INTRODUCTION
Plaintiffs complain and allege as follows:
1.

Bronson Nunuha was a citizen of Hawaii, born in Kahului on the island of

Maui. Bronson died at the age of 26, in the Saguaro Correctional Facility (SCF) in Eloy,
Arizona. He was stabbed more than 140 times by other prisoners whose violent acts were
enabled by Defendants’ negligence, recklessness, and flagrant failure to protect him.
2.

Mr. Nunuha’s Estate, though its Administrator, Brandy Nunuha-Tachera,

his mother, Davina Waialae, his sister, Brandy Nunuha-Tachera, and his son Z.L.S. bring
this action. At bottom, they seek to redress the harm inflicted on them when Defendants,
having custody of Bronson, knowingly placed him in jeopardy of serious injury and
death, and failed to follow basic common-sense correctional practices that would have
prevented his brutal murder at the hands of the violent criminals surrounding him.
3.

Defendant Corrections Corporation of America (CCA) received millions of

dollars in Hawaii taxpayer money between 1995 and 2010, yet CCA and its officers,
managers, employees, and agents failed to spend those dollars on reasonable and
necessary safety measures and adequate staffing for the cell blocks holding Hawaii
prisoners. Bronson was a tragic victim of CCA’s policies and its unchecked hunger for
profits, as well as a host of deliberately indifferent policies, practices, and/or failures to
meet the applicable standards of care.
4.

Defendants the State of Hawaii, the Hawaii Department of Public Safety

(DPS), and their officers, managers, employees, and agents participated in the decision to
understaff SCF and the program in which Bronson was held, turning their backs on a
Hawaii citizen, Bronson, whom they relegated to CCA’s custody and control.
5.

Bronson was convicted of three property crimes (second-degree burglary,

attempted second-degree burglary, and third-degree criminal property damage) in Maui
in 2006. He was sentenced to five years in prison. At the time of his death on February
18, 2010, he was preparing for release just a few months later.

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6.

Between 1995 and 2010, the State of Hawaii and its Department of Public

Safety entered into no-bid contracts with CCA, a private for-profit company, to house
prisoners in correctional facilities on the mainland.
7.

Bronson was transferred to one such facility, CCA’s Saguaro Correctional

Facility (SCF) in Eloy, Arizona, when it opened in 2007.
8.

During his time at SCF, Bronson sent letters home describing his plans for

the future. He described the Hawaiian language correspondence course he was taking,
mailed his mother recipes, and wrote of his repentance for past misdeeds and his desire to
get out of prison and care for his son. He spoke by videoconference to his sister, Brandy
Nunuha-Tachera.
9.

During his time at SCF, Bronson was harassed, attacked, and repeatedly

made to fear for his life at the hands of prison gang members.
10.

Bronson was scheduled for release in October 2010. Hawaii law provides

for the return of prisoners from out-of-state facilities at least one year prior to their
release dates. Under that law, Bronson should have returned to Hawaii in October 2009,
to serve the rest of his sentence. Yet CCA and Hawaii officials kept Bronson at SCF
until his death in February 2010.
11.

CCA required Bronson and many other prisoners to participate in its

Special Housing Incentive Program (SHIP), which meant housing in a progression of cell
blocks (SHIP I, SHIP II and SHIP III). In every stage of the SHIP, CCA mixed convicts
of every level of dangerousness, and gang members with rival gang members and
unaffiliated prisoners. CCA and its officers, managers, employees, and agents placed
Bronson in segregated housing (the equivalent of solitary confinement), or threatened to
place him in segregated housing, until he “agreed” to participate in the SHIP.
12.

After gang members in the SHIP threatened Bronson’s safety, Plaintiffs are

informed and believe and thereon allege that CCA and its officers, managers, employees,

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and agents repeatedly ignored his requests for a transfer to a different housing unit where
he would be safer.
13.

Plaintiffs are informed and believe and thereon allege that the State of

Hawaii and DPS agreed to and tolerated insufficient staffing levels in the SHIP program
at SCF, and that neither the State of Hawaii, nor DPS, nor the individuals charged with
monitoring the CCA contracts acted to enforce the terms of those contracts that would
have protected Hawaii prisoners. State officials did nothing, even after Hawaii auditors
found understaffing and unabated gang activity at CCA’s Arizona facilities. As a result,
CCA chose profits over prisoner safety, and dangerous conditions persisted in the SHIP
program at SCF.
14.

From the beginning of its practice of sending Hawaii prisoners to the

mainland, DPS and Hawaii officials recognized the dangers of CCA’s practice with
regard to mixing gang-involved and non-gang involved prisoners, as well as rival gang
members, and the dangers of lax supervision of housing units. In a 2001 report on the
CCA facility in Florence, Arizona, the auditor wrote that one gang “runs the facility,” and
that Hawaii prisoners were made vulnerable by CCA’s failure to provide sufficient staff
in the housing units during prisoner movement. The auditor wrote: “Movements are
made on the hour and in great numbers with lack of personnel on the floor, allowing
inmates to ‘cluster’ in the halls, making it difficult for the officers to control and observe
the possible passing of contraband. Officers in the pod do not know where any one
inmate is at any given time of day.”
15.

Hawaii state officials and CCA officials knew or should have known that

the danger of gang violence persisted in SHIP II and SHIP III units after a July 17, 2005
incident at CCA’s Tallahatchie County Correctional Facility (TCCF) in Tutwiler,
Mississippi. On that day, a group of prisoners took advantage of CCA’s failure to
maintain security of cell doors to brutally assault Hawaii prisoner Ronnie Lonoaea,
inflicting massive injuries to his head and face, and leaving him for dead. As a result of

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the attack, Mr. Lonoaea may never be able to live outside an institution. See Lonoaea v.
CCA, 665 F. Supp. 2d 677 (N.D. Miss. 2009). One of the prisoners who attacked and
killed Bronson Nunuha, Miti Maugaotega Jr., was part of the July 17, 2005 disturbance
that led to the attack on Lonoaea.
16.

The prisoners who threatened and then killed Bronson Nunuha were violent

criminals with histories of committing gruesome attacks, both before and after their
incarceration. In January 2005, DPS identified Maugaotega as responsible for a dayroom
attack at a Hawaii state prison against another prisoner that left the victim bloodied. The
Department nevertheless transferred Maugaotega to CCA in March 2005. In June 2005,
CCA employees at TCCF wrote a disciplinary report against Maugaotega for injuring a
cellmate in a fight during which weapons were found. In July 2005, CCA wrote up
Maugaotega for taking part in the disturbance and attack that permanently disabled
Ronnie Lonoaea. In May 2007, CCA officials at TCCF wrote up Maugaotega for
attacking prisoner Alejandro Steele, breaking his jaw and sending him to the hospital.
One of the investigators of the attack on Steele was then TCCF Associate Warden Ben
Griego, a Defendant in this case. Thus CCA was well aware and notified of
Maugaotega’s history of violence against other prisoners.
17.

While Bronson was housed in SHIP II, CCA and its officers, managers,

employees, and agents frequently left a single Correctional Counselor to supervise all 50
prisoners in his housing unit.
18.

On the day Bronson was killed, Defendant Nyoka Clark was the sole

Counselor on duty. Clark was known to conduct “office hours” during morning dayroom
time, leaving cell doors in the SHIP II housing unit open while she did so. These periods
provided the perfect opportunity for violence among rival gang members deliberately
mixed in the SHIP II unit, and for prisoners already known to CCA to be predatory to
attack more vulnerable prisoners.
19.

Neither CCA, nor officers, managers, employees, or agents, nor the State of

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Hawaii or DPS, nor the State of Hawaii’s officers, managers, employees, or agents, did
anything to prevent or to mitigate these exceptionally dangerous practices in the SHIP
units at SCF. Instead, many of the individual Defendants employed by the State of
Hawaii condoned CCA’s decision to value its profit margin over the lives of the Hawaii
prisoners entrusted to its care, including Bronson Nunuha.
20.

The State of Hawaii officials charged with managing the contracts between

Hawaii and CCA, and acting reasonably to preserve the safety of Hawaii’s prisoners,
acted negligently or grossly negligently, recklessly, and/or with deliberate indifference to
Bronson’s safety, or they failed to act at all, despite a wealth of evidence that he was in
serious danger of grave injury or death. All Defendants had a duty to exercise ordinary
care to preserve the safety of Bronson and other prisoners, and their actions fell far short
of the applicable standard of care.
21.

CCA, the State of Hawaii, DPS, and many of the individual Defendants

named here also knew or should have known that specific prison gang members meant
Bronson harm. On or about February 10, 2010, eight days before Bronson was murdered,
Maugaotega punched Bronson in the face on the SCF basketball court. Defendant Nyoka
Clark was on duty at the time of this attack.
22.

Maugaotega was a “shot caller” in a dominant, violent prison gang at SCF.

A “shot caller” is a high-ranking gang member who directs the activities of other gang
members, and authorizes the use of violence. CCA housed Maugaotega in the SHIP II
housing unit despite his long rap sheet including rape, home invasion, brutal beatings,
and at least one shooting.
23.

After the assault on Bronson on the basketball court, CCA officers,

managers, employees, and agents failed to conduct the “standing head counts” at roll call
that would have enabled Corrections Officers to observe the black eyes he sustained.
Defendant Clark and the other SCF officers chose instead to confirm each prisoner’s
presence by voice alone, failing to observe Bronson’s injuries. These omissions were in

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keeping with Defendants’ pattern of ignoring warning signs that Bronson was in serious
jeopardy. CCA’s own investigation of the 2007 Steele assault at the Tallahatchie County
Correctional Facility (TCCF) had previously identified the failure to conduct standing
head counts as a factor in that attack.
24.

On February 18, 2010, Bronson succumbed to the fatal mixture of CCA’s

dangerous policies, its lack of oversight and training, its paltry staffing of the SHIP II
unit, the failures of CCA’s officers, managers, employees, and agents, and the failure of
the State of Hawaii, DPS, and the individual Hawaii defendants named here to monitor
dangerous conditions in the SHIP II unit, or ensure the safety of Hawaii prisoners at SCF.
25.

At approximately 9:00 a.m. on February 18, 2010, Defendant Clark left

Bronson’s cell door open, then retreated to her office during dayroom time. Several
prisoners distracted Defendant Clark, who was the sole CCA employee on duty in the
unit, while several others entered the unlocked door to Bronson’s cell and attacked him.
26.

While Defendant Clark was in her office, two prisoners punched, kicked,

and stomped on Bronson. They stabbed him more than 140 times with two different
weapons, and carved the name of their gang into his chest. As he lay dying, other
prisoners mopped up the bloody footprints leading away from his cell, while Counselor
Clark remained distracted by a cluster of prisoners. The assailants showered, changed
clothes, and re-mingled with the other prisoners. At approximately 9:36 a.m. on
February 18, 2010, Defendant Clark discovered Bronson’s lifeless body.
27.

Defendants’ failures caused Bronson intense and wholly preventable

suffering, and ultimately cost Bronson his life. Defendants’ indifference to Bronson’s
safety, and their gross negligence, deprived the Plaintiffs in this action of Bronson’s
society, companionship, comfort, protection, care, attention, advice, training, guidance,
and/or attention.
28.

All Defendants had a duty to exercise ordinary care to preserve the safety of

Hawaii prisoners at CCA. CCA and its officers, managers, employees, and agents put

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profits ahead of prisoner safety, and failed to exercise the proper care. CCA’s failures,
condoned by the Hawaii Defendants, included understaffing the SHIP II unit, housing
violent offenders with non-violent offenders, failing to separate members of rival gangs,
failing to separate gang members from non-gang members, ignoring signs that Bronson
was in danger, and failing to monitor or oversee dangerous conditions at SCF that
directly contributed to Bronson’s death.
29.

Plaintiffs bring this tort and civil rights action against Defendants for

causing Bronson’s wrongful and premature death, for negligence and/or gross negligence,
for subjecting Bronson to cruel and unusual punishment and depriving his family of
substantive due process under the Hawaii Constitution, and for violating the First, Eighth,
and Fourteenth Amendments to the United States Constitution.
JURISDICTION AND VENUE
30.

This Court has jurisdiction over the state claims in this matter pursuant to

Hawaii Revised Statutes § 663-3, and jurisdiction over all Defendants pursuant to HRS
§ 634-35. Plaintiffs seek compensatory damages in excess of $25,000.
31.

This Court has concurrent jurisdiction over the federal constitutional claims

in this matter pursuant to 42 U.S.C. § 1983. See Howlett v. Rose, 496 U.S. 356, 378 n. 20
(1990); Martinez v. California, 444 U.S. 277, 283-84 n. 7; Mankanui v. Dept. of
Education, 6 Haw. App. 397, 721 P. 2d 165 (1986).
32.

Venue is proper in this Circuit, because substantial acts and omissions

giving rise to the claims occurred in this Circuit. The State of Hawaii and DPS
contracted with CCA in this Circuit, made the decision to send Bronson to SCF from this
Circuit, and acted with negligence and/or deliberate indifference to Bronson’s safety, or
they failed to act at all, from this Circuit. CCA executed its contracts with the State of
Hawaii and DPS in this Circuit, and receives payment from the State’s Treasury located
in this Circuit. The Plaintiffs are residents of Hawaii. Defendants Maesaka-Hirata,
Frank, Booker, Jr., Johnson, Jinbo, Baltero, Payne, Hales, Tito, and Kimoto are or were

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residents of Hawaii. Defendants Frank, Booker, Jr., Johnson, Jinbo, Baltero, Payne,
Hales, Tito, and Kimoto acted or failed to act from this Circuit, in ways that were the
legal cause of damages to the Plaintiffs. All of the parties have significant contacts with
Hawaii, and many witnesses reside in this Circuit and the State of Hawaii.
JURY TRIAL DEMANDED
33.

Plaintiffs demand a jury trial.
PARTIES

34.

Plaintiffs’ decedent is BRONSON NUNUHA, who, at the time of his death,

was a 26-year-old citizen of the State of Hawaii, and a prisoner at the Saguaro
Correctional Facility (SCF). BRANDY NUNUHA-TACHERA, as Administrator of the
Estate of BRONSON NUNUHA, brings this action pursuant to Hawaii’s wrongful death
statute, HRS § 663-3, the Hawaii Constitution, and the First, Eighth, and Fourteenth
Amendments to the Constitution of the United States, pursuant to 42 U.S.C. § 1983. The
survival claims for relief in this matter are based on violations of Bronson Nunuha’s
rights under Hawaii state law, and the First and Fourteenth Amendments to the
Constitution of the United States, pursuant to 42 U.S.C. § 1983.
35.

Plaintiff BRANDY NUNUHA-TACHERA also brings claims individually

under HRS § 663-3, the Hawaii Constitution, Hawaii common law, and the First and
Fourteenth Amendments to the Constitution of the United States, pursuant to 42 U.S.C. §
1983, as Bronson Nunuha’s sister. She was Bronson’s best friend growing up, and she
remained in contact with him after his incarceration. Ms. Nunuha-Tachera last spoke to
her brother by video conference a month before he died.
36.

Plaintiff DAVINA WAIALAE is Bronson Nunuha’s mother. She is suing

individually for violation of her rights under HRS § 663-3, the Hawaii Constitution and
Hawaii common law, and for violations of her civil rights under the First and Fourteenth
Amendments. Plaintiffs BRANDY NUNUHA-TACHERA and DAVINA WAIALAE
are residents of the City and County of Honolulu, Hawaii.

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37.

Plaintiff Z.L.N. is Bronson Nunuha’s son. He is suing individually for

violation of his rights under HRS § 663-3 and the Hawaii Constitution, and for violations
of his civil rights under the First and Fourteenth Amendments. Plaintiff Z.L.N., a minor,
is suing through his guardian ad litem, Davina Waialae.
38.

Defendant HAWAII DEPARTMENT OF PUBLIC SAFETY is a public

agency and a subsidiary of Defendant STATE OF HAWAII. Both Defendant HAWAII
DEPARTMENT OF PUBLIC SAFETY and Defendant STATE OF HAWAII are charged
with preserving the safety of prisoners incarcerated pursuant to orders of the courts of the
State of Hawaii. They are subject to tort liability pursuant to the State Tort Liability Act,
Hawaii Revised Statutes §§ 662-1, et seq. These two Defendants are sued solely for
violations of the Hawaii Constitution and Hawaii state law. Under its authority,
Defendant STATE OF HAWAII was, at all relevant times mentioned herein, responsible
for the acts and/or omissions and the policies, procedures, customs, and practices of the
HAWAII DEPARTMENT OF PUBLIC SAFETY, and for its officers, managers,
employees, and/or agents. Defendant HAWAII DEPARTMENT OF PUBLIC SAFETY
was, at all relevant times mentioned herein, responsible for the acts and/or omissions and
the policies, procedures, customs, and practices of its officers, managers, employees,
and/or agents. According to the Hawaii State Auditor: “The Department of Public Safety
is responsible for formulating and implementing State policies and objectives for
correctional, security, law enforcement, and public safety programs and functions, and
maintaining all public or private correctional facilities and services. The department’s
mission is to provide for the safety of the public and state facilities through law
enforcement and correctional management.”
39.

Defendant JODIE F. MAESAKA-HIRATA is the Director of the Hawaii

Department of Public Safety. According to the State Auditor, the Director of the
Department of Public Safety “charges, directs, and coordinates the plans, programs, and
operations [of DPS] to provide for the safety of people, both residents and visitors, from

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crimes against people and property.” She is sued solely for violations of the Hawaii
Constitution and Hawaii state law.
40.

Defendant CLAYTON FRANK is the previous Director of the Hawaii

Department of Public Safety. Plaintiffs are informed and believe that Defendant
CLAYTON FRANK was the Director of the Department of Public Safety at all times
relevant herein. For purposes of Plaintiffs’ federal law claims, he is sued in his
individual capacity, for actions under color of state law.
41.

Defendant JOE W. BOOKER, JR. is the Deputy Director of the Hawaii

Department of Public Safety, and head of the Corrections Division. According to the
State Auditor, the Deputy Director for Corrections “provides for the custody, care, and
assistance of all persons incarcerated by the courts or otherwise subject to confinement
based on an alleged commitment of a criminal offense.” Plaintiffs are informed and
believe that Defendant JOE W. BOOKER, JR. was also the designated Contract
Administrator for the State of Hawaii, charged with administering the contract between
the State of Hawaii and CCA, for some or all of the relevant time period. For purposes of
Plaintiffs’ federal law claims, Defendant JOE W. BOOKER, JR. is sued in his individual
capacity, for actions under color of state law.
42.

Defendant TOMMY JOHNSON is the previous Deputy Director of the

Hawaii Department of Public Safety, and head of the Corrections Division. Plaintiffs are
informed and believe that Defendant TOMMY JOHNSON was the Deputy Director for
some or all of the relevant time period. For purposes of Plaintiffs’ federal law claims, he
is sued in his individual capacity, for actions under color of state law.
43.

Defendant SCOTT JINBO is a Contract Monitor and a member of the

Audit Team charged by Defendant HAWAII DEPARTMENT OF PUBLIC SAFETY
with assessing Defendant CCA’s compliance with its contract to house Hawaii prisoners.
For purposes of Plaintiffs’ federal law claims, he is sued in his individual capacity, for
actions under color of state law.

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44.

Defendant JEANETTE BALTERO is a Contract Monitor and a member of

the Audit Team charged by Defendant HAWAII DEPARTMENT OF PUBLIC SAFETY
with assessing Defendant CCA’s compliance with its contract to house Hawaii prisoners.
For purposes of Plaintiffs’ federal law claims, she is sued in her individual capacity, for
actions under color of state law.
45.

Defendant CAROL PAYNE is a Health Care Administrator and a member

of the Audit Team charged by Defendant HAWAII DEPARTMENT OF PUBLIC
SAFETY with assessing Defendant CCA’s compliance with its contract to house Hawaii
prisoners. For purposes of Plaintiffs’ federal law claims, she is sued in her individual
capacity, for actions under color of state law.
46.

Defendant LARRY HALES is a Substance Abuse Administrator and a

member of the Audit Team charged by Defendant HAWAII DEPARTMENT OF
PUBLIC SAFETY with assessing Defendant CCA’s compliance with its contract to
house Hawaii prisoners. For purposes of Plaintiffs’ federal law claims, he is sued in his
individual capacity, for actions under color of state law.
47.

Defendant MAUREEN TITO is a Program Administrator and a member of

the Audit Team charged by Defendant HAWAII DEPARTMENT OF PUBLIC SAFETY
with assessing Defendant CCA’s compliance with its contract to house Hawaii prisoners.
For purposes of Plaintiffs’ federal law claims, she is sued in her individual capacity, for
actions under color of state law.
48.

Defendant SHARI KIMOTO is the Mainland Branch Coordinator for the

HAWAII DEPARTMENT OF PUBLIC SAFETY, charged with overseeing the
operations of mainland facilities holding Hawaii prisoners. On the document labeled as
“State of Hawaii Agreement, Contract No. 55331,” available on the HAWAII
DEPARTMENT OF PUBLIC SAFETY website, which appears to be the body of the
State’s contract with CCA, Defendant SHARI KIMOTO appears as the State’s contact
person. Defendant SHARI KIMOTO also led the Audit Team charged with assessing

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Defendant CCA’s compliance with its contract to house Hawaii prisoners. For purposes
of Plaintiffs’ federal law claims, she is sued in her individual capacity, for actions under
color of state law.
49.

Defendant CORRECTIONS CORPORATION OF AMERICA is a

Maryland corporation with its principal place of business in Nashville, Tennessee. CCA
“manages approximately 75,000 inmates including males, females, and juveniles at all
security levels, in more than 60 facilities under contract for management in 19 states and
the District of Columbia.” http://www.cca.com/facilities/ (last accessed 2/14/2012).
Between 1995 and 2010, CCA and the State of Hawaii have entered into no-bid contracts
to house prisoners on the mainland, in facilities including SCF, located in Eloy, Arizona.
50.

Defendant NYOKA R. CLARK was employed by CCA at SCF at the time

of Bronson’s death. Her title was Correctional Counselor. According to a 2007 edition
of the SCF Inmate Handbook, a Correctional Counselor “comes from a security
background and has experience as a corrections officer, [and] is part of the unit team with
the primary responsibility for resolving daily inmate issues before they become
significant matters, incidents or grievances.” She was frequently the only CCA employee
on duty in the 50-man SHIP II unit. On February 18, 2010, as was her practice, Clark
opened some or all of the SHIP II cell doors, including Bronson’s, and left them open
during dayroom time while she went back to her office. Several prisoners distracted her,
while two others murdered Bronson.
51.

Defendant CHRISTINE FRAPPIEA was employed by CCA at SCF at the

time of Bronson’s death. She served as Classification Supervisor for SCF from 2007
until at least March of 2010. According to a 2007 edition of the SCF Inmate Handbook,
the Classification Supervisor “reviews all classification documentation.” Plaintiffs are
informed and believe and thereon allege that, as Classification Supervisor, Defendant
FRAPPIEA was responsible for applying rational standards to classify and re-classify
prisoners at SCF. Her failure to properly apply such standards meant that Bronson was

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housed among violent criminals like Miti Maugaotega and Micah Kanahele.
52.

Defendant TODD THOMAS was a CCA employee and the Warden of SCF

at the time of Bronson’s death. As Warden of SCF, Defendant THOMAS was
responsible for the hiring, screening, training, retention, supervision, discipline,
counseling, and control of CCA employees and/or agents assigned to SCF, including
Defendants CLARK, FRAPPIEA, GIULIN, GARCIA, DOBSON, TREJO, GRIEGO,
KALANI, MEINER, and some or all of DOES 16 through 30. Defendant THOMAS is
and was also responsible for the promulgation of the policies and procedures and
allowance of the practices and customs pursuant to which the acts and omissions of CCA
alleged herein were committed.
53.

Defendant JESUS GIULIN was employed by CCA as a Shift Supervisor at

SCF at the time of Bronson’s death. According to a 2007 edition of the SCF Inmate
Handbook, a Shift Supervisor “is responsible for the supervision of the administrative
and operational security activities on a specific shift.”
54.

Defendant FRANK GARCIA was employed by CCA as a Unit Manager at

SCF at the time of Bronson’s death. According to a 2007 edition of the SCF Inmate
Handbook, Unit Managers are “supervisors who work in the living units. They hire
workers to work in their area of responsibility as well as coordinate workers for the other
departments such as Education, Maintenance, Food Service, Medical Department, etc.
The Unit Manager is also responsible for bed/unit moves.”
55.

Defendant TIMOTHY DOBSON was employed by CCA as a Unit

Manager at SCF at the time of Bronson’s death. According to a 2007 edition of the SCF
Inmate Handbook, Unit Managers are “supervisors who work in the living units. They
hire workers to work in their area of responsibility as well as coordinate workers for the
other departments such as Education, Maintenance, Food Service, Medical Department,
etc. The Unit Manager is also responsible for bed/unit moves.”
56.

Defendant ALFRED TREJO was employed by CCA as a Senior

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Correctional Officer at SCF at the time of Bronson’s death.
57.

Plaintiffs are informed and believe and thereon allege that Defendants

JESUS GIULIN, FRANK GARCIA, TIMOTHY DOBSON, and ALFRED TREJO
exercised supervisory authority over Defendant NYOKA CLARK within the CCA chain
of command. Plaintiffs are informed and believe and thereon allege that Defendants
JESUS GIULIN, FRANK GARCIA, TIMOTHY DOBSON, and ALFRED TREJO were
responsible for enforcing CCA policies and procedures at SCF at the time of Bronson’s
death.
58.

Defendant BEN GRIEGO was employed by CCA as an Assistant Warden

at SCF at the time of Bronson’s death. Plaintiffs are informed and believe and thereon
allege that Defendant BEN GRIEGO exercised supervisory authority over Defendants
JESUS GIULIN, FRANK GARCIA, TIMOTHY DOBSON, ALFRED TREJO, and
NYOKA CLARK within the CCA chain of command. Plaintiffs are informed and
believe and thereon allege that Defendant BEN GRIEGO was responsible for enforcing
CCA policies and procedures at SCF, and that Defendant BEN GRIEGO had additional
responsibilities during the times relevant herein, including conducting investigations of
violent altercations between prisoners. Plaintiffs are informed and believe and thereon
allege that Defendant BEN GRIEGO investigated a May 2007 attack at TCCF involving
one or more of Bronson’s assailants.
59.

Defendant KALUM KALANI was employed by CCA as an Assistant

Warden of SCF at the time of Bronson’s death. Plaintiffs are informed and believe and
thereon allege that Defendant KALUM KALANI exercised supervisory authority over
Defendants JESUS GIULIN, FRANK GARCIA, TIMOTHY DOBSON, ALFRED
TREJO, and NYOKA CLARK within the CCA chain of command. Plaintiffs are
informed and believe and thereon allege that Defendant KALUM KALANI was
responsible for enforcing CCA policies and procedures at SCF.
60.

Defendant SEAN MEINER was a CCA employee and the Assistant Chief

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of Security at SCF at the time of Bronson’s death. Plaintiffs are informed and believe
and thereon allege that Defendant SEAN MEINER exercised supervisory authority over
Defendants JESUS GIULIN, FRANK GARCIA, TIMOTHY DOBSON, ALFRED
TREJO, and NYOKA CLARK within the CCA chain of command. Plaintiffs are
informed and believe and thereon allege that Defendant SEAN MEINER was responsible
for enforcing CCA policies and procedures at SCF, and that Defendant SEAN MEINER
was specifically charged with maintaining order at SCF during the times relevant herein.
61.

Plaintiffs are ignorant of the true names and capacities of Defendants

DOES 1 THROUGH 30 and therefore sue said Defendants by such fictitious names.
DOES 1 THROUGH 15 are fictitiously-named officers, managers, employees, or agents
of the STATE OF HAWAII. DOES 16 THROUGH 30 are fictitiously-named officers,
managers, employees, or agents of CCA. Plaintiffs will amend this Complaint to allege
their true names and capacities and thereon allege that each of the fictitiously-named
Defendants is responsible in his/her official and/or individual capacity for the
occurrences herein alleged, and that Plaintiffs’ damages, as herein alleged, were legally
caused by their conduct. Plaintiffs have made good faith and diligent efforts to identify
said Defendants, including interviewing individuals with knowledge of the claims herein.
62.

In addition to the agency relationships described above, Plaintiffs are

informed and believe that, for purposes of the state and federal law claims stated herein,
every Defendant was an agent of all other Defendants.
63.

Plaintiffs allege that all Defendants employed by CCA were acting under

color of state law at all times relevant herein.
FACTS COMMON TO ALL CLAIMS
A.

Hawaii Provided CCA with a No-Bid Contract to House Prisoners on
the Mainland, and Retained Authority to Manage, Supervise, and
Monitor Conditions and Staffing at CCA Facilities.

64.

Hawaii entered into contracts with CCA from 1995 until 2011. Under the

terms of those contracts, CCA housed prisoners in Arizona facilities at all times relevant
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to this Complaint. SCF is the largest of these facilities. At the time of Bronson’s death,
SCF housed approximately 1,871 Hawaii prisoners.
65.

CCA secured the $66 million contract in effect when Bronson was killed

via a no-bid process, about which the Hawaii State Auditor raised serious questions. In a
December 2010 Report, the Auditor wrote as follows:
Circumventing the law
In 2006, the past department director signed an intergovernmental agreement (IGA) with the City of Eloy,
Arizona, to consolidate housing for Hawai‘i inmates to three
prisons owned and operated by Corrections Corporation of
America (CCA), a for-profit provider of correctional
facilities. At the time, the corporation was building a $95
million prison in Saguaro, Arizona, specifically for Hawai‘i
inmates.
As the name indicates, IGAs are agreements that involve
government-to-government transactions. These agreements
are exempt from competitive procurement methods that state
agencies must generally employ when soliciting proposals, a
requirement of the Hawai‘i Public Procurement Code.
However, in the department’s IGA with Eloy, the department
actually conducts all transactions directly with CCA. We
found no evidence that Eloy sub-contracted inmate services to
CCA, nor is the city compensated for its role in the
agreement. In the State chief procurement officer’s opinion,
such a contract inappropriately used the IGA exemption and
is circumventing the law. Through this misuse of the
exemption, the department was able to secure CCA as its
preferred provider. …
We found that the department has no written policies or
procedures for contract administration, and the administrator
and staff readily accepted CCA’s representations and
conclusions of its performance without verifying statements
against documented evidence.
66.

As alleged below, CCA has not met its obligations under its contract to

maintain reasonable levels of safety for Hawaii citizens in its custody.

16
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67.

Bronson was transferred to SCF and housed there pursuant to the contract

under which both the State of Hawaii and CCA retained responsibility to preserve the
safety of Hawaii prisoners.
68.

The DPS website contains a document labeled as “State of Hawaii

Agreement, Contract No. 55331.” Although the bottom of each page of that document
reads “Exhibit A,” the provisions appear to be from the body of a contract between the
State and CCA. Those provisions include the following:
a.

Hawaii must provide information to CCA upon inmate transfer,

including an “Inmate Classification Score,” (¶ 3c) and both the “State and
the facility staff” have input into inmate classifications (¶¶ 13 & 24i);
b.

CCA is responsible for staffing SCF “in accordance with CCA

policies and [American Correctional Association] standards.” CCA must
give the Hawaii Department of Public Safety “copies of its staffing pattern
and the identification of all mandatory posts” and “copies of any staffing
pattern changes.” (¶ 5l);
c.

CCA must provide “the State with office space, telephone and

computer access for the on-site monitor that the State may employ” (¶ 24j);
d.

Hawaii retains broad powers to monitor compliance, inspect

premises, records, and information (¶¶ 25-27), and to review and approve
“inmate transfers, classification custody level changes, determination of
release dates, parole eligibility, and work line salaries” (¶ 27); and
e.

CCA must make substantial, regular reports to Hawaii:
[CCA] shall provide to the [State] progress
reports every 6 months summarizing each
Inmate’s conduct, adjustment, and program
participation, and recommendations regarding
the Inmate’s continued placement in … SCF,
and an annual consideration for reclassification.
Semiannual reports shall be submitted no later
than 10 working days after the end of each 6-

17
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month period.
… SCF shall submit the following reports to the
[State] by the 5th working day of each month:
a.
Name and number of
Inmates placed in disciplinary,
administrative
or
medical
segregation, along with the reason
for placement and the dates of
placement;
b.
Name and number of
Inmates who are in educational,
vocational training, treatment, and
other programs;
c.
Name and number of
Inmates who are assigned to jobs,
along with the title of their jobs,
hours of work, and rate of pay;
d.
Monthly grievance log
containing
Inmate's
name,
description of grievance and
outcome of grievance;
e.
Narrative
of
Facility
highlights, serious incidents, and
other significant issues; and
f.
Summary reports on the
results of urinalysis conducted on
Inmates pursuant to this Contract;
and
g.

Staffing plan patterns.

[CCA] shall provide the State with copies of
reports of inspections conducted by local fire,
health, and other regulatory agencies. (¶ 32).
See http://hawaii.gov/psd/corrections/institutions-

18
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division/prisons/contracts/ARIZONA%20Contract.PDF/at_download/file, last accessed
2/14/2012.
69.

DPS has developed and promulgated an Inmate Classification System, to

govern the housing of prisoners by propensity to engage in violence. Plaintiffs are
informed and believe and thereon allege that, at the time of Bronson’s death, the Inmate
Classification System was inadequate to protect Bronson from known risks of serious
harm and death.
70.

Paragraph 23(c) of Exhibit A to CCA’s contract with the State of Hawaii

requires that CCA comply with all mandatory provisions and 90% of all non-mandatory
provisions in the American Correctional Association (ACA) Standards for Adult
Correctional Institutions, Fourth Edition, and Supplements. ACA Standards 4-4295
through 4-4299 require adult correctional institutions to develop and apply a system of
classification for prisoners. However, none of these standards mandates the separation of
prisoners from different classification levels, to ensure safety. For this reason, Plaintiffs
are informed and believe and thereon allege that the ACA Standards referred to in the
contract between Hawaii and CCA were inadequate to protect Bronson from known risks
of serious harm and death.
71.

To the extent that the DPS and/or ACA classification systems included any

proper elements, the Hawaii defendants failed to enforce them; and CCA failed to deploy
them in a rational way, or to use any classification system reasonably calculated to
respond to known risks of serious injury and death to SCF prisoners and SHIP
participants.
B.

Defendants Endangered Bronson by Holding Him at SCF Beyond
October 2009, in Violation of Hawaii Law.

72.

HRS § 353H-7 provides in relevant part that “The director of public safety

shall return Hawaii inmates held in out-of-state prisons at least one year prior to the
inmate’s parole or release date in order for these inmates to participate in programs

19
[600586-2]

preparing them for reentry on the island where they have the most support; provided that
inmates participating in reentry programs at the mainland facility in which they are
incarcerated consent to the return.”
73.

Because Bronson was due to be released from custody in October 2010, the

Department of Public Safety was required to return him to Hawaii no later than October
2009, pursuant to the plain language of HRS § 353H-7.
74.

Had the Department of Public Safety returned Bronson to Hawaii in

October 2009 as required by law, he would not have been housed in CCA’s SHIP II
program in February 2010 and would not have been exposed to the dangerous conditions
at SCF that caused his death.
75.

SHIP is not a reentry program. Plaintiffs are informed and believe and

thereon allege that SCF does not provide programs designed to aid the transition to
society in Hawaii. Even if SHIP were considered a reentry program, however, Bronson’s
letters show that he was eager to return to Hawaii to see his family, and would not have
withheld his consent to return in compliance with Hawaii law.
76.

Defendants’ failure to transfer Bronson back to Hawaii was a legal cause of

his injuries, pain and suffering, and death.
C.

Defendants Endangered Bronson by Requiring Him to Live Among
Gang-Affiliated Prisoners with a Proven Propensity for Extreme
Violence.

77.

Defendant CCA and its officers, managers, employees, and agents,

including Defendants Thomas, Griego, Kalani, Meiner, Frappiea, and Clark, required
Bronson to participate in the SHIP. Plaintiffs are informed and believe and thereon
allege that each time Bronson would refuse to participate in the SHIP due to concerns
about his safety, Defendants imposed additional time in disciplinary segregation, creating
an endless loop of segregation until such time as he agreed to participate in the SHIP.
78.

CCA did not classify prisoners in the SHIP based on any rational

classification system reflecting propensity for violence, or otherwise reasonably
20
[600586-2]

calculated to preserve the safety of Hawaii prisoners. Following an October 2008 visit to
SCF, auditors from the State of Hawaii marked CCA “non-compliant” in three
classification-related categories, including “[Classification] Completed Annually by the
Facility Classification Officer,” and “Special Classification completed for
SHIP/Administrative Segregation.” Defendant Shari Kimoto wrote that “HI
reclassification has not been completed on a consistent monthly basis and sent to
Mainland Branch.”
79.

Yet the Defendant officers, managers, employees, and agents of the State of

Hawaii did not effectively follow-up on the 2008 audit. Defendant officers, managers,
employees, and agents of the State of Hawaii did not ensure that CCA used the DPS
Classification System, or any rational classification system reflecting propensity for
violence, or otherwise reasonably calculated to preserve the safety of Hawaii prisoners, in
the SHIP. As a result, Bronson, serving a short sentence for non-violent offenses, was
easily accessible to violent members of the dominant prison gang, including Miti
Maugaotega, Jr. and Micah Kanahele, the two members of a major prison gang who have
been charged with stabbing Bronson to death on February 18, 2010.
80.

All Defendants knew or should have known that in 2005 and 2007, Hawaii

prisoners at TCCF were severely injured in gang-related attacks involving members of
the same gang whose members attacked Bronson. The State of Hawaii and CCA had
documented Maugaotega’s involvement in previous incidents of serious violence against
other Hawaii prisoners, including a January 2005 bloodying of another prisoner at a
Hawaii state prison, a June 2005 fight with a cell mate during which weapons were found
at TCCF, the July 2005 attack on Ronnie Lonoaea at TCCF that left Lonoaea
permanently disabled by brain injuries and severely disfigured, and a May 2007 attack at
TCCF in which the victim’s jaw was broken, which was investigated by Defendant Ben
Griego.
81.

All Defendants knew or should have known that rival gangs often fight

21
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violently in prison and jail settings. CCA and its managers, employees, and officers were
aware that prison gang members frequently used violence against rivals and unaffiliated
prisoners.
82.

Defendant officers, managers, employees, and agents of DPS co-authored

the Hawaii Security Threat Groups Reference Manual, the 2004 edition of which contains
six detailed pages on the prison gang to which Bronson’s killers belonged. The Manual
states that the gang has a “high” propensity for violence, and the particular branch of the
gang for which Maugaotega was a known shot-caller is perhaps the most vicious and
dangerous of all.
83.

All Defendants knew or should have known of Maugaotega’s specific

propensity for violence. Plaintiffs are informed and believe and thereon allege that at the
time of Bronson’s murder, Maugaotega was serving the longest sentence ever given to
any Hawaii convict. The 40-day 2003 crime spree for which he was imprisoned included
a home-invasion-style armed robbery, the rape and pistol-whipping of a 55-year-old
woman, and a shooting and robbery. These crimes were well publicized. One judge
described him as a “walking crime wave.” As described above, Maugaotega’s history as
a gang shot caller, who frequently orchestrated and participated in attacks on those
singled out for punishment, was also well documented by the CCA. Defendants,
including those officials charged with managing and staffing SCF in general, and the
SHIP in particular, knew or should have known of this history.
84.

Defendants failed to take any action to separate gang members, including

Maugaotega, from non-members or members of rival gangs, or to keep extremely violent
offenders like Maugaotega away from prisoners like Bronson, who was serving a short
sentence for property crimes and was only a few months from release.
85.

To the contrary, Defendants insisted that the blending of gang members

with rival gang members or non-members was an integral and important feature of the
SHIP, rather than a dangerous and anomalous practice. In response to a prisoner’s 2010

22
[600586-2]

grievance asking to be separated from antagonistic gang members, Defendant Clark
wrote, “All gangs are mixed together because gangs are suppose [sic] to be behind you.”
86.

In CCA’s SCF Policy 10-101, effective May 15, 2008, and approved by

Defendant Todd Thomas, gang membership is listed as a criterion for SHIP placement.
Policy 10-101 contains no provision for separating members of rival gangs, or separating
gang members from prisoners unaffiliated with gangs, in the SHIP.
87.

Defendants knew or should have known that living among violent gang

members and dangerous criminals is inherently dangerous. Plaintiffs are informed and
believe and thereupon allege that some prisoners were required to participate in the SHIP
program as punishment for bad behavior, showing that Defendants did know that the
program was dangerous.
D.

88.

Defendants Failed to Exercise Ordinary Care for Bronson and Were
Deliberately Indifferent to His Safety, by Repeatedly Failing to
Transfer Him from the Dangerous SHIP II Unit.
Members of Mr. Maugaotega’s gang repeatedly threatened Bronson. CCA

and its officers, managers, employees, or agents were aware of these threats. Plaintiffs
are informed and believe and thereupon allege that Bronson repeatedly requested
alternative housing, and refused to participate in the SHIP program where dangerous
gang members lived.
89.

CCA required Bronson to live in the SHIP II cell block, and denied his

repeated requests to transfer to a different cell block. Defendants Thomas, Griego,
Frappiea, and Clark specifically enforced CCA’s policies against transfers based on gang
affiliation. According to numerous prisoner accounts, Defendants Thomas and Griego
told Bronson that he “must be housed with everybody no matter what” in order to
complete the SHIP program.
90.

On or about February 11, 2010, a prisoner hit Bronson in the face on the

basketball court. Defendant Clark was on duty during the incident.
91.

After February 11, other prisoners noted that Bronson had two black eyes
23

[600586-2]

as a result of the basketball court attack.
92.

During the week prior to Bronson’s murder, Defendants did not conduct

“standing head counts” in SHIP. Requiring him to stand up during roll call would have
led to discovery of Bronson’s injuries. Discovery of Bronson’s injuries would have led
to placement in 24/7 segregation, which would have saved his life. CCA and the
individual named Defendants took none of these actions.
E.
93.

Defendants Inadequately Staffed the SHIP II Cell Block, Leading to
Lapses in Security Which Were the Legal Cause of Bronson’s Death.
Paragraph 23(c) of Exhibit A to CCA’s contract with the State of Hawaii

requires that CCA comply with all mandatory provisions and 90% of all non-mandatory
provisions in the ACA Standards for Adult Correctional Institutions, Fourth Edition, and
Supplements. Paragraph 5(l) specifically requires that “security/control and operating
plans shall be in accordance with CCA Policies and ACA Standards.” These Policies and
Standards are inadequate to assure reasonable safety of Hawaii’s prisoners. For example,
the “Staffing Requirements” Standards in the 4th Edition of the ACA Standards
(published in 2003) read in their entirety:
4-4050: The staffing requirements for all categories of
personnel are determined on an ongoing basis to ensure that
inmates have access to staff, programs, and services.
4-4051: The institution uses a formula to determine the
number of staff needed for essential positions. The formula
considers, at a minimum, holidays, regular days off, annual
leave, and average sick leave.
4-4052: The warden/superintendent can document that the
overall vacancy rate among the staff positions authorized for
working directly with inmates does not exceed 10 percent for
any 18-month period.
There is no reference anywhere in these Standards to the number of Correctional
Officers needed to preserve the safety of prisoners in a 50-man cell block like the SHIP.

24
[600586-2]

The State of Hawaii, and the individual Hawaii defendants, failed to insist on more
concrete and definite staffing levels, including a prisoner-to-guard ratio rationally
calculated to protect the safety of prisoners. In so doing, they illegally abdicated their
responsibility to protect Hawaii citizens incarcerated on the mainland.
94.

In any event, Paragraphs 5(1), 23(c), and 28(b) of Exhibit A to Hawaii’s

contract with CCA acknowledge Hawaii’s right and duty to oversee and control staffing
decisions, and to assess liquidated damages against CCA if positions are not filled and
staffing quotas are not met.
95.

Despite these contract provisions, neither CCA nor its officers, managers,

employees, or agents, nor the Hawaii Defendants, acted to ensure that the SHIP II cell
block at SCF was properly staffed.
96.

Instead CCA, and the individual CCA-employed Defendants named herein,

acted deliberately to understaff the SHIP II, placing Bronson and other Hawaii prisoners
in mortal danger.
97.

Plaintiffs are informed and believe that Defendant officers, managers,

employees, and agents of the State of Hawaii were aware of the CCA policies and
practices which valued profits over the safety of Hawaii prisoners, yet they condoned
systematic understaffing of the SHIP units. In numerous audits or monitoring reports
signed by Defendant Kimoto while Bronson was housed at SCF, CCA was marked
“compliant” in the areas of “Security Staffing Plan,” “24-Hour Staffing Plan,” and “Case
Managers.” In an audit report dated October 27-29, 2008, Defendant Kimoto wrote that
SCF was operating “at 95% staffing.”
98.

In December 2010, State Auditor Marion M. Higa found that the State of

Hawaii had almost completely abdicated its responsibility to oversee the treatment of
Hawaii prisoners on the mainland. She wrote that DPS “has no written policies or
procedures for contract administration, and the administrator and staff readily accepted
CCA’s representations and conclusions of its performance without verifying statements

25
[600586-2]

against documented evidence.”
99.

Defendant officers, managers, employees, and agents of the State of Hawaii

agreed to inadequate staffing levels, ignored the dangerous conditions revealed during
audits of SCF, and/or failed to assess damages or other contractual sanctions against CCA
for understaffing, which was a legal cause of the injuries that Plaintiffs suffered.
100.

By the policy and practice of CCA officials, ratified by CCA and the

Defendant officials and employees of State of Hawaii and DPS, the 50-man SHIP II unit
was routinely monitored or guarded by a single CCA employee.
101.

Defendant Clark was routinely the only CCA employee on duty in the

SHIP, charged with supervising 50 convicts, many of them violent and many of them
commingled members of rival gangs.
102.

Defendant Clark was known to leave cell doors unlocked during dayroom

time, so that prisoners could get back into their cells to retrieve items that they might
need for showering or for other needs, and to save herself the inconvenience of
repeatedly unlocking and relocking individual cell doors. Plaintiffs are informed and
believe and thereon allege that Defendant Clark was previously disciplined for this
dangerous practice, but that she resumed it after a short time.
103.

Plaintiffs are informed and believe and thereon allege that Defendant Clark

was on duty on the day prisoners assaulted Bronson on the basketball court, on or about
February 10, 2010. Yet she failed to observe or report Bronson’s injuries from that
assault, failed to conduct standing head counts, and failed to place Bronson in protective
segregation or take any other action to safeguard Bronson.
F.

Defendants’ Failures to Take Ordinary Care to Preserve the Safety of
SCF Prisoners, and Their Deliberate Indifference to Unsafe Conditions
and Inadequate Staffing, Were the Legal Cause of Bronson’s Wrongful
Death.

104.

Defendant Clark was the only CCA employee on duty in the SHIP II unit

on February 18, 2010. Defendant Clark had been the only employee on duty when

26
[600586-2]

Bronson was assaulted a week prior. Yet she did nothing to separate Bronson from the
gang members who posed a threat to him, nor did she take the reasonable precautions that
would have disrupted the fatal assault on February 18. Defendant Clark enabled
Bronson’s assailants to carry out their plan by leaving SHIP II cell doors unlocked and
failing to supervise the unit during dayroom time.
105.

Plaintiffs are informed and believe, based in part on the statements of many

Hawaii prisoners who were housed with Bronson in the SHIP in 2009-2010, and thereon
allege that Maugaotega’s vendetta against Bronson was common knowledge in February
2010. SHIP participants spoke of Maugaotega’s desire to kill Bronson for the perceived
offense of carving insults to the prison’s dominant gang into cafeteria trays, or for
“playing the door,” i.e., insulting gang-affiliated prisoners from inside his locked cell.
106.

Defendants acted negligently and with deliberate indifference to this

information, and to Bronson’s pleas for removal from the SHIP. They likewise
deliberately or negligently ignored or failed to observe the physical evidence of the
previous first attack on Bronson, on February 10, 2010. Moreover, none of the CCA
Defendants acted to prevent gang members from escalating their campaign of violence
that culminated in Bronson’s murder.
107.

At approximately 8:30 a.m. on February 18, Defendant Clark unlocked

some or all of the SHIP II cell doors, including the door to Bronson’s cell. She then
began to supervise the dayroom, beginning with a visit to her office. While in her office,
she could not adequately supervise the dayroom and she left the rest of the cell block
completely unattended.
108.

Several prisoners distracted Defendant Clark with questions or requests

during the period immediately after 8:30 a.m., when she was in her office. Plaintiffs are
informed and believe and thereon allege that other prisoners started fights to distract
CCA Correctional Officers stationed elsewhere in SCF, including Defendant Trejo, to
prevent them from intervening in the planned attack on Bronson.

27
[600586-2]

109.

While these distractions were occurring, Maugaotega and Kanahele entered

Bronson’s unlocked cell and attacked him, punching him, pushing him off the top bunk,
stepping on his neck, stabbing him approximately 140 times with two different weapons,
and carving the name of their gang into his flesh. Bronson died from his injuries.
Maugaotega and Kanahele disposed of the weapons, showered, and washed their bloody
clothes.
110.

At approximately 9:20 a.m., Defendant Clark discovered Bronson’s body

while letting prisoners back into their cells from the dayroom.
111.

Police reports filed after the murder describe copious amounts of blood on

the walls and floor of the cell. The floor was so coated in Bronson’s blood that CCA
nurses who responded to the scene had to kneel on blankets from the cell’s bedding in
order to position themselves to attempt CPR.
112.

As a direct and proximate result of the acts and/or omissions of Defendants,

Plaintiff’s decedent BRONSON NUNUHA, and his estate, suffered the following injuries
and damages:
a.

Wrongful death, attributable to the deliberate indifference,

negligence, and/or gross negligence of Defendants;
b.

Egregious pain and suffering and emotional distress;

c.

Violation of his right to substantive due process, freedom from

deprivation of life without due process, as guaranteed by the Fourteenth Amendment to
the United States Constitution;
d.

Cruel and unusual punishment, as forbidden by the Eighth

Amendment to the United States Constitution.
113.

As a direct and proximate result of the acts and/or omissions of Defendants,

Plaintiffs BRANDY NUNUHA-TACHERA, DAVINA WAIALAE, and Z.L.S., suffered
the following injuries and damages:
a.

Violation of their First Amendment right to freedom of association;

28
[600586-2]

b.

Violation of their due process rights under the Fourteenth

Amendment to the United States Constitution;
c.

Needless physical pain and suffering, emotional distress, hardship,

suffering, shock, worry, anxiety, sleeplessness, illness, trauma, suffering, and the loss of
the services, society, care, and protection of the decedent;
d.

Loss of financial support and contributions, loss of the present value

of future services and contributions, and loss of economic security;
e.

Loss of society, companionship, comfort, consortium, and

f.

Loss of care, attention, advice, and counsel;

g.

Loss of filial care and attention;

h.

Loss of parental care, training, guidance, or education;

i.

Emotional trauma and suffering, including fear, extreme emotional

protection;

distress, and horror;
j.

Burial expenses of the deceased; and

k.

Attorney’s fees and costs.
FIRST CLAIM FOR RELIEF
Wrongful Death – HRS § 663-3
(Against All Defendants)

114.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 113,

115.

BRONSON NUNUHA died as a direct and proximate result of the

above.

wrongful acts, omissions, or defaults of Defendants, and each of them.
116.

As a direct result of BRONSON NUNUHA’s wrongful death, Plaintiffs

ESTATE OF BRONSON NUNUHA, BRANDY NUNUHA-TACHERA, DAVINA
WAIALAE, and Z.L.S. suffered pecuniary injury and loss of society, companionship,
comfort, and/or protection.
117.

As a direct result of BRONSON NUNUHA’s wrongful death, Plaintiff
29

[600586-2]

DAVINA WAIALAE suffered pecuniary injury, including loss of filial care and
attention.
118.

As a direct result of BRONSON NUNUHA’s wrongful death, Plaintiff

BRANDY NUNUHA-TACHERA lost her best friend, the brother who took her to the
beach and taught her how to throw a football. She suffered pecuniary injury, including
loss of the ability to work due to her emotional devastation after her brother’s death.
119.

As a direct result of BRONSON NUNUHA’s wrongful death, Plaintiff

Z.L.S suffered pecuniary injury, including loss of parental care, training, guidance, and
education. Plaintiff Z.L.S. lost the opportunity to receive future support payments from
BRONSON NUNUHA.
120.

Defendants are jointly and severally liable for the wrongful death of

BRONSON NUNUHA, and liable to all Plaintiffs for substantial general and special
damages as described above, in an amount to be proved at trial.
121.

Plaintiffs are entitled to recover punitive damages against CCA and its

officers, managers, employees, and agents named as individual Defendants herein who,
with conscious disregard of BRONSON NUNUHA’s rights, failed to provide him with
supervision and security meeting the professional standard of practice and failed to
adhere to the legal mandates of prisoner supervision, resulting in his wrongful death and
injuries to the Plaintiffs. The aforementioned acts of Defendants CCA, JESUS GUILIN,
CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED TREJO,
BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and DOES 16
through 30 were willful, wanton, malicious, and oppressive, thereby justifying an award
to Plaintiffs of exemplary and punitive damages to punish the wrongful conduct alleged
herein and to deter such conduct in the future.

30
[600586-2]

SECOND CLAIM FOR RELIEF
(Negligence/ Gross Negligence)
(Survival Actions – Hawaii State Law)
(Against All Defendants)
122.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 121,

123.

At all times relevant herein, every Defendant had a duty to exercise

above.

ordinary care for the safety of prisoners in the SHIP at SCF, including BRONSON
NUNUHA.
124.

Every Defendant breached that duty, leading directly to BRONSON

NUNUHA’s death and injuries to the Plaintiffs. Every Defendant failed to use that care
which a reasonable person would use to avoid injury to BRONSON NUNUHA.
BRONSON NUNUHA’s injuries, and his wrongful death, were the reasonably
foreseeable outcome of Defendants’ acts and omissions. The acts and/or omissions of
each Defendant were substantial factors in bringing about BRONSON NUNUHA’s
injuries, his wrongful death, and the accompanying damage to Plaintiffs.
A.

Negligence/Gross Negligence of Hawaii, DPS, and Hawaii Officials
125.

At all times relevant herein, Defendants STATE OF HAWAII, HAWAII

DEPARTMENT OF PUBLIC SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON
FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE
BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO,
and DOES 1 through 15 had a duty to exercise ordinary care for the safety of Hawaii
prisoners.
126.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached that duty by housing BRONSON NUNUHA at SCF.

31
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127.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE, LARRY HALES,
MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15 breached their duty to
BRONSON NUNUHA by failing to exercise control over staffing and security provided
for by their contract with Defendant CCA.
128.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by failing to ensure that Defendant CCA
properly classified prisoners, separating violent criminals from mere property offenders.
129.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by failing to ensure that CCA separated
prisoners based on gang affiliation.
130.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by allowing CCA to house him with
known prison gang leaders with a history of violence against other prisoners.
131.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,

32
[600586-2]

LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by continuing to contract with CCA, and
by abdicating their responsibility to oversee security matters at CCA facilities, especially
after prior incidents involving Hawaii prisoners and prison gangs in 2005 and 2007.
132.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by failing to ensure that he was transferred
to another housing unit after complaining that prison gang members had threatened him.
133.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by failing to observe or respond to the
injuries he sustained on or about February 10, 2010.
134.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1 through 15
breached their duty to BRONSON NUNUHA by creating the environment that resulted
in his preventable wrongful death on February 18, 2010.
135.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK and JOE W.
BOOKER, JR. had a duty to properly hire, train, supervise and/or retain employees and
agents to take reasonable precautions to preserve the safety of Hawaii prisoners at SCF.
Defendants breached this duty by negligently hiring, training, supervising, and/or

33
[600586-2]

retaining persons who acted with deliberate indifference and/or negligence and/or gross
negligence, resulting in BRONSON NUNUHA’s death, including some or all of DOES 1
through 15.
136.

Defendants JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE

W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO,
CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO, and DOES 1
through 15 acted outside the scope of their employment. Therefore Defendants STATE
OF HAWAII, HAWAII DEPARTMENT OF PUBLIC SAFETY, JODIE F. MAESAKAHIRATA, CLAYTON FRANK, and JOE W. BOOKER, JR breached their duty to
properly hire, supervise, and/or train employees and agents to act reasonably to preserve
the safety of Hawaii prisoners at SCF. They are liable to Plaintiffs for negligent
supervision, hiring, and/or training under Hawaii law.
137.

Alternatively, Defendants JODIE F. MAESAKA-HIRATA, CLAYTON

FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE
BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO,
and DOES 1 through 15 were engaged and acting within the scope of their employment,
and Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC
SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, and JOE W.
BOOKER, JR are liable for said conduct under the doctrine of respondeat superior,
and/or through ratification.
B.

Negligence/Gross Negligence of CCA and CCA Employees and Agents
138.

At all times relevant herein, Defendant CCA had a duty to exercise

ordinary care for the safety of prisoners in its custody.
139.

Defendant CCA breached that duty by housing BRONSON NUNUHA at

SCF while failing to exercise proper control over staffing and security.
140.

Defendant CCA breached its duty to BRONSON NUNUHA by requiring

him to participate in the SHIP, and placing him in disciplinary segregation when he

34
[600586-2]

refused.
141.

Defendant CCA breached its duty to BRONSON NUNUHA by failing to

adequately staff the SHIP with Correctional Officers or other security personnel.
142.

Defendant CCA breached its duty to BRONSON NUNUHA by failing to

properly classify prisoners, and by failing to separate violent criminals from mere
property offenders.
143.

Defendant CCA breached its duty to BRONSON NUNUHA by failing to

separate prisoners based on gang affiliation.
144.

Defendant CCA breached its duty to BRONSON NUNUHA by housing

him with known prison gang leaders with a history of violence against other prisoners.
145.

Defendant CCA breached its duty to BRONSON NUNUHA by failing to

ensure that he was transferred to another housing unit after complaining that prison gang
members had threatened him.
146.

Defendant CCA breached its duty to BRONSON NUNUHA by failing to

note or respond to the injuries he sustained on or about February 10, 2010.
147.

Defendant CCA breached its duty to BRONSON NUNUHA by creating the

environment that resulted in his preventable wrongful death on February 18, 2010.
148.

At all times relevant herein, Defendant CLARK had a duty to exercise

ordinary care for the safety of prisoners in the SHIP at SCF, including BRONSON
NUNUHA.
149.

Defendant CLARK breached her duty to BRONSON NUNUHA by failing

to ensure that he was transferred to another housing unit after complaining that prison
gang members had threatened him.
150.

Defendant CLARK breached her duty to BRONSON NUNUHA by failing

to observe or respond to the injuries he sustained on or about February 10, 2010.
151.

Defendant CLARK breached her duty to BRONSON NUNUHA by failing

to perform “standing head counts” in the SHIP between February 10, 2010 and February

35
[600586-2]

18, 2010, which would have led to the discovery of Bronson’s injuries.
152.

Defendant CLARK breached her duty to BRONSON NUNUHA by

opening the door to his cell and leaving it unlocked on February 18, 2010, then retreating
to her office and failing to adequately supervise the unit during dayroom time.
153.

As a direct and proximate result of the breaches of duty committed by

Defendant CLARK, Plaintiffs sustained substantial general and special damages, in an
amount to be proved at trial.
154.

Defendant CCA had a duty to properly hire, train, supervise and/or retain

employees and agents to supervise Hawaii prisoners at SCF. Defendants NYOKA
CLARK; CHRISTINE FRAPPIEA; JESUS GUILIN; FRANK GARCIA; TIMOTHY
DOBSON; ALFRED TREJO; BEN GRIEGO; KALUM KALANI; TODD THOMAS;
SEAN MEINER; and/or DOES 16 through 30 acted outside the scope of their
employment and caused harm to Plaintiffs. Therefore Defendant CCA breached its duty,
and is liable to Plaintiffs for negligent supervision, hiring, and/or training.
155.

Alterntatively, Defendants NYOKA CLARK; CHRISTINE FRAPPIEA;

JESUS GUILIN; FRANK GARCIA; TIMOTHY DOBSON; ALFRED TREJO; BEN
GRIEGO; KALUM KALANI; TODD THOMAS; SEAN MEINER; and/or DOES 16
through 30 were engaged and acting within the scope of their employment, and
Defendant CCA is liable for said conduct under the doctrine of respondeat superior,
and/or through ratification.
156.

As a direct and proximate result of Defendants’ breach of duty, Plaintiffs

suffered substantial general and special damages in an amount to be proved at trial.
157.

Defendants are jointly and severally liable to all Plaintiffs for general and

special damages, in an amount to be proved at trial.
158.

Plaintiffs are entitled to recover punitive damages against CCA and its

officers, managers, employees, and agents named as individual Defendants herein who,
with conscious disregard of BRONSON NUNUHA’s rights, failed to provide him with

36
[600586-2]

supervision and security meeting the professional standard of practice and failed to
adhere to the legal mandates of prisoner supervision, resulting in his wrongful death and
injuries to the Plaintiffs. The aforementioned acts of Defendants CCA, JESUS GUILIN,
CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED TREJO,
BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and DOES 16
through 30 were willful, wanton, malicious, and oppressive, thereby justifying an award
to Plaintiffs of exemplary and punitive damages to punish the wrongful conduct alleged
herein and to deter such conduct in the future.
THIRD CLAIM FOR RELIEF
Violation of HRS § 353H-7
(Against Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC
SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W.
BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO,
CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO, DOES 1
through 15, and CCA)
159.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 158,

160.

Pursuant to HRS § 353H-7, Defendants STATE OF HAWAII, HAWAII

above.

DEPARTMENT OF PUBLIC SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON
FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE
BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO,
DOES 1 through 15, and CCA were required to return BRONSON NUNUHA to Hawaii
on or before October 31, 2009.
161.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER,
JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, DOES 1 through 15, and CCA
had the authority and the ability to return BRONSON NUNUHA to Hawaii on or before
October 31, 2009, but did not return BRONSON NUNUHA to Hawaii at any point before

37
[600586-2]

his death on February 18, 2010.
162.

By failing to return BRONSON NUNUHA to Hawaii, Defendants STATE

OF HAWAII, HAWAII DEPARTMENT OF PUBLIC SAFETY, JODIE F. MAESAKAHIRATA, CLAYTON FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT
JINBO, JEANETTE BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN
TITO, SHARI KIMOTO, DOES 1 through 15, and CCA violated HRS § 353H-7.
163.

As a direct and proximate result of this failure, BRONSON NUNUHA was

exposed to the dangerous conditions that caused his death on February 18, 2010. Had
Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC SAFETY,
JODIE F. MAESAKA-HIRATA, CLAYTON FRANK, JOE W. BOOKER, JR.,
TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, DOES 1 through 15, and CCA
complied with HRS § 353H-7 and returned BRONSON NUNUHA to Hawaii,
BRONSON NUNUHA would not have been killed at SCF on February 18, 2010.
164.

As a direct and proximate result of the aforementioned actions and/or

omissions, Plaintiffs suffered injuries and damages as alleged herein due to the death of
BRONSON NUNUHA.
FOURTH CLAIM FOR RELIEF
Cruel and Unusual Punishment – Haw. Const. Art. I, Sec. 12
(Against all Defendants)
165.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 164,

166.

Defendants, and each of them, were deliberately indifferent to BRONSON

above.

NUNUHA’s health and safety.
167.

As a result of Defendants’ acts, omissions, policies, customs, and/or

practices, BRONSON NUNUHA suffered cruel and unusual punishment in violation of
Article I, Section 12 of the Hawaii Constitution.
168.

Such policies, customs and/or practices include, but are not limited to, an
38

[600586-2]

ongoing pattern of deliberate indifference to: the safety and security of SCF prisoners,
SHIP participants, and BRONSON NUNUHA; the failure to ensure appropriate
classification procedures were followed; the failure to segregate gang members from rival
gang members or unaffiliated prisoners; the failure to provide adequate staffing at SCF in
general and the SHIP in particular; the requirement that Hawaii prisoners participate in
the SHIP and the use of disciplinary segregation to punish those who refuse to
participate; the failure to prevent violent altercations, or to detect or respond to the
injuries resulting from such altercations; and the failure to ensure that cell doors were
locked during dayroom time and that SHIP units were adequately supervised during
dayroom time.
169.

Defendants STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC

SAFETY, CLAYTON FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT
JINBO, JEANETTE BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN
TITO, SHARI KIMOTO, CCA, JESUS GUILIN, CHRISTINE FRAPPIEA, FRANK
GARCIA, TIMOTHY DOBSON, ALFRED TREJO, BEN GRIEGO, KALUM KALANI,
TODD THOMAS, SEAN MEINER, and DOES 1 through 30 tacitly encouraged, ratified,
and/or approved of the acts and/or omissions alleged herein, and knew that such conduct
was unjustified and would result in violations of constitutional rights.
170.

The customs, policies, and/or practices of all Defendants were a direct and

legal cause of Plaintiffs’ injuries and the death of BRONSON NUNUHA. Defendants
STATE OF HAWAII, HAWAII DEPARTMENT OF PUBLIC SAFETY, CLAYTON
FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE
BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO,
CCA, JESUS GUILIN, CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY
DOBSON, ALFRED TREJO, BEN GRIEGO, KALUM KALANI, TODD THOMAS,
SEAN MEINER, and DOES 1 through 30 failed to adequately train and supervise their
employees and/or agents to prevent the occurrence of the constitutional violations

39
[600586-2]

suffered by Plaintiffs and BRONSON NUNUHA, and by other prisoners at SCF.
Defendants CLAYTON FRANK, JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT
JINBO, JEANETTE BALTERO, CAROL PAYNE, LARRY HALES, MAUREEN
TITO, SHARI KIMOTO, CCA, JESUS GUILIN, CHRISTINE FRAPPIEA, FRANK
GARCIA, TIMOTHY DOBSON, ALFRED TREJO, BEN GRIEGO, KALUM KALANI,
TODD THOMAS, SEAN MEINER, and DOES 1 through 30 also failed to promulgate
appropriate policies or procedures or take other measures to prevent the constitutional
violations suffered by Plaintiffs and BRONSON NUNUHA, and by other prisoners at
SCF.
171.

As a direct and proximate result of the aforementioned customs, policies,

and/or practices of Defendants, Plaintiffs suffered injuries and damages as alleged herein
due to the death of BRONSON NUNUHA.
172.

The aforementioned acts of Defendants CCA, JESUS GUILIN,

CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED TREJO,
BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and DOES 16
through 30 were willful, wanton, malicious, and oppressive, thereby justifying an award
to Plaintiffs of exemplary and punitive damages to punish the wrongful conduct alleged
herein and to deter such conduct in the future.
FIFTH CLAIM FOR RELIEF
Substantive Due Process – Haw. Const. Art. I – Sec. 5
(Against all Defendants)
173.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 172,

174.

By acting or failing to act as described above, by being deliberately

above.

indifferent to BRONSON NUNUHA’s safety, by violating BRONSON NUNUHA’s civil
rights, by failing to properly hire, train, and/or supervise their employees and agents,
and/or by failing to take other measures at SCF to prevent the untimely and wrongful
death of BRONSON NUNUHA, Defendants deprived Plaintiffs DAVINA WAIALAE
40
[600586-2]

and Z.L.S. of their liberty interest in the parent-child relationship in violation of their
substantive due process rights as defined by Article I, Section 5, of the Hawaii
Constitution.
175.

As a direct and proximate result of the aforementioned acts and/or

omissions of Defendants, Plaintiffs suffered injuries and damages as alleged herein due to
the death of BRONSON NUNUHA.
176.

The aforementioned acts and/or omissions of Defendants CCA, JESUS

GUILIN, CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED
TREJO, BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and
DOES 16 through 30 were willful, wanton, malicious, and oppressive, thereby justifying
an award of exemplary and punitive damages, to punish the wrongful conduct alleged
herein and to deter such conduct in the future.
SIXTH CLAIM FOR RELIEF
Cruel and Unusual Punishment in Violation of the Eighth and Fourteenth
Amendments to the Constitution of the United States – Deliberate Indifference to
Health and Safety
(42 U.S.C. § 1983)
(Against all Defendants, except STATE OF HAWAII and HAWAII
DEPARTMENT OF PUBLIC SAFETY)
177.

Plaintiffs reallege and incorporate by reference Paragraphs 1 through 176,

178.

Defendants knew that there was a strong likelihood that BRONSON

above.

NUNUHA was in danger of serious personal harm, and that he would be seriously
injured or killed, because:
a.

Prison gang members, including some of the same individuals

placed in SHIP II with BRONSON NUNUHA, committed gang-related violent assaults
against other Hawaii prisoners in CCA facilities in 2005 and 2007;
b.

Defendants possessed records showing the criminal history and

violent tendencies of Maugaotega, Kanahele, and other prison gang members;

41
[600586-2]

c.

BRONSON NUNUHA repeatedly complained of threats from prison

gang members, and requested a transfer for his own safety;
d.

Defendant NYOKA CLARK was on duty when a prisoner struck

BRONSON NUNUHA a week before his death;
e.

BRONSON NUNUHA had visible injuries, including black eyes,

following that attack; and
f.

Defendant NYOKA CLARK had been previously disciplined for

leaving a cell door open, leading to an attack on an SCF prisoner.
179.

Defendants failed to provide adequate supervision for BRONSON

NUNUHA. They repeatedly and egregiously disregarded his pleas for help, and left him
largely unsupervised in a 50-person cell block filled with violent gang members wishing
to harm him.
180.

Defendants’ acts and/or omissions as alleged herein, including but not

limited to their failure to provide BRONSON NUNUHA with adequate supervision
and/or to take other measures to protect him from physical harm and to prevent his brutal
murder, along with the acts and/or omissions of the Defendants in failing to properly hire,
train, supervise, and/or promulgate appropriate policies and procedures at SCF in order to
prevent BRONSON NUNUHA’s death and other prisoner deaths, constituted deliberate
indifference to BRONSON NUNUHA’s safety.
181.

By the acts and omissions described above, Defendants acted with

deliberate indifference to a known or obvious danger, in subjecting BRONSON
NUNUHA to that danger. Defendants left BRONSON NUNUHA in a situation that was
considerably more dangerous – indeed, life-threatening, and ultimately fatal – than the
one in which they found him.
182.

The aforementioned acts and/or omissions of Defendants in being

deliberately indifferent to BRONSON NUNUHA’s health and safety and violating
BRONSON NUNUHA’s civil rights were the direct and proximate result of customs,

42
[600586-2]

practices, and policies of Defendants CLAYTON FRANK, JOE W. BOOKER, JR.,
TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, CCA, JESUS GUILIN,
CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED TREJO,
BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and DOES 1
through 30.
183.

Such policies, customs and/or practices include but are not limited to an

ongoing pattern of deliberate indifference to: the safety and security of SCF prisoners,
SHIP participants, and BRONSON NUNUHA; the failure to ensure appropriate
classification procedures were followed; the failure to segregate gang members from rival
gang members or unaffiliated prisoners; the failure to provide adequate staffing at SCF in
general and the SHIP in particular; the requirement that Hawaii prisoners participate in
the SHIP and the use of disciplinary segregation to punish those who refuse to
participate; the failure to prevent violent altercations, or to detect the injuries resulting
from such altercations; and the failure to ensure that cell doors were locked during
dayroom time and that SHIP units were adequately supervised during dayroom time.
184.

Defendant CCA tacitly encouraged, ratified and/or approved of the acts

and/or omissions alleged herein, and knew that such conduct was unjustified and would
result in violations of constitutional rights.
185.

Defendants CLAYTON FRANK, JOE W. BOOKER, JR., TOMMY

JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE, LARRY
HALES, MAUREEN TITO, SHARI KIMOTO, CCA, JESUS GUILIN, CHRISTINE
FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED TREJO, BEN
GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and DOES 1 through
30 tacitly encouraged, ratified and/or approved of the acts and/or omissions alleged
herein, and knew that such conduct was unjustified and would result in violations of
constitutional rights.

43
[600586-2]

186.

The customs, policies and/or practices of Defendants CLAYTON FRANK,

JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO,
CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO, CCA, JESUS
GUILIN, CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY DOBSON, ALFRED
TREJO, BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and
DOES 1 through 30 were a direct and legal cause of Plaintiffs’ injuries and the death of
BRONSON NUNUHA in that Defendants CLAYTON FRANK, JOE W. BOOKER, JR.,
TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO, CAROL PAYNE,
LARRY HALES, MAUREEN TITO, SHARI KIMOTO, CCA, CHRISTINE
FRAPPIEA, JESUS GUILIN, FRANK GARCIA, TIMOTHY DOBSON, ALFRED
TREJO, BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN MEINER, and
DOES 1 through 30 failed to adequately train and supervise their employees and/or
agents to prevent the occurrence of the constitutional violations suffered by Plaintiffs and
BRONSON NUNUHA, and by other prisoners at SCF. Defendants CLAYTON FRANK,
JOE W. BOOKER, JR., TOMMY JOHNSON, SCOTT JINBO, JEANETTE BALTERO,
CAROL PAYNE, LARRY HALES, MAUREEN TITO, SHARI KIMOTO, CCA,
CHRISTINE FRAPPIEA, JESUS GUILIN, FRANK GARCIA, TIMOTHY DOBSON,
ALFRED TREJO, BEN GRIEGO, KALUM KALANI, TODD THOMAS, SEAN
MEINER, and DOES 1 through 30 also failed to promulgate appropriate policies or
procedures or take other measures to prevent the constitutional violations suffered by
Plaintiffs and BRONSON NUNUHA, and by other prisoners at SCF.
187.

As a direct and proximate result of Defendants’ conduct, BRONSON

NUNUHA experienced physical pain, severe emotional distress, mental anguish, loss of
his life, and the damages alleged herein.
188.

The aforementioned acts and/or omissions of the individual Defendants

named herein were malicious, reckless and/or accomplished with a conscious disregard of
decedent’s rights thereby entitling Plaintiffs to an award of exemplary and punitive

44
[600586-2]

damages, to punish the wrongful conduct alleged herein and to deter such conduct in the
future.
SEVENTH CLAIM FOR RELIEF
Failure to Properly Supervise, Hire and Train
(Survival Action – 42 U.S.C. § 1983)
(Against Defendants CCA, JESUS GUILIN; CHRISTINE FRAPPIEA; FRANK
GARCIA; TIMOTHY DOBSON; ALFRED TREJO; BEN GRIEGO; KALUM
KALANI; TODD THOMAS; SEAN MEINER; and DOES 16 through 30)
189.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 188,

190.

The aforementioned acts and/or omissions of Defendants in being

above.

deliberately indifferent to BRONSON NUNUHA’s safety and violating his civil rights
were the direct and proximate result of the customs, practices, and policies of Defendants
CCA, JESUS GUILIN, CHRISTINE FRAPPIEA, FRANK GARCIA, TIMOTHY
DOBSON, ALFRED TREJO, BEN GRIEGO, KALUM KALANI, TODD THOMAS,
SEAN MEINER, and DOES 16 through 30, as alleged herein.
191.

Such policies, customs, and/or practices include but are not limited to: an

ongoing pattern of deliberate indifference to the safety of SCF prisoners, SHIP
participants, and BRONSON NUNUHA; the failure to ensure appropriate classification
procedures were followed; the failure to segregate gang members from rival gang
members or unaffiliated prisoners; the failure to provide adequate staffing at SCF in
general and the SHIP in particular; the requirement that Hawaii prisoners participate in
the SHIP and the use of disciplinary segregation to punish those who refuse to
participate; the failure to prevent violent altercations, or to detect the injuries resulting
from such altercations; and the failure to ensure that cell doors were locked during
dayroom time and that SHIP units were adequately supervised during dayroom time.
192.

Defendants CCA, JESUS GUILIN, CHRISTINE FRAPPIEA, FRANK

GARCIA, TIMOTHY DOBSON, ALFRED TREJO, BEN GRIEGO, KALUM KALANI,
TODD THOMAS, SEAN MEINER, and DOES 16 through 30, tacitly encouraged,

45
[600586-2]

ratified and/or approved of the acts and/or omissions alleged herein, and knew that such
conduct was unjustified and would result in violations of constitutional rights.
193.

The customs, policies, and/or practices of said Defendants were a direct and

legal cause of Plaintiffs’ injuries and the death of BRONSON NUNUHA in that
Defendants failed to adequately hire, train, and supervise their employees and/or agents
to prevent the occurrence of the constitutional violations suffered by Plaintiffs and
BRONSON NUNUHA, and by other SCF prisoners and SHIP participants. Defendants
also failed to promulgate appropriate policies or procedures or take other measures to
prevent the constitutional violations suffered by Plaintiffs and BRONSON NUNUHA,
and by other SCF prisoners and SHIP participants.
194.

As a direct and proximate result of the aforementioned customs, policies

and/or practices of Defendants, Plaintiffs suffered injuries and damages as alleged herein
due to the death of BRONSON NUNUHA.
195.

The aforementioned acts and/or omissions of the individual Defendants

named herein were willful, wanton, malicious, and oppressive, thereby justifying an
award of exemplary and punitive damages to punish the wrongful conduct alleged herein
and to deter such conduct in the future.
EIGHTH CLAIM FOR RELIEF
Loss of Freedom of Association in Violation of First Amendment
to the Constitution of the United States
(42 U.S.C. § 1983)
(Against all Defendants, except STATE OF HAWAII and HAWAII
DEPARTMENT OF PUBLIC SAFETY)
196.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 195,

197.

The aforementioned acts and/or omissions of Defendants in being

above.

deliberately indifferent to BRONSON NUNUHA’s safety and violating his civil rights
and their failure to train, supervise and/or take other measures at SCF to prevent the
conduct that caused the untimely and wrongful death of BRONSON NUNUHA and

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deprived Plaintiffs DAVINA WAIALAE, BRANDY NUNUHA-TACHERA, and Z.L.S.
of their right to familial association as protected by the First Amendment to the United
States Constitution.
198.

The First Amendment protects certain intimate human relationships that

presuppose deep attachments and commitments to the necessarily few other individuals
with whom one shares not only a special community of thoughts, experiences, and beliefs
but also distinctively personal aspects of one’s life. BRONSON NUNUHA was one such
individual for BRANDY NUNUHA-TACHERA. Only a year apart in age, they were
best friends and shared many cherished childhood experiences together. BRANDY
NUNUHA-TACHERA remained in contact with BRONSON NUNUHA after his
incarceration, and spoke to him by video conference only a month before he died. Losing
him was and continues to be devastating for her.
199.

As a direct and proximate result of the aforementioned acts and/or

omissions of Defendants, Plaintiffs suffered injuries and damages as alleged herein due to
the death of BRONSON NUNUHA.
200.

The aforementioned acts and/or omissions of the individual Defendants

named herein were willful, wanton, malicious, and oppressive, thereby justifying an
award of exemplary and punitive damages, to punish the wrongful conduct alleged herein
and to deter such conduct in the future.
NINTH CLAIM FOR RELIEF
Substantive Due Process in Violation of Fourteenth Amendment
to the Constitution of the United States – Loss of Parent/Child Relationship
(42 U.S.C. § 1983)
(Against all Defendants, except STATE OF HAWAII and HAWAII
DEPARTMENT OF PUBLIC SAFETY)
201.

Plaintiffs re-allege and incorporate by reference paragraphs 1 through 200,

202.

The aforementioned acts and/or omissions of Defendants in being

above.

deliberately indifferent to BRONSON NUNUHA’s safety and violating his civil rights

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and their failure to train, supervise and/or take other measures at SCF to prevent the
conduct that caused the untimely and wrongful death of BRONSON NUNUHA and
deprived Plaintiffs DAVINA WAIALAE and Z.L.S. of their liberty interest in the parentchild relationship in violation of their substantive due process rights as defined by the
Fourteenth Amendment to the United States Constitution.
203.

As a direct and proximate result of the aforementioned acts and/or

omissions of Defendants, Plaintiffs suffered injuries and damages as alleged herein due to
the death of BRONSON NUNUHA.
204.

The aforementioned acts and/or omissions of the individual Defendants

named herein were willful, wanton, malicious, and oppressive, thereby justifying an
award of exemplary and punitive damages, to punish the wrongful conduct alleged herein
and to deter such conduct in the future.
PRAYER FOR RELIEF
WHEREFORE Plaintiffs pray for relief against Defendants as follows:
1.

For compensatory, general, and special damages against each Defendant,

jointly and severally, in the amount proven at trial;
2.

For damages related to loss of familial relations as to Plaintiffs BRANDY

NUNUHA-TACHERA, DAVINA WAIALAE, and Z.L.S.,
3.

For funeral and burial expenses, and incidental expenses not yet fully

ascertained;
4.

For general damages in an amount greater than $25,000, including damages

for physical and emotional pain, emotional distress, hardship, suffering, shock, worry,
anxiety, sleeplessness, illness and trauma and suffering, the loss of the services, society,
care and protection of the decedent, as well as the loss of financial support and
contributions, loss of the present value of future services and contributions, and loss of
economic security;
5.

For prejudgment interest;

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6.

For punitive and exemplary damages against the individual Defendants, as

set forth herein, in an amount appropriate to punish them and deter others from engaging
in similar misconduct;
7.

For costs and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988, HRS

§ 662-12, the Hawaii private attorney general doctrine, and as otherwise authorized by
any other statute or law; and
8.

For such other relief as the Court may deem proper.

DATED: February 15, 2012

Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION OF
HAWAII

By:
Daniel M. Gluck
Attorneys for Plaintiffs
ESTATE OF BRONSON NUNUHA, et al.

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