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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                02-NOV-2018
                                                                09:19 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---oOo---
________________________________________________________________

                             MUKADIN GORDON,
                     Petitioner/Plaintiff-Appellant,

                                      vs.

    JODIE F. MAESAKA-HIRATA; PETRA CHO; and STATE OF HAWAI‘I,
                Respondents/Defendants-Appellees.
  _____________________________________________________________

                              SCWC-XX-XXXXXXX

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-XX-XXXXXXX; CIV. NO. 11-1-2482)

                              NOVEMBER 2, 2018

    RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
                  WITH WILSON, J., DISSENTING

                  OPINION OF THE COURT BY McKENNA, J.

                             I.    Introduction

    Pretrial detainees — individuals who have been arrested and

charged, but remain in jail while awaiting trial — have a due

process right to be free from punishment until convicted of a

crime.    Bell v. Wolfish, 441 U.S. 520, 535 (1979).           Mukadin

Gordon (“Gordon”) filed suit because he was held in solitary
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confinement by State of Hawaiʻi (“State”) prison officials for

more than nine months following his arrest in August 2010.

Gordon requested monetary damages pursuant to Title 42, Section

1983 of the United States Code (“U.S.C.”) and state tort law.

Following a jury-waived trial, the Circuit Court of the First

Circuit (“circuit court”)1 entered judgment in favor of the

defendants on all claims.         The Intermediate Court of Appeals

(“ICA”) affirmed.

      We hold that Gordon’s placement in solitary confinement for

more than nine months constituted unlawful pretrial punishment

in violation of the due process clauses of the Fourteenth

Amendment to the United States Constitution and Article I,

Section 5 of the Constitution of the State of Hawaiʻi.              We also

hold, however, that although the circuit court applied an

incorrect standard for federal qualified immunity, defendant

Petra Cho (“Cho”) is not liable for damages under 42 U.S.C. §

1983 for the federal constitutional violation because the basis

of her decision to retain Gordon in pretrial solitary

confinement did not violate a clearly established constitutional

right of which every reasonable official would have known.                 We

also hold the circuit court did not err by concluding Cho has no

negligence liability based on state qualified immunity


1
      The Honorable Edwin C. Nacino presided.


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principles.       In addition, as the State has not waived sovereign

immunity for damages claims based on state constitutional

violations, the State is not liable for damages for the state

constitutional violation.

           We therefore overrule the ICA’s memorandum opinion insofar

as it conflicts with our conclusions herein, but affirm the

ICA’s judgment on appeal in favor of the defendants.

                                II.   Background

A.     Circuit Court Pretrial Proceedings

       Gordon filed a civil complaint arising from his pretrial

detention at the Oahu Community Correctional Center (“OCCC”) and

the Halawa Correctional Facility (“HCF”).             He alleged he was

incorrectly classified as a maximum security pretrial detainee

and placed in solitary confinement for a total of nine months

and twenty-two days between 2010 and 2011.2

       In this opinion, we address only the claims asserted by

Gordon in his amended complaint against Cho and the State

(collectively, “the Defendants”) that he continues to assert on

appeal.3      Through his first cause of action, Gordon alleges a 42


2
      Gordon’s Application for Writ of Certiorari asserts he spent nine
months and twenty-two days in solitary confinement. His amended complaint
alleges it was about nine months and twenty-four days. At trial, Gordon’s
counsel represented the time period lasted 296 days.
3
      Many of the original individual defendants were dismissed or replaced
as parties at or prior to trial. Gordon’s original complaint included claims
against defendants Clayton Frank, Francis Sequiera, William Rushing, Faatuila
Pula, Michael Taamilo, Aaron Mirafuentes, and Gene Pomeroy. Clayton Frank
                                                              (continued. . .)

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U.S.C. § 1983 claim for violation of his right to due process

under the Fourteenth Amendment to the United States Constitution

against Cho; he also alleges a violation of his right to due

process under Article I, Section 5 of the Constitution of the

State of Hawaiʻi against the State.           Through his fourth cause of

action, he alleges negligence against Cho.             Gordon seeks

general, special, and punitive damages, attorneys’ fees and

costs, and such other relief as deemed appropriate.

B.     Circuit Court Trial

       The circuit court conducted a two-day jury-waived/bench

trial that decided Gordon’s federal 42 U.S.C. § 1983 claim

against Cho in her individual capacity and his state negligence

claim against Cho.


(. . . continued)
was replaced by Jodie F. Maesaka-Hirata in Gordon’s amended complaint.
Faatuila Pula was dismissed by stipulation before trial. At trial, Gordon
orally moved to dismiss the claims against Francis Sequiera, William Rushing,
Michael Taamilo, Aaron Mirafuentes, and Gene Pomeroy. An order dismissing
with prejudice all claims against those defendants was filed after trial.
      Many causes of action were also dismissed or are no longer being
pursued on appeal. In his first cause of action, Gordon originally asserted
42 U.S.C. § 1983 claims for alleged violations of his rights under the
Fourth, Eighth, and Ninth Amendments to the United States Constitution, and
he also alleged violations of Article I, Sections 2, 6, 7, 8, and 12 of the
Constitution of the State of Hawaiʻi. He also alleged intentional infliction
of emotional distress against the individual defendants in the second cause
of action, negligent infliction of emotional distress in the third cause of
action, and negligent training, supervision, and/or discipline by Jodie F.
Maesaka-Hirata and the State in the fifth cause of action.
      Before trial, the circuit court granted the Defendants’ motion for
summary judgment in part, dismissing Gordon’s 42 U.S.C. § 1983 claims against
the State and the individual defendants in their official capacities, but
denying the motion with respect to Gordon’s 42 U.S.C. § 1983 and negligence
claims against Cho.




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      1.     The circuit court’s findings of fact

      The circuit court found the following facts relevant to the

issues on certiorari.

             a.    Gordon’s pretrial detention

      On August 22, 2010, Gordon was arrested on charges of seven

counts of sexual assault in the first degree, one count of

attempted sexual assault in the first degree, four counts of

sexual assault in the third degree, one count of promoting

prostitution, and one count of kidnapping in the first degree.

From August 26, 2010, to June 16, 2011, Gordon was held in

maximum security custody at OCCC and HCF while he awaited trial

on his criminal case.

             b.    Initial custody classification and conditions

      On August 26, 2010, Department of Public Safety (“DPS”)

employee Faatuila Pula (“Pula”) conducted Gordon’s initial

intake interview at OCCC and filled out a Jail Initial Custody

Instrument (“Initial Custody Instrument”) to determine his

custody status.       This document was completed using information

from the Hawai‘i Criminal Justice Inquiry System, the National

Crime Information Center, and a brief interview with Gordon.4


4
      The Initial Custody Instrument established Gordon’s custody status by
assigning predetermined point values to various aspects of his personal,
criminal, and institutional history. Specifically, the Initial Custody
Instrument evaluated Gordon’s age, the severity of his current charges, his
prior convictions, his “history of assaultive behavior,” his escape history,
and his “pending charges or detainer.” Gordon’s history of prior convictions
                                                              (continued. . .)

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After completing the Initial Custody Instrument, Pula determined

that Gordon had a total of nineteen “points” and accordingly

classified Gordon as a maximum custody detainee.5

      Based on this custody classification, Gordon was placed in

maximum security custody in the OCCC Holding Unit for thirty

days.     While there, Gordon was alone in a small cell for twenty-

three hours per day, had limited access to showers and reading

materials, and was not permitted any phone calls.              Gordon

requested mental health services during the one-month detainment

in the OCCC Holding Unit, but was never provided with any.

             c.    September 2010 custody evaluation

      On September 22, 2010, an administrative program committee

(“the Committee”) conducted a hearing to further evaluate

Gordon’s security custody classification, programming needs, and

whether housing at OCCC was appropriate for him.              Cho, a DPS

correctional supervisor, was the Committee’s chairperson.6                 When

evaluating an inmate’s security classification and housing


(. . . continued)
and “history of assaultive behavior” both took into account the number and
severity of his prior convictions, including petty misdemeanors,
misdemeanors, and felonies.
5
      According to the Initial Custody Instrument, a score of zero to eight
points yielded a security classification of minimum custody, a score of nine
to seventeen points resulted in a classification of medium custody, and a
score of eighteen points or greater resulted in a maximum custody
classification.
6
      The other members of the Committee were Aaron Mirafuentes and Michael
Taamilo, who were dismissed as defendants at trial.



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needs, the Committee can consider “all aspects regarding an

inmate,” including the inmate’s institutional file, current

charges, prior convictions, and the inmate’s own testimony.

Accordingly, Cho and the Committee considered Gordon’s own

statements that he did not think he should be a maximum custody

detainee, had done reasonably well at OCCC, and that there was

an error concerning his initial custody classification because

it was based in part on charges that were not actually pending.7

      The Committee decided, however, that Gordon should remain

at the maximum custody level and should be housed at HCF High

Security.      It notified him of this decision in a written

document designated as an “Amended Notice of Programming

Results” (“Programming Results”).           The Programming Results

acknowledged that Gordon had “not received any major

misconducts” since being admitted to OCCC.            However, Cho and the

Committee decided that Gordon should remain as a maximum custody

detainee, in solitary confinement, for the following reasons:

             -     The nature and seriousness of his current charges;
             -     The number and kind of his prior convictions;
             -     His extensive criminal history and numerous periods
             of incarceration;
             -     His failure to comply with two residential drug
             treatment programs;

7
      Based on her review of the Hawai‘i Criminal Justice Inquiry System, Pula
believed that Gordon had an unrelated but pending Sex Assault in the First
Degree charge in Hawai‘i, and Gordon’s failure to appear at a hearing for that
charge was counted as a pending or no-show appearance for calculating his
custody status. Sometime after his initial classification, it was discovered
that Gordon did not actually have a pending sexual assault charge; the 2006
charge had in fact been resolved before he was arrested in August 2010.



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             -     Leaving the state without permission while on
             probation;
             -     His extradition to Hawaii;
             -     The fact that [Gordon] was on probation when charged
             with his current offenses;[8]
             -     His $1,000,000.00 bail amount; and
             -     [O]ther factors identified in the committee’s Amended
             Notice of Programming Results.

Additionally, the Committee noted Gordon’s probation status,

unpaid restitution amounts, and the opinion of his probation

officer that his case was “questionable.”9            The Committee

provided final comments explaining its decision:

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

      According to Cho, an inmate classified as maximum security

“needs more direct supervision” by correctional officers,

especially when outside of his or her cell, and the Committee

felt that OCCC was unable to provide the level of supervision

required for Gordon.        In evaluating his custody status, Cho
8
      The State represents that “Gordon was arrested and detained as a
pretrial detainee” [39:2] and does not argue that Gordon was held in custody
for alleged violations of conditions of probation for offenses for which he
had already been convicted. This case is therefore analyzed based on the
constitutional rights of pretrial detainees, who cannot be subjected to
punishment. Bell, 441 U.S. at 535. Regardless, post-conviction defendants
still have constitutional rights against cruel and unusual punishment. See
Bell, 441 U.S. at 535 n.16 (“A sentenced inmate . . . may be punished,
although that punishment may not be ‘cruel and unusual’ under the Eighth
Amendment.”); State v. Guidry, 105 Hawai‘i 222, 237, 96 P.3d 242, 257 (2004)
(explaining the proportionality test of the prohibition on “cruel and
unusual” punishment in Article I, Section 12 of the Hawai‘i Constitution).
9
      The Programming Results did not indicate when or how the Committee
learned the probation officer’s opinion, nor did it indicate which case —
Gordon’s pending case or his probation case — was “questionable,” or what
“questionable” meant.


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never harbored malice or ill-will toward Gordon and did not

believe Gordon was punished when he was placed in maximum

custody conditions.

    Gordon filed a grievance challenging the Committee’s

decision on September 29, 2010.

           d.    October 2010 Exception Case Form

    On October 5, 2010, Cho received a memorandum from her

supervisor, Lance Rabacal (“Rabacal”).          The memorandum

instructed Cho to “adhere to the directive process that has been

consistently utilized at our facility pertaining to MAX custody

inmates,” which was attached.        That memorandum, originally

written by a former OCCC warden in November 1996, laid out the

State’s “arrangement with the ACLU” (“ACLU Memo”) regarding

procedures for processing maximum custody pretrial detainees.

The ACLU Memo provided that pretrial detainees classified as

maximum custody “shall be housed in the [OCCC] Holding Unit for

30 days,” and “[i]f the inmate remains misconduct free and is

not a management problem, OCCC shall then reduce the inmate’s

custody to Medium and re-house in general population.”             It also

provided that “if the inmate incurs misconducts during the 30-

day period, and/or is a management problem, he shall be

transferred to HCF as a Max custody.”         According to Rabacal, the

ACLU Memo was “used as a guideline to determine when a

recommendation to reduce custody” should be considered.

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    On or about October 12, 2010, an Exception Case Form was

started for Gordon under Cho’s name.         This form noted that

Gordon had “not shown nor accrued any institutional behavioral

misconducts within the OCCC holding unit” and recommended a

medium custody classification “[b]ased on 10/5/10 OCCC MAX

CUSTODY INMATES directive from Lance Rabacal.”           The Exception

Case Form was sent to the DPS Classification Office, which

considers the totality of the circumstances when making the

decision to reduce or maintain an inmate’s custody level.

    Linda Chun (“Chun”), an officer in the Classification

Office, denied Gordon’s Exception Case Form on October 19, 2010.

Chun recorded the reasoning for her decision on the Exception

Case Form itself, noting Gordon’s behavior in the OCCC Holding

Unit had been satisfactory thus far, but explaining that she

thought he should remain in maximum custody for the following

reasons:

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

Chun believed, based on her training, experience, and the

reasons she cited, that it was reasonable to place a pretrial

detainee in maximum security housing.



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    The disapproved Exception Case Form was submitted to Deputy

Director of Corrections Tommy Johnson (“Johnson”) for review.

On October 21, 2010, Johnson denied Gordon’s request because he

believed Chun’s statements on the Exception Case Form were true,

although he had no personal knowledge of the basis for the

statements.     Johnson did not believe Gordon’s custody level was

punishment.

           e.    Subsequent grievances and conditions at HCF

    From September 29, 2010, through March 24, 2011, Gordon

filed eight Inmate Complaint/Grievances challenging his

classification and placement in solitary confinement.             Gordon

sought reclassification to medium custody and transfer to OCCC,

but none of his grievances were granted.

    Gordon was transferred to HCF on October 25, 2010, and was

placed in maximum custody.       As a pretrial detainee at HCF, he

was alone in his cell for twenty-three hours per day, was given

forty-five minutes to an hour of recreational time five days a

week, had no access to a shower on weekends, and was only

allowed noncontact visits with his attorney.           He was strip

searched daily and searched again each time he returned to his

cell.   Gordon had limited access to phone calls, did not have

access to a commissary, and was denied access to programs.

    According to Monica Lortz (“Lortz”), an HCF Corrections

Supervisor, DPS policy requires the custody status of every

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maximum custody inmate, whether pretrial detainee or sentenced

prisoner, to be reassessed once a year.             In June 2011, at the

instruction of the deputy warden and after Gordon had been at

HCF for eight months, Lortz reevaluated Gordon’s custody status

using a Jail Inmate Custody Review Instrument (“Custody Review

Instrument”).       After completing the Custody Review Instrument,

Lortz assigned Gordon a total of thirteen points, which

corresponded to a medium custody level.10            Gordon’s custody level

was therefore reduced from maximum to medium, and he was

returned to OCCC on June 16, 2011.

       After Gordon was sentenced for his pending charges in

September 2011, he was returned to HCF.11            At the time of the

trial in his civil case, Gordon was held at HCF in medium

security custody.

       2.     The circuit court’s conclusions of law

       The circuit court rendered the following conclusions of law

relevant to the issues on certiorari.



10
      The Custody Review Instrument employed a point system similar to the
Initial Custody Instrument, but limited its consideration of Gordon’s
criminal history to felony convictions and escapes within the past ten years,
and institutional misconduct within the past twelve months. According to the
Custody Review Instrument, male inmates with a total of zero to nine points
resulted in a security classification of minimum custody, ten to fifteen
points resulted in a medium custody classification, and a point total greater
than sixteen resulted in a maximum custody classification.
11
      Gordon testified that he was eventually convicted of “sex assault,
promotion of prostitution, kidnapping, and drug promotion” in August 2011,
and was sentenced to ten years of imprisonment with the possibility of
parole, with a mandatory minimum of three years and four months.


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

    Citing the United States Supreme Court’s opinion in Bell,

the circuit court stated that pre-trial detainees have a

substantive due process right against custodial restrictions

that amount to punishment, but also that not every condition

imposed during pretrial detention amounts to punishment.             To

determine whether a condition is punishment, the circuit court

determined that it must look to whether the restrictions evince

a punitive purpose or intent, and in the absence of an express

intent to punish, it must then consider whether punitive intent

can be inferred from the nature of the restriction.            The circuit

court further noted that whether punitive intent can be inferred

generally turns upon whether an alternative purpose to which the

restriction may rationally be connected is assignable for it,

and whether the restriction appears excessive in relation to the

alternative purpose assigned to it.

    The circuit court concluded that Gordon’s constitutional

rights were not violated based on the lack of substantive

evidence showing that Defendants categorized him as a maximum

custody pre-trial detainee purely to impose punishment upon him.

Furthermore, the circuit court concluded the conditions to which

Gordon was subject as a maximum custody detainee were

“reasonably related to a legitimate government objective which

is to maintain a safe and secure correctional facility,” and

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were no different from the restrictions and conditions of any

other maximum custody inmates.           The circuit court also concluded

that Gordon did not prove “that the conditions of maximum

custody imposed by Defendants to maintain a safe and secure

correctional facility were excessive to accomplish such

objective nor expressly intended as punishment,” and that “the

restrictions and conditions [Gordon] was subjected to did not

amount to punishment.”12

         Determining that Cho complied with the guidelines of the

ACLU Memo, the circuit court also concluded that Cho was

12
         The circuit court compared Gordon’s case to a number of earlier federal
cases:

               Based on the totality of the facts, various documents in
               evidence and credible trial testimony and the lack of any
               evidence to the contrary, the court concludes that the
               restrictions and conditions [Gordon] was subjected to did
               not amount to punishment. Compare [Bell, 441 U.S. 520]
               (holding that double-bunking, body-cavity searches, the
               prohibition against the receipt of packages, or the room-
               search only rule did not amount to punishment under the
               facts of the case), and Brock v. Rutherford, 468 U.S. 576
               (U.S. 1984) (holding that a blanket prohibition on contact
               visits with pretrial detainees and shakedown searches of
               pretrial detainees’ cells outside their presence does not
               amount to punishment), with Anela v. Wildwood, 790 F.2d
               1063 (3rd Cir. N.J. 1986) (holding that failing to provide
               beds or mattresses and food and drinking water amounted to
               punishment), and Demery v. Arpaio, 378 F.3d 1020, 1033 (9th
               Cir. Ariz. 2004) (holding that the sheriff’s policy of
               transmitting live images over the internet of pretrial
               detainees by webcam was an excessive response to the
               purpose assigned to it).

      None of these cases dealt with solitary confinement, although Bell and
Brock addressed searches and non-contact visitation similar to what Gordon
experienced. Gordon’s claim appears to challenge his maximum security
classification as a whole, rather than any specific procedure. We therefore
address whether maximum security custody as a whole, as Gordon experienced
it, amounted to punishment.



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entitled to qualified immunity from Gordon’s 42 U.S.C. § 1983

claims “because she did not knowingly violate [Gordon’s]

Constitutional rights” and Gordon did not suffer punishment.

              b.    Gordon’s negligence claim

       The circuit court determined that “Cho, individually, is

afforded the protections of a qualified privilege as to

[Gordon]’s state law claims because [Gordon] did not prove by

clear and convincing evidence that Defendant Cho was motivated

by malice and not by an otherwise proper purpose.”               Accordingly,

the circuit court ordered judgment to be entered for Cho.13

C.     ICA Proceedings

       On appeal, Gordon challenged the circuit court’s findings

and conclusions that (1) Gordon’s initial custody classification

was correct; (2) the conditions to which he was subjected did

not constitute punishment; (3) the Defendants acted reasonably

in their application of their classification procedure; and (4)

Cho was entitled to qualified immunity.

       In a memorandum opinion, the ICA affirmed the circuit

court’s judgment.        Gordon v. Maesaka-Hirata, No. CAAP-14-914

(App. May 30, 2017) (mem. op.) at 2, 28.             The ICA noted that in


13
      The circuit court did not address Gordon’s state constitutional due
process claim. It also did not specifically address Gordon’s intentional
infliction of emotional distress claim. In any event, the circuit court
concluded the Defendants were not liable for negligent infliction of
emotional distress, which required less proof, and Gordon does not pursue the
emotional distress causes of action on certiorari.


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deciding to keep Gordon in maximum security custody, Cho and the

Committee, as well as Chun in the Classification Office, relied

on factors such as “the nature of the current charges, bail

amount, criminal history, failure to complete probation, and

unaddressed substance abuse issues[.]”            Gordon, mem. op. at 19-

20.   The ICA concluded that these factors, among other things,

provided “substantial evidence [to] support . . . the Circuit

Court’s conclusion that the individual prison officials acted

reasonably in keeping Gordon in Max Custody.”            Gordon, mem. op.

at 19.

      The ICA acknowledged that “while Gordon has no

constitutional right to a certain classification, he possesses a

right to be free from punishment prior to an adjudication of

guilt.”    Gordon, mem. op. at 23.         “[O]n the totality of the

record of this case,” the ICA concluded that the circuit court

did not err “in determining that Gordon’s Max Custody did not

constitute pre-trial punishment.”          Gordon, mem. op. at 20.        In

the ICA’s view, “Gordon cite[d] no evidence or legal authority

that his Max Custody classification constituted punishment” and

“the evidence led to the conclusion that the conditions were

reasonably related to legitimate government objectives related

to the safety and security of the correctional facilities and

that they were not excessive for that purpose.”            Gordon, mem.

op. at 19-20.

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       The ICA determined Gordon did not show evidence of punitive

intent and failed to show there was no alternative reason for

his treatment other than punishment, or that his treatment was

excessive in relation to its alternative purpose.               Gordon, mem.

op. at 24.       The ICA also observed that Gordon “failed to

establish that the procedure detailed in the ACLU Memo is

guaranteed to him” or that it otherwise overrides the deference

owed to prison officials.          Gordon, mem. op. at 24-25.        The ICA

concluded, instead, that “[t]he reasons for keeping Gordon in

Max Custody were clearly articulated and appear to be related to

the legitimate nonpunitive governmental objective of security

and safety.       Gordon has not shown that he was subject to an

arbitrary action of government.”             Gordon, mem. op. at 25,

(citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).

       Finally, with respect to Cho’s state law qualified

immunity, the ICA held that the circuit court did not err and

that Gordon failed “to meet his burden under [Towse v. State, 64

Haw. 624, 647 P.2d 696 (1982),] to establish that Cho was

motivated by malice or otherwise improper purpose.”               Gordon,

mem. op. at 26-27.

D.     Application for Writ of Certiorari

       Gordon presents three questions in his application for writ

of certiorari (“Application”):

              A. Whether the ICA gravely erred in holding that the
              restrictions and conditions of Petitioner’s solitary

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           confinement in Maximum Custody for nine months and twenty-
           two days did not constitute unlawful pretrial punishment
           where, inter alia, (1) Petitioner was locked in an
           isolation cell for approximately twenty-three hours each
           day, (2) Petitioner was generally allowed only non-contact
           visits with his attorney, and (3) Petitioner was subjected
           to multiple strip searches on a daily basis.

           B. Whether the ICA gravely erred in holding that [DPS]
           officials did not act arbitrarily and capriciously in
           holding Petitioner in Maximum Custody where (1)
           Petitioner’s initial custody level was calculated
           incorrectly; (2) DPS failed to abide by established inmate
           classification policies and procedures; and (3) Petitioner
           was not an escape risk, had never assaulted anyone while in
           prison, and had never been a threat to prison discipline
           and good order.

           C. Whether the ICA gravely erred in holding that Respondent
           PETRA CHO was entitled to qualified immunity and that
           Petitioner failed to establish that Respondent CHO was
           motivated by malice and not by an otherwise proper purpose
           in confining Petitioner to Maximum Custody where (1) the
           incorrect calculation resulting in Petitioner’s initial
           custody level was known to Respondent CHO, and (2)
           Respondent CHO refused to correct Petitioner’s erroneous
           custody classification within a reasonable period of time.

[SC DOC 1:2]

                       III.    Standards of Review

     A trial court’s findings of fact are reviewed under the

clearly erroneous standard:

           A finding of fact is clearly erroneous when, despite
           evidence to support the finding, the appellate court is
           left with the definite and firm conviction in reviewing the
           entire evidence that a mistake has been committed.
           A finding of fact is also clearly erroneous when the record
           lacks substantial evidence to support the finding. We have
           defined ‘substantial evidence’ as credible evidence which
           is of sufficient quality and probative value to enable a
           person of reasonable caution to support a conclusion.

In re Grievance Arbitration Between State of Haw. Org. of Police

Officers (“SHOPO”), 135 Hawai‘i 456, 461–62, 353 P.3d 998, 1003–

04 (2015) (quoting Daiichi Haw. Real Estate Corp. v. Lichter,

103 Hawai‘i 325, 337, 82 P.3d 411, 423 (2003)).

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       Conclusions of law are ordinarily reviewed under the

right/wrong standard.         Estate of Klink ex rel. Klink v. State,

113 Hawai‘i 332, 351, 152 P.3d 504, 523 (2007).              A conclusion of

law that is supported by the trial court’s findings of fact and

reflects an application of the correct rule of law will not be

overturned.       113 Hawai‘i at 351, 152 P.3d at 523.         However, when

a conclusion of law presents mixed questions of fact and law, we

review it under the clearly erroneous standard because the

court’s conclusions are dependent on the facts and circumstances

of each individual case.          113 Hawai‘i at 351, 152 P.3d at 523.

Additionally, in reviewing a trial court’s decision, that

court’s label of a finding of fact or conclusion of law is not

determinative of the standard of review.             Crosby v. State Dep’t

of Budget & Fin., 76 Hawaiʻi 332, 340, 876 P.2d 1300, 1308

(1994).

                                IV.   Discussion

A.     Gordon’s 42 U.S.C. § 1983 Claim

       In establishing a civil action for deprivation of rights,

42 U.S.C. § 1983 provides, in relevant part, as follows:

              Every person who, under color of any statute, ordinance,
              regulation, custom, or usage, of any State or Territory or
              the District of Columbia, subjects, or causes to be
              subjected, any citizen of the United States or other person
              within the jurisdiction thereof to the deprivation of any
              rights, privileges, or immunities secured by the
              Constitution and laws, shall be liable to the party injured
              in an action at law, suit in equity, or other proper
              proceeding for redress. . . .



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42 U.S.C. § 1983 (1996).

       Gordon’s 42 U.S.C. 1983 claim arises from his assertion

that the conditions of his pretrial detainment, more than nine

months in what amounted to solitary confinement, constituted

punishment in violation of his due process rights under the

Fourteenth Amendment of the United States Constitution.14                   [SC

DOC 1:7]      “To make out a cause of action under section 1983,

plaintiffs must plead that (1) the defendants acting under color

of state law (2) deprived plaintiffs of rights secured by the

Constitution or federal statutes.”            Gibson v. United States, 781

F.2d 1334, 1338 (9th Cir. 1986) (citation omitted).               A defendant

acts “under color of state law” when the defendant exercises

power “possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state

law.”      United States v. Classic, 313 U.S. 299, 326 (1941)

(citations omitted).         The Defendants have never disputed that

Cho, a DPS correctional supervisor, acted under color of state

law when she and the Committee rendered their custody decision.




14
      Gordon’s Amended Complaint asserted that the Defendants violated his
due process rights under the Hawai‘i State Constitution as well. However, 42
U.S.C. § 1983 claims can only arise under federal laws and the federal
constitution. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (“It is
for violations of such constitutional and statutory rights that 42 U.S.C. §
1983 authorizes redress; that section is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere conferred by
those parts of the United States Constitution and federal statutes that it
describes.”).


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Rather, this case turns on whether Gordon proved that Cho

violated his rights under federal law.15

       Under the due process clause of the Fourteenth Amendment to

the United States Constitution, “a detainee may not be punished

prior to an adjudication of guilt in accordance with due process

of law.”16      Bell, 441 U.S. at 536.       “A person lawfully committed

to pretrial detention has not been adjudged guilty of any

crime,” and therefore while “the Government concededly may

detain him to ensure his presence at trial and may subject him

to the restrictions and conditions of the detention facility,”

the government may only do so if those conditions of confinement

“do not amount to punishment, or otherwise violate the

Constitution.”17       441 U.S. at 536-37.


15
      Although Gordon’s Application does not explicitly restrict his 42
U.S.C. § 1983 claim to Cho, such actions are available against government
officials in their individual capacity only. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and §
1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”). Furthermore, it appears Gordon’s claims against Jodie F.
Maesaka-Hirata involve only state law negligent supervision and training
theories, which Gordon has not pursued on certiorari.
16
      Bell addressed conditions at a federal detention facility, and
therefore rested on the due process clause of the Fifth Amendment. 441 U.S.
at 530. However, the Bell court noted that when states seek to impose
punishment without an adjudication of guilt, “the pertinent constitutional
guarantee is the Due Process Clause of the Fourteenth Amendment.” Bell, 441
U.S. at 535 n.16 (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)).
17
      Pretrial detainees may be punished for violating prison rules if they
are afforded due process for those violations. See, e.g., Mitchell v.
Dupnik, 75 F.3d 517, 524 (9th Cir. 1996) (opining that Bell recognized prison
officials’ need to preserve “internal order and discipline,” and holding
“pretrial detainees may be subjected to disciplinary segregation only with a
due process hearing to determine whether they have in fact violated any
rule.”). What Bell makes clear is that prison officials cannot, even
                                                              (continued. . .)

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     “Not every disability imposed during pretrial detention

amounts to ‘punishment’ in the constitutional sense,” and

indeed, pretrial detainees are to expect some lawful curtailment

of their liberties.       See Bell, 441 U.S. at 537 (“[T]he fact that

. . . detention interferes with the detainee’s understandable

desire to live . . . with as little restraint as possible during

confinement does not convert the conditions or restrictions of

detention into punishment.”).         Restrictions “that are reasonably

related to the institution’s interest in maintaining jail

security do not, without more, constitute unconstitutional

punishment, even if they are discomforting and are restrictions

that the detainee would not have experienced had he been

released while awaiting trial.”         441 U.S. at 540.18

     Courts must therefore decide whether the condition of

confinement “is imposed for the purpose of punishment or whether

it is but an incident of some other legitimate governmental

(. . . continued)
unintentionally, punish detainees for the crimes for which they were arrested
until there has been “an adjudication of guilt in accordance with due process
of law” — in other words, a conviction. 441 U.S. at 535; accord Sandin v.
Conner, 515 U.S. 472, 484 (1995) (characterizing Bell as expressing “concern
that a State would attempt to punish a detainee for the crime for which he
was indicted via preconviction holding conditions”).
18
      Bell, a case challenging the constitutionality of conditions of
confinement in a federally operated short-term custodial facility, held that
“double-bunking” of inmates; a rule prohibiting inmates from receiving
hardback books unless mailed directly from a publisher, bookstore, or book
club; a rule prohibiting inmates from receiving packages of food or personal
property except for one package at Christmas; a rule prohibiting inmates from
observing unannounced room inspections; and visual body cavity strip searches
after every contact visit with a person from outside the institution, did not
constitute unconstitutional punishment of pretrial detainees. 441 U.S at
541-42, 548-49, 553, 555, 558, 560-61.


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purpose.”    441 U.S. at 538 (citation omitted).         The Bell court

elaborated on this standard:

            Absent a showing of an expressed intent to punish on the
            part of detention facility officials, that determination
            generally will turn on “whether an alternative purpose to
            which [the restriction] may rationally be connected is
            assignable for it, and whether it appears excessive in
            relation to the alternative purpose assigned [to it].”
            Thus, if a particular condition or restriction of pretrial
            detention is reasonably related to a legitimate
            governmental objective, it does not, without more, amount
            to “punishment.” Conversely, if a restriction or condition
            is not reasonably related to a legitimate goal — if it is
            arbitrary or purposeless — a court permissibly may infer
            that the purpose of the governmental action is punishment
            that may not constitutionally be inflicted upon detainees
            qua detainees.

441 U.S. at 538-39 (citations and footnotes omitted).             Thus,

under Bell, a pretrial detainee’s treatment amounts to

punishment when:     (1) there is “a showing of an expressed intent

to punish on the part of detention facility officials;” (2) the

condition or restriction is not “reasonably related to a

legitimate goal;” or (3) the condition or restriction is

“excessive in relation to the alternative purpose assigned to

it.”    441 U.S. at 538-39.

       Courts must be mindful that a pretrial punishment claim

triggers due process inquiries that “spring from constitutional

requirements and . . . judicial answers to them must reflect

that fact rather than a court’s idea of how best to operate a

detention facility.”      441 U.S. at 539.      Because prison

administration is difficult and its problems are not readily

ascertained or solved by the judiciary, “[p]rison administrators


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. . . should be accorded wide-ranging deference in the adoption

and execution of policies and practices that in their judgment

are needed to preserve internal order and discipline and

maintain institutional security.”         441 U.S. at 547 (citations

omitted).

    The deference owed to prison officials is not unlimited,

however, and must yield to constitutional principles.             See Brown

v. Plata, 563 U.S. 493, 511 (2011) (“Courts may not allow

constitutional violations to continue simply because a remedy

would involve intrusion into the realm of prison

administration.”) (citation omitted); accord Wolff, 418 U.S. at

555-56 (“There is no iron curtain drawn between the Constitution

and the prisons of this country.”).         Courts should defer to the

expert judgment of prison officials unless there is “substantial

evidence in the record to indicate that the officials have

exaggerated their response to” their institutional order,

discipline, and security considerations.          Bell, 441 U.S. at 548

(quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

    Because Gordon argues all three parts of the Bell standard,

we address each part in turn.

    1.      The circuit court did not err by concluding that
            Gordon’s treatment was not the result of Cho’s express
            intent to punish him.

    Gordon asserts he demonstrated the Defendants’ “expressed

intent to punish” him because he showed that when they

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classified him, they emphasized his criminal history, pending

charges, and “failure to ‘profit’ from prior law enforcement

contacts.”     Their focus on these factors, he argues, makes it

“apparent that DPS officials intended for [Gordon’s] solitary

confinement to serve as retribution and deterrence, which the

United States Supreme Court has recognized as ‘the traditional

aims of punishment[.]’”

       Gordon’s only remaining 42 U.S.C. § 1983 claim is against

Cho.    What the other State employees may have intended is not at

issue on certiorari.       Although Bell did not explain the term

“expressed intent,” something is “express[ed]” when it is

“[c]learly and unmistakably communicated” or “stated with

directness and clarity.”        Black’s Law Dictionary 701 (10th ed.

2014).    The circuit court not only found the Defendants had no

expressed intent to punish Gordon, but that Cho, specifically,

“testified credibly that she has never had any malice or ill-

will towards [Gordon] or would knowingly violate [Gordon’s]

constitutional rights and [Gordon] produced no evidence to the

contrary.”     These findings of fact, which are based upon the

circuit court’s credibility determinations, are not clearly

erroneous.     See Tamashiro v. Control Specialist, Inc., 97 Hawaiʻi

86, 92, 34 P.3d 16, 22 (2001) (“[T]he credibility of witnesses

and the weight to be given their testimony are within the



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province of the trier of fact and, generally, will not be

disturbed on appeal.”).

       The circuit court did not err in concluding Cho did not

express intent to punish Gordon.             Indeed, in addition to the

circuit court’s finding with respect to Cho, the testimony of

multiple witnesses indicates the DPS personnel handling Gordon’s

case believed they were following established procedure, and

thought maximum security custody was not punishment for pretrial

detainees with Gordon’s history.19            For the reasons below,

however, we nevertheless hold that the circuit court clearly

erred in concluding the restrictions and conditions of Gordon’s

detainment did not amount to punishment.

       2.     The circuit court erred by concluding that Gordon’s
              treatment was reasonably related to a legitimate
              government purpose.

       In the absence of expressed intent to punish, “a court must

look to see if a particular restriction or condition, which may


19
      Pula calculated Gordon’s initial custody level using only a standard
DPS form and the information she had at the time. Chun denied Gordon’s case
exception because, based on her experience, she thought it reasonable to
place pretrial detainees in maximum security for the reasons Cho and the
Committee considered. Likewise, in reviewing Gordon’s Exception Case Form,
Johnson believed Chun’s statements and therefore thought it was reasonable to
keep Gordon in maximum custody.
      These subjective beliefs, however, are not relevant to consideration of
the objective parts of the Bell test discussed below. See Bell, 441 U.S. at
538-39 (providing two ways to identify punishment in the absence of expressed
intent to punish); see also Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473-74
(2015) (opining that “proof of intent (or motive) to punish” is not required
to prevail on a Bell punishment claim, and “a pretrial detainee can prevail
by providing only objective evidence” that his or her treatment lacked
rational relationship or was excessive in relation to a legitimate
governmental purpose).


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on its face appear to be punishment, is instead but an incident

of a legitimate nonpunitive governmental objective.”               Bell, 441

U.S. at 539 n.20.        “[I]f a particular condition or restriction

of pretrial detention is reasonably related to a legitimate

governmental objective, it does not, without more, amount to

‘punishment.’”        441 U.S. at 539.       However, “if a condition or

restriction is arbitrary or purposeless, a court may permissibly

infer that the purpose of the government action is

punishment[.]”        Bell, 441 U.S. at 539.       Some legitimate

interests that detention facility officials may seek to further

include ensuring the detainee’s presence at trial, maintaining

order and security at the institution, and preventing contraband

from reaching detainees.          441 U.S. at 540.     “Retribution and

deterrence,” the Bell court made clear, “are not legitimate

nonpunitive governmental objectives.”            441 U.S. at 539 n.20.

       Gordon disputes the existence of a legitimate reason for

his classification and segregation, and argues that his

treatment by Cho violated his rights because it was “arbitrary

and capricious.”20        The circuit court concluded “the Defendants’


20
      Gordon cites Coulter v. State, 116 Hawai‘i 181, 185, 172 P.3d 493, 497
(2007), for the proposition that “[g]overnment action may . . . be found to
be arbitrary and capricious where an agency fails to follow the rules it sets
out for itself.” Coulter had to do with the Hawai‘i Paroling Authority’s
(“HPA”) failure to follow its own minimum term guidelines, which it was
required by statute to adopt and then obey. 116 Hawai‘i at 185, 172 P.3d at
497.
      Because we decided the HPA violated its own guidelines, we explicitly
declined to reach the constitutional due process question. 116 Hawai‘i at
                                                              (continued. . .)

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conditions imposed on individuals categorized as maximum custody

and, experienced by [Gordon], [were] reasonably related to a

legitimate government objective which is to maintain a safe and

secure correctional facility.”         The ICA agreed, opining the

Defendants’ reasons for keeping him in solitary confinement were

“clearly articulated” and related to prison security and safety.

Gordon, mem. op. at 11.

      Upon our review of the circuit court’s conclusion that the

reasons Cho gave as Committee chair for continuing Gordon in

maximum custody or solitary confinement were reasonably related

to a legitimate government purpose, we are left with a definite

and firm conviction that a mistake has been made.             We conclude

Cho’s treatment of Gordon was not reasonably related to a

legitimate, nonpunitive government interest, and therefore was

punishment.

      Among other things, Gordon asserts his treatment was

arbitrary because his initial custody level was based on

inaccurate information, which Cho failed to correct, and also

because Cho failed to follow the dictates of the ACLU Memo.

With respect to the ACLU Memo, the circuit court concluded that


(. . . continued)
185, 172 P.3d at 497. However, we did note “[t]he proposition that the
government must follow the rules it sets out for itself is not
controversial,” and cited other authority holding that “[e]ven if an agency
is not required to adopt a rule, once it has done so it must follow what it
adopted.”   116 Hawai‘i at 185, 172 P.3d at 497 (citing Peek v. Thompson, 980
P.2d 178, 181 (Or. App. 1999)).


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“by submitting the Exception Form, . . . Cho did comply with the

guidelines of the [ACLU] Max Custody Memo.”              The ACLU Memo,

however, does not characterize itself as a “guideline” and does

not address Exception Case Forms or approval by the

Classification Office; instead, it plainly instructs OCCC

Holding Unit staff to (1) house all new inmates classified as

maximum custody in the Holding Unit for thirty days; and (2)

reduce the inmate’s custody status to medium and return that

inmate to the OCCC general population “[i]f the inmate remains

misconduct free and is not a management problem[.]”

       Cho’s testimony at trial was that she actually did not know

the ACLU Memo existed when the Committee met to review Gordon’s

custody status, although she “was aware that after 30 days [the

Committee] could review the inmate.”            It is unclear why Cho was

unaware of the ACLU Memo, or whether the procedures stated

within it had been officially modified or abandoned.               But,

whether or not the ACLU Memo was a guideline or a binding

directive, Cho’s treatment of Gordon was the result of

generalized assumptions of dangerousness and flight risk not

supported by the facts.21


21
      The record reveals the Defendants employed at least four different
methods of evaluating Gordon’s classification: Pula set Gordon’s initial
classification using the Initial Custody Instrument, Cho and the Committee
performed a second evaluation, a third custody review by Chun was reviewed by
Johnson, and Gordon’s final evaluation was done by Lortz, using the Custody
Review Instrument.
                                                              (continued. . .)

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       Cho and the Committee’s review of Gordon’s custody status

was subjective:        they were permitted to consider any factor

deemed relevant, with apparently unlimited discretion in

weighing those factors.22         To justify Gordon’s continued

placement in maximum security custody, Cho and the Committee

based their September 22, 2010 decision on factors that were not

reasonably related to a legitimate government purpose.                They

asserted Gordon was a “high-risk” and “high flight risk”

detainee based on his pending charges, prior convictions,

“discharge and failure to comply with 2 residential drug

treatment programs while on probation,” non-compliance with

reporting to his probation officer when leaving Hawai‘i,

extradition back to Hawai‘i while on probation, and the bail

amount for his pending charges.           These facts, however, were not

relevant to achieving the Defendants’ “legitimate government

purposes” of ensuring that Gordon appeared for trial and did not

disrupt institutional order and security in the meantime.

       Cho did not identify what kind of “high risk” Gordon

presented.       There is nothing in the record that identifies the

kind of conduct she feared Gordon would engage in while


(. . . continued)
      We address only Cho’s conduct because she is the sole defendant against
whom Gordon’s 42 U.S.C. § 1983 claim is pursued.
22
      It is unclear whether DPS policy or guidelines with respect to
classification review existed at the time of trial. No written policies,
aside from the ACLU emo, were offered as evidence.


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detained.    Although Gordon did leave Hawai‘i while on probation,

resulting in his extradition, there was no explanation as to how

absconding while on probation relates to escape from a secure

jail facility, such that Gordon would automatically be a “high

flight risk.”    Furthermore, despite six prior incarcerations,

there was no evidence that Gordon had committed any

institutional misconduct, leaving little in the record to

support Cho’s belief that Gordon was a “high risk” inmate.

Indeed, there is no evidence in the record that Cho and the

Committee knew the factual bases for Gordon’s prior convictions

or pending charges.

    Defendants never explained how Cho and the Committee’s

cited facts were predictors for disciplinary or management

problems in custody.      It is obvious that solitary confinement

would effectively detain Gordon and guarantee his appearance at

trial, but, under the circumstances, solitary confinement was

not reasonably related to any legitimate, nonpunitive purpose.

In the absence of a link between Gordon’s treatment and the

resolution of any real management or security problem, Gordon’s

conditions of confinement only achieved retribution and

deterrence — “the traditional aims of punishment” — which “are

not legitimate nonpunitive governmental objectives.”            Bell, 441

U.S. at 539 n.20 (citing Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168 (1963)); accord Demery v. Arpaio, 378 F.3d 1020, 1030-

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31 (9th Cir. 2004) (“[D]eterrence does not qualify as a

nonpunitive goal with regard to pretrial detainees.”) (citation

omitted).

       We acknowledge that courts should ordinarily defer to

prison administrators’ knowledge and expertise.              Bell, 441 U.S.

at 547-48.       On the facts in this record, however, it is apparent

that Cho and the Committee’s response to the threat Gordon

allegedly posed was exaggerated.             See Bell, 441 U.S. at 548

(encouraging deference to prison officials, unless substantial

evidence in the record suggests their response to an

institutional problem was exaggerated).             Gordon’s maximum

security status meant that he was alone in a cell for twenty-

three hours per day with forty-five to sixty minutes of

recreational time only five days per week, no access to a shower

on the weekends, only non-contact visits with his attorney, and

strip searches every day and each time he returned to his cell.23

These conditions were imposed upon Gordon because Cho had non-

specific concerns about his future behavior, based on his past

conduct.      Cf. Bell, 441 U.S. at 559 (upholding the use of visual

inspection of body cavities where officials were specifically
23
      The circuit court found the Defendants “presented evidence that all MAX
custody inmates, whether pretrial or not, [were] treated under the same
conditions as” Gordon, but that the Defendants “also presented evidence that
[Gordon] was afforded additional benefits such as personal calls that were
not given to other inmates on the same floor.” The fact that Gordon received
additional privileges does not demonstrate that he was not punished, but
rather, could show that he was punished less than others.



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concerned about concealment of drugs and contraband, and there

had been at least one instance of attempted trafficking of

contraband).

       Because Cho relied on factors that were not relevant to

assessing Gordon’s present security needs, and focused on his

past conduct without a logical connection to present or future

threat, the circuit court and ICA clearly erred by concluding

Gordon’s      placement in solitary confinement was reasonably

related to a legitimate government purpose.24             A pretrial

detainee can present serious and persistent threats to

institutional safety, security, and order, such that maximum

security conditions may be necessary to restrain them.                See

Bell, 441 U.S. at 546 n.28 (“There is no basis for concluding

that pretrial detainees pose any lesser security risk than

convicted inmates.        Indeed, it may be that in certain

circumstances they present a greater risk to jail security and

order.”).       However, the record in this case does not support the

Defendants’ assertions that Gordon presented such a threat.

24
      The record shows Chun relied on similar reasoning in denying Gordon’s
exception case form, and Johnson accepted Chun’s reasoning when reviewing
that decision. Chun and Johnson, however, were never defendants in this
case.
      We note that other aspects of Gordon’s treatment may have been
inconsistent with achieving the Defendants’ legitimate nonpunitive goals.
For example, the Initial Custody Instrument counted Gordon’s misdemeanor and
petty misdemeanor convictions not once, but twice: first as part of Gordon’s
history of prior convictions, and again as part of his “history of assaultive
behavior.” In contrast, the Custody Review Instrument counted only felonies
within the last ten years, and focused on Gordon’s institutional history. It
is unclear why these evaluation methods differed to such an extent.


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Thus, we conclude the circuit court clearly erred by concluding

Gordon’s treatment by Cho was reasonably related to a legitimate

governmental objective, and therefore was not punishment.

    3.     The circuit court clearly erred by concluding Gordon’s
           treatment was not excessive in relation to a
           legitimate government purpose.

    Under Bell, "the determination whether [pretrial]

restrictions and practices constitute punishment in the

constitutional sense depends on whether they are rationally

related to a legitimate nonpunitive governmental purpose and

whether they appear excessive in relation to that purpose."               441

U.S. at 561.    Therefore, even if a pretrial detainee’s treatment

“is reasonably related to a legitimate governmental objective,”

a court may infer that the treatment is punishment if “it

appears excessive in relation to the alternative purpose

assigned [to it].”     Bell, 441 U.S. at 538-39 (citations and

footnotes omitted).      For example, although “loading a detainee

with chains and shackles and throwing him in a dungeon may

ensure his presence at trial and preserve the security of the

institution,” those harsh conditions would support a conclusion

that they were imposed to punish the detainee, in light of “so

many alternative and less harsh methods” that could achieve the

same objectives.     Bell, 441 U.S. at 539 n.20.

    Gordon asserts that even if there was a legitimate reason

for his classification and segregation, the conditions of his

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confinement were excessive in relation to any alternative

purpose assigned to it.      Bell, 441 U.S. at 538.       In support of

his argument, he emphasizes that he was held in highly

restrictive conditions for more than nine months despite the

fact that he had shown “exemplary inmate behavior.”            The circuit

court concluded “there was no evidence produced by [Gordon] to

prove by a preponderance of the evidence that the conditions of

maximum custody imposed by Defendants to maintain a safe and

secure correctional facility were excessive to accomplish such

objective[.]”    The ICA agreed.      Gordon, mem. op. at 11.

    Gordon was retained in solitary confinement because Cho and

the Committee suspected that he posed a “high risk” or suspected

he would engage in “high flight risk” behavior.           No witness

testified to any incidents of misbehavior by Gordon during the

incarceration period at issue, or during any of his prior

incarcerations.     No witness testified to any specific threats to

institutional safety or order by Gordon.          Even after spending

thirty days in the OCCC Holding Unit with no incidents of

misconduct, Cho and the Committee decided Gordon was generally a

“high risk” and “high flight risk” detainee based on his

criminal history and current charges, among other things.                Any

justification for maximum security conditions should have

dissipated after the thirty-day holding period, during which

Gordon failed to exhibit the problematic behavior his past

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convictions and pending charges supposedly indicated.

       The record in this case shows that Cho imposed serious

restraints on a pretrial detainee who did not demonstrate a

serious threat to institutional safety or order.               While solitary

confinement was undoubtedly effective at ensuring Gordon’s

appearance at trial, like the “chains and shackles” of Bell’s

hypothetical dungeon, the existence of less harsh methods of

achieving the same security goals supports the inference that

Gordon’s treatment was punishment.            See Bell, 441 U.S. at 539

n.20 (opining that harsh conditions, “employed to achieve

objectives that could be accomplished in so many alternative and

less harsh methods,” can support the conclusion that the

conditions were imposed to inflict punishment).25

       We emphasize that Gordon’s maximum security conditions were

harsh — solitary confinement has long been recognized as an

“infamous punishment” used to “mark [prisoners] as examples of

the just punishment of the worst crimes of the human race.”                  In

re Medley, 134 U.S. 160, 168-170 (1890).             This point has been

effectively summarized by other courts.             See, e.g., Davis v.


25
      In light of the deference accorded to prison administrators in the
“adoption and execution of policies and practices . . . needed to preserve
internal order and discipline and to maintain institutional security,” Bell,
441 U.S. at 521, the availability of alternatives and less harsh methods does
not end a reviewing court’s inquiry as to whether a particular pretrial
restriction constitutes punishment. Rather, the existence of such
alternatives may indicate that the restriction imposed is excessive in
relation to the legitimate governmental purpose of maintaining institutional
safety and security.


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Ayala, 135 S.Ct. 2187, 2209-11 (2015) (Kennedy, J., concurring)

(summarizing the history and effects of long-term solitary

confinement).    We also note that scientific research now

suggests even a few days in solitary confinement can have

negative effects on inmates’ mental health, even in inmates not

previously diagnosed with mental illness.          See, e.g., Williams

v. Sec’y Pa. Dept. of Corr., 848 F.3d 549, 562, 566-69 (3d Cir.

2017), cert. denied 138 S.Ct. 357 (U.S. Oct. 16, 2017) (Nos. 17-

53, 17-5116) (summarizing scientific studies on the effects of

solitary confinement).      We conclude that, in light of the lack

of articulable concerns and the harshness of Gordon’s

confinement, the circuit court clearly erred by concluding

Gordon’s treatment by Cho was not excessive in relation to a

legitimate nonpunitive goal.

    Because we conclude that Gordon has established a

constitutional violation for his 42 U.S.C. § 1983 claim against

Cho, we must now address whether Cho is entitled to qualified

immunity.

    4.      Cho is not liable to Gordon under 42 U.S.C. § 1983 due
            to qualified immunity under federal law.

    The circuit court identified the federal qualified immunity

standard as follows:

                  12.   Government officials who perform discretionary
            functions have qualified immunity from liability for civil
            damages when “their conduct does not violate clearly
            established statutory or constitutional rights of which a
            reasonable person would have known.” Johnson v. Fankell,


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              520 U.S. 911, 914-15 [(1997)]; Gabbert v. Conn, 131 F.3d
              793, 799 (9th Cir. 1997).
                    13.   The qualified immunity inquiry is two-pronged.
              The Court must ask whether the “conduct violated a
              constitutional right” and whether “the right was clearly
              established” at the time of the alleged misconduct. The
              Court may conduct this two-pronged inquiry in any order.
              Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. Haw. 2011).

The circuit court concluded Cho was entitled to qualified

immunity “because she did not knowingly violate [Gordon’s]

Constitutional rights[.]”          In so concluding, the circuit court

clearly erred.

       As the circuit court initially correctly noted, the

“clearly established right” portion of the two-part qualified

immunity standard employs a reasonableness test.               Johnson, 520

U.S. at 914-15 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).      To be more specific, federal courts employ a

“reasonable official” test:          a right is clearly established

“when, at the time of the challenged conduct, [t]he contours of

[a] right [are] sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.”       Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))

(emphasis added).        This standard “do[es] not require a case

directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.”26               al-Kidd,


26
      The Ninth Circuit Court of Appeals previously characterized the clearly
established law standard as requiring “fair warning,” meaning that state
                                                              (continued. . .)

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563 U.S. at 741 (emphasis added); accord Reichle v. Howards, 566

U.S. 658 (2012).

         The United States Supreme Court has said that

“[q]ualified immunity gives government officials breathing room

to make reasonable but mistaken judgments about open legal

questions.     When properly applied, it protects ‘all but the

plainly incompetent or those who knowingly violate the law.’”

al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)) (emphasis added).          However, an official’s

subjective mental state is irrelevant to the qualified immunity

inquiry:    rather, a court must evaluate the “objective legal

reasonableness” of the official’s conduct “in light of the legal

rules that were ‘clearly established’ at the time[.]”              Anderson,

483 U.S. at 639.

     Thus, although the Court stated that qualified immunity

does not protect those who “knowingly” violate the law, the

circuit court erred when it concluded Cho was entitled to

qualified immunity because she did not knowingly violate



(. . . continued)
officials are not entitled to qualified immunity “where the contours of the
right have been defined with sufficient specificity that a state official had
fair warning that [his or her] conduct deprived a victim of his [or her]
rights[.]” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003)
(citations omitted). However, it appears the United States Supreme Court now
requires greater specificity with respect to whether the law was “clearly
established.” See District of Columbia v. Wesby, 138 S.Ct. 577, 592 (2018)
(“It is not enough that the rule is suggested by then-existing precedent.
The precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.”)


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Gordon’s rights.     In other words, although Cho would not be

entitled to qualified immunity if she knowingly violated

Gordon’s rights, she is not entitled to qualified immunity just

because she did not knowingly do so.         Rather, the issue is

whether Gordon’s rights were sufficiently clear in September

2010 so that every reasonable official in Cho’s position would

have understood that Gordon’s constitutional rights were being

violated; the test is objective, not subjective.

    Whether a right was clearly established under federal law

at the time the defendant acted is a “purely legal” question.

Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985).            That

question of law is reviewable de novo on appeal.            Elder v.

Holloway, 510 U.S. 510, 516 (1994).         Thus, even if the circuit

court did not apply the proper standard, whether Gordon’s rights

were clearly established at the time Cho and the Committee made

their maximum custody/solitary confinement decision is a legal

question that we review de novo.

    Upon a careful review, with respect to the first prong of

the qualified immunity inquiry, we have concluded for the

reasons stated in Part IV, Section A, subsections 2 and 3 above,

that Cho’s conduct violated Gordon’s Fourteenth Amendment due

process right to be free from pretrial punishment.            With respect

to the second prong of the inquiry, however, we conclude that

Cho was entitled to qualified immunity because Gordon’s rights

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were not sufficiently clear at the time Cho acted in 2010 so

that every reasonable official in Cho’s position would have

understood that Gordon’s constitutional rights were being

violated.

    In 1979, Bell made clear that pretrial detainees may not be

punished for the crimes for which they were arrested before an

adjudication of their guilt.       441 U.S. at 535.      Under Bell,

courts may infer that conditions of confinement are punishment

if they are the result of an expressed intent to punish, if they

are not rationally related to a legitimate alternative purpose,

or if they are excessive in relation to that legitimate

alternative purpose.      441 U.S. at 538-39.      In evaluating an

official’s claim of qualified immunity, however, courts should

not “define clearly established law at a high level of

generality.”    al-Kidd, 563 U.S. at 742.        Instead, the clearly

established law inquiry “must be undertaken in light of the

specific context of the case, not as a broad general

proposition.”    Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam) (internal citation omitted).         Turning to the specific

context of this case, we conclude that in 2010, the law was not

sufficiently clear so that every reasonable official in Cho’s

position would have understood that keeping Gordon in maximum

security custody, based on the criteria applied, would amount to

punishment in violation of his due process rights.

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    In Bell, the conditions challenged were imposed on all

pretrial detainees, and prison officials’ explanations of the

necessity of those conditions were therefore based on broad,

facility-wide concerns.      441 U.S. at 541-58.       In Gordon’s case,

prison officials imposed highly restrictive conditions on him as

an individual and, at the time Cho acted, federal law provided

little guidance to prison officials with respect to making

security assessments of individual detainees.           In 2010, it was

at least clear that pretrial detainees may not be placed in

highly restrictive conditions simply because they are pretrial

detainees.    See Lock v. Jenkins, 641 F.2d 488, 494 (7th Cir.

1981) (concluding that placing all pretrial detainees in

“conditions more burdensome than those imposed on the general

population of convicted felons,” regardless of their individual

characteristics, “amount[ed] to punishment under Bell”).

However, courts largely deferred to officials’ expertise in

prison management.     See, e.g., Block v. Rutherford, 468 U.S. 576

(1984) (upholding a ban on contact visits for pretrial detainees

because “responsible, experienced administrators have

determined, in their sound discretion, that such visits will

jeopardize the security of the facility.”).           Because the law on

what conditions amount to punishment was not sufficiently

developed when Cho acted in 2010, we cannot say that every

reasonable official in Cho’s position would have known that

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keeping Gordon in solitary confinement, based on the reasons

provided, was a violation of his constitutional due process

rights.

     To reiterate, Cho and the Committee based their September

22, 2010 decision to retain Gordon in solitary confinement based

on their assessment that Gordon was a “high-risk” and “high

flight risk” detainee due to his pending charges, prior

convictions, “discharge and failure to comply with 2 residential

drug treatment programs while on probation,” non-compliance with

reporting to his probation officer when leaving Hawai‘i,

extradition back to Hawai‘i while on probation, and the bail

amount for his pending charges.

     At the time Cho acted in September of 2010, even though

some federal district courts had previously found that solitary

confinement was punishment when it was based only on pending

charges or vague allegations of dangerousness, those cases are

distinguishable.     United States v. Lopez, 327 F. Supp. 2d 138,

142-43 (D.P.R. 2004), found that a detainee’s automatic

placement in administrative detention because he faced the death

penalty excessive in relation to prison officials’ legitimate

purposes.    United States v. Gotti, 755 F. Supp. 1159, 1164-65

(E.D.N.Y. 1991), found detainees’ placement in administrative

detention excessive in relation to prison officials’ security

concerns where the only justification proffered was their

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pending charges, with no evidence that the detainees posed a

serious threat to other inmates or the institution.            Boudin v.

Thomas, 533 F. Supp. 786, 791-92 (S.D.N.Y. 1982), ruled that

placing a pretrial detainee in administrative detention because

of “[t]he nature of her crime [and] her . . . unsubstantiated

affiliation with a terrorist organization” was excessive in

relation to the prison warden’s legitimate purposes.            In

Gordon’s case, additional factors to those cited in these cases

were given as reasons by Cho and the Committee for keeping

Gordon in solitary confinement.        In addition, although “the

views of the federal courts of appeals do not bind [a state

supreme court] when it decides a federal constitutional

question[,]”    Johnson v. Williams, 568 U.S. 289, 305 (2013),

they can be persuasive.      In this regard, the Seventh Circuit

Court of Appeals held in Rapier v. Harris, 172 F.3d 999 (7th

Cir. 1999), a 42 U.S.C. § 1983 case, that even if keeping a

pretrial detainee in administrative segregation constituted

prohibited punishment, defendants enjoyed qualified immunity

because, at the time the defendants acted, the law was not

sufficiently clear to apprise them that maintaining the

defendant in segregation was not sufficiently related to the

legitimate government objective of maintaining good order and

discipline within the facility.        172 F.3d at 1006.      In addition,

as late as 2017, the Second Circuit held in Almighty Supreme

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Born Allah v. Milling, 876 F.3d 48 (2d Cir. 2017), that “the

general principle articulated in [Bell] does not clearly

establish that a substantive due process violation would result

from [the pretrial inmate’s] placement in Administrative

Segregation based solely on his prior assignment to (and failure

to complete) that [Administrative Segregation] program [during a

previous incarceration].”          876 F.3d at 59.     Holding that the

defendants were entitled to qualified immunity, the Second

Circuit noted, “[n]o prior decision of the Supreme Court or of

this Court (or, so far as we are aware, of any other court) has

assessed the constitutionality of that particular practice.”

876 F.3d at 59-60.        Likewise, we see no cases that assessed the

constitutionality of the criteria evaluated by Cho and the

Committee in reaching a decision that Gordon should be continued

in solitary confinement.

       Gordon cited as supplemental authority four federal cases

that are distinguishable from this case and do not demonstrate,

at the time of Cho and the Committee’s decision to retain Gordon

in pretrial solitary confinement, a violation of a “clearly

established” constitutional right of which every reasonable

official would have known of at the time the official acted.

Proctor v. LeClaire, 846 F.3d 597 (2d Cir. 2017), involved a

convicted defendant, not a pretrial detainee.27              Gordon also
27
       We note, however, that the ABA Criminal Justice Standards and federal
                                                               (continued. . .)

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cited to Almighty, discussed in the paragraph above, which

actually held that qualified immunity applied.28              Likewise,

Williams v. Secretary Pennsylvania Department of Corrections,

848 F.3d 549, cert. denied 138 S.Ct. 357 (U.S. Oct. 16, 2017)

(Nos. 17-53, 17-5116), prospectively held that inmates on death

row whose death sentences have been vacated have a due process

right to avoid continued placement in solitary confinement

absent meaningful protections discussed therein, but also found

qualified immunity applied as to the prison official defendants

in that case.       Finally, the last supplemental authority cited by

Gordon, V.W. by and through Williams v. Conway, 236 F. Supp. 3d

554 (N.D.N.Y. 2017), ruled that summary judgment had improperly

been granted in favor of a school district in a purported class

action brought on behalf of juveniles subjected to solitary

confinement, but had yet to address actual liability or the

possible applicability of qualified immunity, if liability was

found.

       Thus, like in Almighty, we see no cases that assessed the

combination of criteria evaluated by Cho and the Committee in

reaching their decision that Gordon may be continued in solitary

(. . . continued)
prison policy factors we discuss in Section IV(C) below for assessing when
solitary confinement may be used also apply to convicted defendants.
28
      Gordon also cited to that case when the April 25, 2018 petition for
certiorari was pending before the United States Supreme Court, but the
certiorari petition was dismissed by the Court on September 4, 2018. See
Docket No. 15-8654 in the United States Supreme Court.


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confinement.       The circuit court’s conclusion that Cho was

entitled to qualified immunity because she did not knowingly

violate Gordon’s rights was erroneous because it was based on an

improper standard of law.          However, because whether a right was

clearly established under federal law at the time a defendant

acted is a “purely legal” question reviewable de novo, and

because we conclude that Gordon’s rights were not sufficiently

clear in 2010 that every reasonable official in Cho’s position

would have known that keeping Gordon in solitary confinement

based on the criteria applied violated his constitutional

rights, Cho is nevertheless entitled to qualified immunity.

       This opinion clearly establishes for Hawaiʻi prison

officials, however, that holding a pretrial detainee in solitary

confinement under Gordon’s circumstances violates a pretrial

detainee’s Fourteenth Amendment due process right to be free

from punishment.        With respect to the reasons given by Cho and

the Committee29 to maintain Gordon in maximum security and

solitary confinement, “the nature and seriousness of [a

detainee’s] current charges” may bear some relationship to

institutional order and security if the underlying facts or

nature of the charges correspond to the ABA Criminal Justice

Standards and federal prison policy factors for solitary


29
       Similar reasons were later given by Chun and Johnson.


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confinement discussed in Section IV(C) below, but because

defendants did not know the factual basis for Gordon's pending

charges or explain how his charges could indicate a threat to

institutional order and security, defendants failed to show the

conditions of Gordon's pretrial custody were reasonably related

to any legitimate government purpose on this basis.            “The number

and kind of his prior convictions” and “[h]is extensive criminal

history and numerous periods of incarceration” might have been

reasonably related to a legitimate government purpose to the

extent they included assaultive behavior; however, in Gordon’s

case, he had committed no institutional misconduct during prior

incarcerations.     Likewise, “[h]is failure to comply with two

residential drug treatment programs” might have been reasonably

related to a legitimate government purpose if the failure

related to possible disruption of institutional order and

security; in Gordon’s case, however, no such evidence existed.

In addition, there was no explanation as to how Gordon’s

“[l]eaving the state without permission while on probation” and

“extradition to Hawaii” related to possible escape from OCCC, a

secure facility.     His being “on probation when charged with his

current offense” likewise did not bear on institutional order or

security.    Gordon’s “$1,000,000 bail amount” also did not

directly bear on possible institutional security issues,



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especially in light of the lack of any institutional misconduct

during prior incarcerations.30

       Just as “loading a detainee with chains and shackles and

throwing him in a dungeon may ensure his presence at trial and

preserve the security of the institution,” unless there is a

legitimate government purpose, placement of a pretrial detainee

in solitary confinement can support a conclusion that it was

imposed to punish the detainee, in light of “so many alternative

and less harsh methods” that could achieve the same objectives.

Bell, 441 U.S. at 539 n.20. The ABA Standards and federal prison

policies discussed in Section IV(C) below provide guidelines on

when solitary confinement might be reasonably related to a

legitimate government purpose so as not to violate a pretrial

detainee’s due process rights.

B.     Gordon’s State Law Negligence Claim

       With respect to his negligence claim against Cho,

individually, Gordon’s Application argues Cho was not entitled

to qualified immunity under Towse.            In Towse, we clarified our

state law qualified immunity standard for non-judicial

officials:

                    Our courts have held that a non-judicial governmental
              officer does not enjoy an absolute immunity for his
              tortious acts. . . . [W]hen an official “in exercising his

30
      Cho was not responsible for Gordon’s initial custody evaluation that,
in addition to these factors, also considered his age. See supra, n.5. We
express no opinion at this time whether prison officials can consider age in
evaluating custody classifications.


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              authority is motivated by malice, and not by an otherwise
              proper purpose, . . . he should not escape liability for
              the injuries he causes.”

64 Haw. at 630-31, 647 P.2d at 701-02 (citation omitted).

       The circuit court concluded Gordon did not prove by a

preponderance of the evidence that Cho acted with malice;31

accordingly, Gordon did not meet his burden of proving malice by

clear and convincing evidence.32           See Medeiros v. Kondo, 55 Haw.

499, 504, 522 P.2d 1269, 1272 (1974) (placing “the burden of

adducing clear and convincing proof that [the] defendant was

motivated by malice” on the plaintiff).             The circuit court’s

findings and conclusions with respect to Cho’s qualified

immunity for Gordon’s state law negligence claim are not clearly

erroneous.

C.     Gordon’s State Due Process Claim

       The circuit court did not specifically address Gordon’s

state due process claim under Article I, Section 5 of the Hawai‘i

Constitution, which provides that “[n]o person shall be deprived

of life, liberty or property without due process of law . . . .”

Although the State of Hawai‘i has not waived its sovereign

31
      It does not appear the State raised any arguments based on the State
Tort Liability Act, under which “[t]he State . . . waives its immunity for
liability for the torts of its employees and shall be liable in the same
manner and to the same extent as a private individual under like
circumstances.” Hawaii Revised Statutes (HRS) § 662-2 (2016). We therefore
do not address whether a private individual could be held liable for
negligence in setting the custody status of a pretrial detainee.
32
      All of the circuit court’s findings, “[u]nless otherwise indicated,
. . . have been proven to be probably more true than not true.”


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immunity to suits seeking monetary damages for constitutional

violations, Figueroa v. State, 61 Haw. 369, 383, 604 P.2d 1198,

1206-07 (1979), we address Gordon’s state law due process claim

because of the importance of the constitutional issue at stake

and to provide guidance pursuant to our supervisory powers under

Hawaii Revised Statutes § 602-4 (2016).33

       Like the Fourteenth Amendment of the United States

Constitution, Article I, Section 5 of the Hawai‘i State

Constitution guarantees all persons a right to be free from

punishment prior to an adjudication of guilt in accordance with

due process of law.         Compare Haw. Const. art. I, § 5 (“No person

shall be deprived of life, liberty or property without due

process of law[.]”) with U.S. Const. amend. XIV, § 1 (providing

that no state shall “deprive any person of life, liberty, or

property, without due process of law[.]”).

       We hereby adopt the Bell standard for determining whether

an Article I, Section 5 due process violation has occurred under

the circumstances of this case.           Thus, a court may infer that a

condition or set of restrictions amounts to punishment of a

pretrial detainee when:         (1) there is “a showing of an expressed

33
       Section 602-4 of the Hawaii Revised Statutes provides:

              Superintendence of inferior courts. The supreme court
              shall have the general superintendence of all courts of
              inferior jurisdiction to prevent and correct errors and
              abuses therein where no other remedy is expressly provided
              by law.


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intent to punish on the part of detention facility officials;”

(2) the condition or restriction is not “reasonably related to a

legitimate goal;” or (3) the condition or restriction is

“excessive in relation to the alternative purpose assigned to

it.”       441 U.S. at 538-39.     We note that under our constitution,

however, pretrial detainees may be guaranteed greater due

process protection than convicted prisoners.              Accord State v.

Bayaoa, 66 Haw. 21, 25 n.2, 656 P.2d 1330, 1333 n.2 (1982)

(agreeing with the dissenting Bell justices that, at least in

the context of Fourth Amendment searches, “the rights of persons

not yet convicted of crimes must be more closely scrutinized

than the rights of prisoners.”) (citing Bell, 441 U.S. at 568

(Marshall, J., dissenting); 441 U.S. at 579 (Stevens, J.,

dissenting)).

       We also note that model practices acknowledge solitary

confinement as a legitimate administrative and penological tool,

but reserve its use for particularized and serious problems.

For example, the American Bar Association’s (“ABA”) Criminal

Justice Standards on the Treatment of Prisoners (“ABA

Standards”) generally advise using solitary confinement or

“segregated housing” sparingly or not at all, except to manage

specific concerns.34        ABA, ABA Criminal Justice Standards:


34
      “Segregated housing” is defined as “housing of a prisoner in conditions
characterized by substantial isolation from other prisoners, whether pursuant
                                                              (continued. . .)

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Treatment of Prisoners, Standard 23-2.7(a) (3d ed. 2011).                 Long-

term segregated housing —- segregation that “is expected to

extend or does extend for a period of time exceeding 30 days” —-

may be used to impose discipline for a “very severe disciplinary

infraction, in which safety or security was seriously

threatened,” to curtail “a credible continuing and serious

threat to the security of others or to the prisoner’s own

safety,” or to prevent the spread of “airborne contagion.”                 Id.,

Standards 23-1.0(o), 23-2.7(a)(i-iii).           Further, the ABA

Standards advise that prisoners should not be placed in long-

term segregated housing based on a security risk posed by the

prisoner unless:

            [L]ess restrictive alternatives are unsuitable in light of
            a continuing and serious threat to the security of the
            facility, staff, other prisoners, or the public as a result
            of the prisoner’s:
                  (i)   history of serious violent behavior in
                  correctional facilities;
                  (ii) acts such as escapes or attempted escapes from
                  secure correctional settings;
                  (iii) acts or threats of violence likely to
                  destabilize the institutional environment to such a
                  degree that the order and security of the facility is
                  threatened;
                  (iv)   membership in a security threat group
                  accompanied by a finding based on specific and
                  reliable information that the prisoner either has
                  engaged in dangerous or threatening behavior directed
                  by the group or directs the dangerous or threatening
                  behavior of others; or
                  (v)    incitement or threats to incite group
                  disturbances in a correctional facility.

Id., Standard 23-2.7(b) (emphases added).

(. . . continued)
to disciplinary, administrative, or classification action.”   ABA Standards,
Standard 23-1.0(r).


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       Federal prison policy is in accord with the ABA Standards.

The Bureau of Prisons (“BOP”) requires pretrial detainees to be

held in the least restrictive conditions consistent with their

security needs.        BOP Program Statement 7331.04 on Pretrial

Inmates, § 6 (January 31, 2003).             Pretrial detainees may be held

in a “special housing unit” (“SHU”), which amounts to solitary

confinement, but such confinement must always serve a specific

penological purpose, and an inmate’s status must be reviewed

within three work days of placement in the SHU, again at seven

calendar days, and then every thirty days after that.                BOP

Program Statement 5270.11 on Special Housing Units, § 1(a), 7

(Nov. 23, 2016).

       The issue of whether current DPS solitary confinement

policies and procedures comports with state due process

standards is not before us.35          In this case, however, for the

reasons explained in Part IV, Section A, subsections 2, 3, and

4, Gordon’s placement in solitary confinement was not reasonably

related, and was excessive in relation to, any legitimate

government purpose.         Therefore, Gordon’s due process right under

Article I, Section 5 of the Constitution of the State of Hawaiʻi

35
      We must express our serious concern, however, with the DPS policy
referenced in this case that only required the custody status of a maximum
custody inmate, whether pretrial detainee or sentenced prisoner, to be
reassessed once a year. It appears this annual review policy would not pass
constitutional muster; as noted, even federal prisons require thirty day
reviews.



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was also violated.

       Because the State has not waived its sovereign immunity for

damages claims against the State for state constitutional

violations, however, there is no damages remedy for the state

constitutional due process violation.            Additionally, the only

possible “further and additional relief” for this violation, as

requested by Gordon in his Amended Complaint, would have been

injunctive or declaratory in nature.            At the time of trial in

this case, Gordon was already being held in medium custody, thus

injunctive relief would have been unnecessary.              To provide

future guidance, however, we note that Gordon’s due process

rights under Article I, Section 5 of the Hawaiʻi Constitution

were violated.36

                                V.    Conclusion

       We conclude that Gordon was subjected to unlawful pretrial

punishment when he was detained in solitary confinement for over

nine months.       His treatment was a violation of his rights under
36
      In Bell, pretrial detainees sought immediate relief from their
conditions of confinement and brought their claim by petition for writ of
habeas corpus, which the court declined to comment upon. 441 U.S. at 526 n.6
(“[W]e leave to another day the question of the propriety of using a writ of
habeas corpus to obtain review of the conditions of confinement[.]”).
      In our jurisdiction, the writ of habeas corpus is still available in
the pre-conviction context. See HRS § 660-3 (2016) (“The supreme court . . .
and the circuit courts may issue writs of habeas corpus in cases in which
persons are unlawfully restrained of their liberty[.]”); see also Oili v.
Chang, 57 Haw. 411, 412, 557 P.2d 787, 788 (1976) (noting that habeas
petitions that would require an evidentiary hearing must be filed in the
circuit court). The writ has, however, been abolished in the post-conviction
context. See Hawai‘i Rules of Penal Procedure Rule 40(a) (2006) (creating a
post-conviction proceeding that encompasses and supersedes “all common law
and statutory procedures for the same purpose, including habeas corpus”).


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  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


the due process clauses of the Fourteenth Amendment of the

United States Constitution and Article I, Section 5 of the

Hawai‘i State Constitution.       We therefore overrule the ICA’s

memorandum opinion to that extent.         However, we conclude that

Cho was entitled to qualified immunity under federal and state

qualified immunity principles for her part in Gordon’s

confinement.    Accordingly, the ICA’s July 6, 2017 judgment on

appeal, filed pursuant to its May 30, 2017 memorandum opinion,

is affirmed on other grounds.

Eric A. Seitz                             /s/ Mark E. Recktenwald
(Della A. Belatti,
Bronson Avila, and                        /s/ Paula A. Nakayama
Sarah R. Devine with
him on the briefs)                        /s/ Sabrina S. McKenna
for petitioner
                                          /s/ Richard W. Pollack
Kendall J. Moser
(Russell A. Suzuki and
Caron M. Inagaki with
him on the briefs)
for respondents




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