to qualified immunity because: investigation to prove or disprove Aiston s assertions of overdetention. Appx. at rights; and that under some circumstances Read was required to perform a further the decision to apply HRS was a violation of Alston s Federal civil in prison for 145 days more than what was intended by the sentencing judge; that other documents to ascertain the intention of the sentencing judge; that Aiston was which Aiston was originally incarcerated, but were required to obtain and review had incorrectly ruled that Read was not entitled to rely on the judgment upon to Thomas Read and Nettie Simmons earlier appeals of the denial of qualified

46 total change in how sentences would be computed by the Department of Public CR/ER at 1. There, Mr. Schweigert argued that [tihis case involves the Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 46 of judgment, which was silent as to whether the sentence was to 663 F.3d at 1099 (emphases added) _1.DOC 37 recalculated under DPS s change in policy contrary to the unexpressed intent of sentencing judges unaware of the policy conformed to Hawaii state law. recalculated sentence, based on the information in the judgment, run concurrent or consecutive with previous sentences. Alston s change. Aiston s institutional file contained a copy of the November Viewing the facts in Aiston s favor, Read and Simmons had notice only that possibly hundreds of prisoners had sentences After reviewing the facts presented, the Aiston Court noted: Aiston, supra. CR/ER 48 at This is the same issue that was raised in, and ruled upon, in why applying HRS as written violated Torres civil rights. Supp. Judgment in the Torres case, Mr. Schweigert spends a considerable time discussing In the Memorandum in Opposition to Read s Motion for Summary Department s long-standing practice. Supp. CRIER at 7-9. Federal constitutional rights because the application of the statute varied from the that application of HRS was, in itself, a violation of Mr. Aiston s released from Hawaii incarceration. Supp. CRIER at 6. He further argued Safety...who is in charge of setting the max out date when a prisoner may be Alston s Answering Brief was authored by Torres current counsel. Supp.

47 Aiston argued only that Read and Simmons should not have applied evidence that Read and Simmons were misinterpreting his sentences. the relevant state statute and failed to present any documentary Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 47 of F.3d at 1099 (emphasis in original) 663 F.3d at (emphasis added) 17 Given this concession, it is unclear why Torres suggests that Read may be held j.DOC 38 liable for not reviewing the contents of documents contained in Torres files at the courthouse. Opening Brief at 18, n. 9. Torres counsel appears unwilling to abandon this argument despite the clear teachings of this Court in Aiston. qualified immunity, it had to rule: (1) There is no requirement that prison officials Obviously, in order for the Aiston Court to rule that Read was entitled to court records. 7 Opening Brief at Aiston stands only for the proposition that a prison official is not required to search dispositive of Torres claim. Torres counsel, on the other hand, believes that qualified immunity. Judge Mollway, and Read s counsel, believe Aiston is Based on this analysis, the Aiston Court ruled that Read was entitled to file. was initially received from the court for inclusion in DPSs institutional courthouse records that might affect Alston s sentence beyond what the original judgment received from the court in their sentencing calculations and were not required to go in search of additional Read and Simmons were entitled to rely on the state statute and Finally, the Alston Court concluded that: his sentence to make sure it conformed to unambiguous state law. Indeed, Read and Simmons were trying to correct the computation of The Aiston Court went on to state:

48 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: Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 48 of F.3d at (emphasis added). I. Torres Had No Procedural Due Process Right to a Hearing j.DOC 39 interfered with by the State; the second examines whether the procedures attendant the first asks whether there exists a liberty or property interest which has been When examining procedural due process claims, courts must take two steps: Department corrected its erroneous earlier calculation of his max out date. process rights were violated because he was not given a hearing after the Torres is also alleging that his Fourteenth Amendment procedural due conformance with HRS did not violate his Federal civil rights. necessity, the Aiston panel ruled that the recalculation of Aiston s sentence in Federal civil rights, Read would not have been entitled to qualified immunity. By if recalculating Alston s sentence pursuant to HRS violated his The interpretation urged by Torres counsel does not make sense. After all, was initially received from the court for inclusion in DPS s Read and Simmons were entitled to rely on the state statute and the original judgment received from the court in their sentencing calculations and were not required to go in search of additional courthouse records that might affect Aiston s sentence beyond what institutional file. review courthouse files, and (2) That with the information that was in Read s

49 To date, Torres counsel has stated that the protected liberty interest is the Corrections v. Thompson, 490 U.S. 454, 460(1989). Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 49 of _1.DOC 40 in remaining free. who was mistakenly released from prison did not have cognizable liberty interest to prison following his mistaken release. The District Court held that the inmate correctional officials, alleging due process violations in connection with his return state inmate brought civil rights action against various law enforcement and See also Campbell v. Williamson, 783 F.Supp (C.D. Ill. 1992) where a no need for the pre-detention hearings. Henderson, 223 F.3d at With no liberty interest to protect, there is no violation of due process and not have a legitimate claim of entitlement to freedom. Henderson, 223 F.3d at protected liberty interest. This was because the erroneously released prisoner does due to an error in the method of calculating their release dates, did not have a that prisoners who were arrested after it was determined they were released early, In Henderson v. Simms, 223 F.3d 267 (4th Cir. 2000) the Fourth Circuit held considered similar issues have held that no such protected liberty interest exists. interest in having sentence calculated in violation of Hawaii law. Cases that have is alleged at too abstract a level. Torres must show that he had a protected liberty interest in being free from unlawful incarceration. This alone is not enough, as it upon that deprivation were constitutionally sufficient. Kentucky Department of

50 mandatory minimum term of five years imprisonment. Three years later he was 1977) a prisoner pled guilty to a sale of heroin, for which the penalty was a Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 50 of _IDOC 41 undisputed facts... ) calculation of a sentence which only involved an application of state law to Fourteenth Amendment violation for failing to provide for a hearing regarding the See also Davis v. Oregon, 472 Fed. Appx. 846 (9th Cir. 2012) (no McKellar, 556 P.2d at have to assert the fact that appellant has not yet served the mandatory five years he owes, and to that assertion appellant has no defense. In essence, granting appellant procedural due process in this instance Morrissey v. Brewer, supra, what would the issue be? Appellant has committed no wrong, so the state could allege none. The state would would be to grant him nothing. If appellant were granted a hearing before the revocation, pursuant to entitled to a due process hearing prior to reincarceration. imprisoned, was not cruel or unusual punishment, and (2) the prisoner was not releasing the prisoner for two and one-half months, after which time he was again prisoner appealed. The Arizona Supreme Court held that: (1) mistake of the state in taken back into custody. A petition for writ of habeas corpus was denied and the model parolee. When the authorities realized their error, however, the prisoner was eligible for parole, and for two and one-half months he conducted himself as a granted parole pursuant to an incorrect computation of date on which he would be In McKellar v. Arizona Department of Corrections, 566 P.2d 1337 (Ariz.

51 interest in having his max out date calculated in violation of Hawaii law. Additionally, there were no disputed facts. The prisoner was merely complaining Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 51 of _1.DOC Torres believed this was important because if there was a large number of judgments versus those who did not get amended judgments. Supp. CR/ER 55 at HRS and also what the number of those inmates who got amended number of recalculations done by OMO [Offender Management Office] under According to the Declaration of Torres counsel, he was seeking the His complaint has no merit. further discovery prior to having the Motion for Summary Judgment being heard. Torres complains he should have been given additional time to conduct Additional Time to Conduct Further Discovery J. The District Court Ruled Correctly That Plaintiff Was Not Entitled to to obtain an amended judgment to gain his freedom. would not be entitled to simply ignore the judgment. Torres would still have had documents in his files at the courthouse which contradicted the judgment, Read Additionally, even if Torres had presented evidence that there were calculating (or recalculating) his release date. interest, Read was not required to provide Torres with a hearing prior to facially-valid written judgment. Since Torres had no cognizable protected liberty that his sentence was being calculated in accordance with the law, based on a The same situation exists here. Torres does not have a protected liberty

52 unreasonable and unjust act. Supp. CRIER 55 at 2. of bad acts which would go towards negating his qualified immunity as an Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 52 of _1.DOC 43 outcome of the appeal reported in Aiston v. Read, 663 F.3d 1094 (9th Cir. 2011). Notably, this action is identical to the Aiston v. Read case filed in the District Court, which has again been stayed pending the outcome of this appeal, as well as The Aiston case was pled as a class action, and was filed in Torres counsel, However, he wishes to treat the action as if it was a class action, rather than a collection of individual claimants. who is also the counsel in Aiston, has refused to move to certify a class in Aiston. v. Dydasco, ICA No. CAAP ). Aiston was initially stayed pending the an appeal currently pending in the Hawaii Intermediate Court of Appeals (Siineona on Read s Motion for Summary Judgment. Even if there had been hundreds of explain how this discovery would have any effect on the District Court s decision The Declaration of Torres counsel suffers from a major defect: It fails to followed the law. reviewing hundreds of files to advise Torres counsel how many times Read properly applying Hawaii law to the prisoners is a bad act. Read has resisted caused him to be overdetained. 18 At the present time, no court has ruled that be determined is whether or not the application of HRS to Torres the proper application of HRS is irrelevant because the only issue to obtained amended judgments following the calculation of their sentences based on overdetention cases filed by Torres counsel: The number of times prisoners Read has taken the same position since the start of the numerous amended judgments that followed recalculations, then Read would have had notice

53 wrote. The District Court ruled that Read had the right to rely upon the written the written judgments in every other case as well. prisoners who obtained amended judgments after their sentences were calculated in conformance with HRS , that does not mean that Read should have judgment. No amount of proposed discovery would have altered that conclusion, stopped applying the law, or that the sentencing judge didn t really mean what he because the District Court would also have found that Read had the right to rely on discovery where the requesting party has failed to show how allowing the the judgment; Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 53 of 57 The operative document to determine the length of an inmate s sentence is sentencing documents in their possession without fear of civil liability; The Ninth Circuit has already held that prison officials may rely upon the Aiston v. Read, supra, is controlling, as the facts are nearly identical; Judge Moliway s decision should be upheld because: CONCLUSION 1996) _IDOC 44 additional discovery would have precluded summary judgment. Maijack There is no abuse of discretion in refusing to allow time for additional

54 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 54 of 57 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, STATE OF HAWAII DAVID M. LOUIE Attorney General State of Hawaii Is/John F. Molay JOHN F. MOLAY Deputy Attorneys General Attorney for Defendant-Appellee Thomas Read _1.DOC 45

55 Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 55 of 57 STATEMENT OF RELATED CASES Pursuant to Circuit Court Rule (c) Defendant-Appellee Read advises the Court that the case of Aiston v. Read, Ninth Circuit Appeal No is a related case in that it raises the same or a closely related issue. DATED: Honolulu, Hawaii, September 5, STATE OF HAWAII DAVID M. LOUIE Attorney General State of Hawaii Is/John F. Molay JOHN F. MOLAY Deputy Attorneys General Attorney for Defendant-Appellee Thomas Read _1.DOC 46

56 32(a)(7)(B) because this Brief contains 10,958 words, excluding the parts of the This Brief complies with the type-volume limitation of Fed. R.App.R. Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 56 of _1.DOC 47 JOHN F. MOLAY Thomas Read /s/john F. Molay Deputy Attorneys General Attorney for Defendant-Appellee State of Hawaii DAVID M. LOUIE Attorney General STATE OF HAWAII DATED: Honolulu, Hawaii, September 5, Brief exempted by FRAP, Rule 32(a)(7)(B)(iii). CERTIFICATE OF COMPLIANCE

57 foregoing document with the Clerk of Court for the United States Court of Appeals Case: , 09/05/2013, ID: , DktEntry: 27-1, Page 57 of 57 I hereby certify that on September 5, 2013, I electronically filed the Is! John F. Molay _1.DOC 48 JOHN F. MOLAY Deputy Attorneys General Attorney for Defendant-Appellee Thomas Read DAVID M. LOUIE State of Hawaii Attorney General STATE OF HAWAII DATED: Honolulu, Hawaii, September 5, Halekauwila Street, Rm 309 JACK SCHWEIGERT, ESQ. Honolulu, Hawaii Attorneys for Plaintiff-Appellant the appellate CM/ECF system: Participants in the case who are registered CM/ECF users will be served by for the Ninth Circuit by using the appellate CM/ECF system. READ S ANSWERING BRIEF CERTIFICATE OF SERVICE OF DEFENDANT-APPELLEE THOMAS