Fondled Hawaiian Transexual Prisoner Awarded $817,500 in Damages and Attorney Fees

by Matt Clarke

On March 18, 2008, Hawaiian First Circuit Court Judge Sabrina S. McKenna awarded a pre-operative transgendered prisoner who had been sexually abused and harassed by a prison guard at the O’ahu Community Correctional Center (OCCC) $310,000 in damages and $507,500 in attorney fees. The 13-year-old case had already been largely affirmed by the Supreme Court of Hawaii.

The OCCC prisoner identified by the pseudonym Kimberly was placed in the men’s section of OCCC after her arrest on drug charges in 1993. At the time, she was a pre-operative transgendered person with prominent breasts, male genitalia and a female “self-identity and outward appearance.”

Dana Lynn Taylor, an OCCC guard under unit supervisor Harry Tanouye, had been fired when an administrative committee of the Department of Public Safety (DPS) found that, “while in uniform and away from his post without leave, Taylor had purchased and consumed cocaine, and kidnapped and sexually assaulted a prisoner who was on supervised release.” Taylor was reinstated when the administrative finding was overturned on procedural grounds in 1992. OCCC’s chief of security then sent OCCC Deputy Administrator Kenneth Saito a memo stating that Taylor had allegedly twice previously assaulted and raped a woman while off-duty. The memo recommended referring the matter to the DPS Internal Affairs (IA) Office, but this was not done.

Taylor twice fondled Kimberly’s breasts without her consent on different days. Kimberly filed a grievance. Taylor then retaliated against Kimberly by arbitrary detention and multiple public strip searches in the view of other prisoners with instructions for Kimberly to “squat and cough,” a technique used to dislodge contraband from the vagina which is ineffectual for prisoners with male genitalia. Taylor also made loud comments about Kimberly in front of other prisoners and guards such as, “Those are some big tits!” Taylor was subsequently ordered not to have any further contact with Kimberly.

Tanouye investigated Kimberly’s grievance and told her he considered breast fondling a minor infraction because her breasts weren’t a sexual or private part of her body and he did not consider unwanted contact of a male prisoner by a male guard to be a serious issue.

Taylor ignored the no-contact order on several occasions, showing up in Kimberly’s work and living areas and giving her intimidating looks. Kimberly complained. This resulted in a meeting with Tonouye during which she was “convinced that she was not going to get any help” from him. She then filed a complaint with the Honolulu Police Department (HPD) and wrote multiple letters to the warden, state ombudsman and DPS director.

Tanouye urged Kimberly not to pursue the HPD complaint, threatening possible repercussions. He then told the OCCC section administrator that Taylor had accepted counseling on the matter. The OCCC acting chief of security sent Saito a memorandum criticizing Tanouye’s handling of the case and stating that an official investigation should have been conducted. Saito, then acting warden, also criticized Tanouye’s investigation and directed him to follow it up and advise him of what action had been taken. However, Saito never prohibited Taylor’s assignment to Kimberly’s housing area.

On March 8, 1993, Tanouye finally issued an official report on the fondling incident, but indicated that no action had been taken against Taylor. He recommended counseling for Taylor if the incident was substantiated and failed to address Kimberly’s other grievances. The next day, Taylor refused to make a written statement about the incident, but was not reprimanded or disciplined by Tanouye.

Finally, on March 24, 1993, the warden requested an IA investigation of the fondling incident. The IA report substantiated Kimberly’s allegations. However, no action was taken against Taylor.

On November 18, 1993, Kimberly was released from OCCC when the charges against her were dropped. OCCC finally fired Taylor in late 1993 after he was busted by the feds in a crystal meth sting operation at a shopping mall. Sentenced to five years in prison, he was released in 1999.

In 1995, Kimberly filed suit in Hawai’i circuit court. The suit was referred to an arbitration program. The state appealed from the sealed arbitration award and requested a trial.

The court granted summary judgment on the issue of punitive damages to Hawai’i, Tanouye and OCCC Warden Hall and sanctioned the state for failing to turn over discovery documents as ordered by the arbitration subpoena. For this “gross misconduct” the court entered default against the state on liability, ordered production of the discovery documents at the state’s expense, ordered the state to pay Kimberly $7,500 in attorney fees and sanctioned the state’s attorney $150. It also upheld the previous granting of summary judgment in Kimberly’s favor and the award of $410,000.00 in punitive damages, apportioning the award among the various defendants and granting pre- and post-judgment interest. Defendants appealed. Kimberly cross-appealed.

The Supreme Court of Hawai’i upheld the trial court in all but two aspects: (1) events predating March 1, 1993, were time barred by a two-year statute of limitations and could not form the basis of actual or punitive damage awards and (2) post-judgment interest could not accrue against the state until after the appeals were completed. Upholding the determination on liability, it reversed the award of damages and returned the case to the trial court for recalculation of damages based on its opinion.

In a 94-page judgment strongly criticizing the Attorney General’s office, the trial court ordered the state and Taylor to each pay $150,000 in general damages and Tanouye to pay $10,000. It awarded $7,500.00 in attorney fees for the state’s discovery abuse, ordered the state’s attorney to pay a $150 sanction to a charity of defendant’s choice, and awarded Kimberly reasonable attorney fees, estimated at $500,000.

Carl Varady, Kimberly’s attorney, noted the absurdity of the state employing a guard known to have previously used cocaine while in uniform and who had sexually assaulted several women.

“It is even more offensive that the state, the supervisory employees and the deputy attorney general assigned to this case attempted to cover up the abuse,” Varady said.
Offensive indeed, and typical too. See: Kimberly v. State, 116 P.3d 7 (2005) (Supreme Court opinion). Additional source: Honolulu Advertiser.

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