Toguchi v. Matayoshi et al

Filing 90

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS 20 , 34 , 59 . Signed by JUDGE DERRICK K. WATSON on 12/31/2014. ~ The Court hereby grants the motions to dismiss Counts 1 through 4 and the motio n for judgment on the pleadings (Dkt. Nos. 20, 34, and 59). Toguchi is granted leave to amend Counts 1 and 3 in conformity with this order. Any amended complaint shall be filed by January 30, 2015. Failure to file an amended complaint by January 30, 2015 will result in the automatic dismissal of this action without further notice. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

MONICA TOGUCHI, individually and
as the personal representative of the
estate of Charles Anthony Lee, II,
Plaintiff,
vs.
KATHRYN MATAYOSHI, et al.,

CIVIL NO. 13-00380 DKW-KSC

ORDER GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS AND FOR JUDGMENT
ON THE PLEADINGS

Defendants.

ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS
Monica Toguchi’s First Amended Complaint (“FAC”) asserts four official
and individual capacity claims against various State of Hawai‘i defendants whom
she holds responsible for the suicide of her son, Charlie. Because a Section 1983
claim may not be based on an alleged violation of Section 504 of the Rehabilitation
Act or of the Individuals with Disabilities Education Act (“IDEA”), and because
Toguchi fails to state a claim of negligent infliction of emotional distress
(“NIED”), the Court dismisses with prejudice Counts 2 and 4 of the FAC. The
Court also dismisses Counts 1 (Section 504 violation) and 3 (intentional infliction

of emotional distress (“IIED”)), with leave to amend, because they lack the
requisite specificity needed to state a claim.
BACKGROUND
Shortly after moving to Hawai‘i in 2007, Charlie began attending fifth grade
at Mililani Uka Elementary School. Toguchi “requested special education services
for her son because Charlie had a difficult time adjusting to his new life in Hawaii
and to Mililani Uka Elementary School.” FAC ¶ 16. Toguchi alleges that
although Charlie was transferred to Mililani Middle School to address some of his
behavioral problems, he finished his sixth grade year without any notable issues.
FAC ¶ 18.
Starting with his seventh grade year, Charlie began cutting himself. He
continued to do so, despite hospitalization at Queen’s Medical Center. During his
eighth grade year, Charlie received in-home intensive therapy from the Department
of Health (“DOH”). FAC ¶¶ 19–20. Toguchi alleges that Charlie’s behavioral
problems escalated:
Charlie locked himself in Plaintiff’s car with a knife and refused to
attend school and on another occasion stood on top of a three story
building and threatened to jump. Following both of these incidents
Charlie was taken to Queen[’]s Medical Center for treatment.
FAC ¶¶ 24–25.
During this time, Toguchi alleges that she expressed concern to individuals
at the DOH and to individuals on Charlie’s Individual Education Program (“IEP”)
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team, to the effect that the programs in place were insufficient to address Charlie’s
problems. Despite these expressions, Toguchi alleges that the DOH discontinued
Charlie’s in-home therapy after five months and thereafter “only provided minimal
care management services” for Charlie “even though it was clear that Charlie still
needed those or other mental health services.” FAC ¶ 27–28.
Toguchi alleges that Charlie’s behavior continued to decline as he
transitioned to his ninth grade year at Roosevelt High School, and that defendants
continued to do little or nothing in response to address his escalating problems.
According to Toguchi:
At the initial IEP meeting which occurred on August 18, 2011, the
Defendants failed and refused to consider or provide the level of
intensive and/or residential care that Charlie required based upon his
long history of self[-]abusive behaviors and his most recent
difficulties adjusting to a new school.
Following the initial IEP meeting Charlie continued to cut himself and
threatened to commit suicide by hanging.
Although Plaintiff regularly voiced her concerns regarding Charlie’s
threats to take his own life, the threats were not taken seriously by any
of the Defendants, who instead began to reduce Charlie’s services.
FAC ¶¶ 31–33 (paragraph numbering omitted).
Because of Charlie’s poor school attendance record, he was placed at Home
Maluhia, where the DOH initially provided Multi Systemic Treatment (“MST”).
Even this, however, did not meet Toguchi’s expectations because she believed that
Charlie required residential treatment. Regardless, the DOH shortly thereafter
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terminated the MST, allegedly because, without an IEP, “Charlie could not be in
Home Maluhia and be receiving MST at the same time.” On the evening of
November 6, 2011, the same day that he was released from Home Maluhia (after
being there for two weeks), Charlie committed suicide. FAC ¶¶ 34–37.
Toguchi generally asserts that Defendants: “did nothing to change the IEP to
help Charlie benefit from his education”; “knowingly, deliberately, and repeatedly
failed to determine the educational and related services necessary”; “failed to
assure that the programs and/or services provided to Charlie resulted in significant
learning and/or improvement in his mental health”; “failed to take appropriate
corrective actions”; “had knowledge that it was substantially likely that their acts
and failures to act . . . would jeopardize Charlie’s federally protected rights to have
meaningful access to education and reasonable accommodations and could
potentially result in Charlie harming himself”; and “proximately caus[ed] Charlie’s
death at the age of fourteen.” FAC ¶¶ 38–43.
The FAC asserts four claims: violation of § 504 of the Rehabilitation Act
against all defendants in their official capacities (Count 1); a 42 U.S.C. § 1983
claim against all defendants in their individual capacities, for violations of § 504 of
the Rehabilitation Act and for violations of the IDEA (Count 2); and IIED (Count
3) and NIED (Count 4) against all defendants in unspecified capacities.

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Defendants have filed motions to dismiss the FAC and a motion for
judgment on the pleadings.
STANDARD OF REVIEW
Rule 12(b)(6) permits a motion to dismiss for failure to state a claim upon
which relief can be granted. Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the
court to infer “the mere possibility of misconduct” do not constitute a short and
plain statement of the claim showing that the pleader is entitled to relief as required
by Rule 8(a)(2). Id. at 679.
Federal Rule of Civil Procedure 12(c) permits parties to move for judgment
on the pleadings after the pleadings are closed. Fed. R. Civ. P. 12(c). “Analysis
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under Rule 12(c) is ‘substantially identical’ to analysis under Rule 12(b)(6)
because, under both rules, ‘a court must determine whether the facts alleged in the
complaint, taken as true, entitle the plaintiff to a legal remedy.’” Chavez v. United
States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quoting Brooks v. Dunlop Mfg. Inc.,
No. 10-04341 CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9, 2011)).
For a Rule 12(c) motion, the allegations of the nonmoving party are accepted
as true, while any contradictory allegations of the moving party are assumed to be
false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir.
2006). “The Court inquires whether the complaint at issue contains ‘sufficient
factual matter, accepted as true, to state a claim of relief that is plausible on its
face.’” Harris v. Cnty. of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Therefore, “‘[a] judgment on the
pleadings is properly granted when, taking all the allegations in the non-moving
party’s pleadings as true, the moving party is entitled to judgment as a matter of
law.’” Marshall Naify Revocable Trust v. United States, 672 F.3d 620, 623 (9th
Cir. 2012) (quoting Fajardo v. Cnty. of L.A., 179 F.3d 698, 699 (9th Cir. 1999)).
DISCUSSION
I.

Count 1 - Section 504 of the Rehabilitation Act
Toguchi asserts that defendants, in their official capacities, “violated § 504

of the Rehabilitation Act by denying Charlie adequate, reasonable, and essential
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programs and services . . . .” and that “[t]his violation and denial of services
constituted a deliberate indifference to Charlie’s rights guaranteed by the
Rehabilitation Act . . . .” FAC ¶¶ 47–48.
Toguchi may prevail on a claim for damages under § 504:
by establishing that an organization that receives federal funds
violated § 504 intentionally or with deliberate indifference. Plaintiffs
may establish that an organization violated § 504 by showing that the
public entity discriminated against, excluded, or denied the benefits of
a public program to a qualified person with a disability. This includes
showing that the public entity denied the plaintiff a reasonable
accommodation. A violation of one of the regulations implementing
§ 504 may support a claim for damages if the violation denied the
plaintiff meaningful access to a public benefit, and the defendant
organization acted with deliberate indifference.
Mark H. v. Hamamoto, 620 F.3d 1090, 1096 (9th Cir. 2010) (internal citations and
quotation marks omitted). Although Toguchi has generally pled most of these
elements, she fails to plead with the requisite specificity required by deliberate
indifference.
“Deliberate indifference requires both knowledge that a harm to a federally
protected right is substantially likely, and a failure to act upon that likelihood.”
Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). Toguchi
generally asserts that defendants “had knowledge that it was substantially likely
that their acts and failures to act . . . would jeopardize Charlie’s federally protected
rights” and that defendants “failed to act upon that likelihood . . . .” FAC ¶¶ 42–
43. While these statements mirror the general requirements listed in Duvall,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice [to defeat a motion to dismiss].” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
What Toguchi has failed to provide is any factual content showing the
specific knowledge the defendants actually had, including Charlie’s condition and
what benefits, programs or services Defendants knew Charlie was entitled to, and
how defendants specifically failed to act on that knowledge. See Duvall, 260 F.3d
at 1139 (citing Memmer v. Marin Cty Courts, 169 F.3d 630, 633 (9th Cir. 1999))
(noting that the Ninth Circuit has previously “required the plaintiff to identify
‘specific reasonable’ and ‘necessary’ accommodations that the defendant failed to
provide” to establish deliberate indifference). Without those specifics, Count 1
fails to state a claim. The Court, however, grants Toguchi leave to amend to
provide the specific factual content necessary to state a § 504 claim for deliberate
indifference.
II.

Count 2 – Section 1983 Claims
Toguchi asserts that all defendants, acting in their individual capacities,

“violated civil rights guaranteed to Charlie by § 504 of the Rehabilitation Act,
IDEA, and 42 U.S.C. §§ 1983 . . . .” FAC § 50. Ninth Circuit law, however,
prohibits such a claim.

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“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State
official in her individual capacity to vindicate rights created by Title II of the ADA
or section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288 F.3d 1145, 1156
(9th Cir. 2002); see also Jefferies v. Albert, 2009 WL 4064799, at *7 (D. Haw.
Nov. 24, 2009) (citing Vinson and holding that “[t]he comprehensive remedial
scheme of those acts bar such claims. Further, courts addressing this issue have
found that the ADA and Rehabilitation Act provide sufficiently comprehensive
remedies for violations of plaintiff's rights, such that a plaintiff is foreclosed from
recovering under § 1983 as well.” (internal quotation marks and citation omitted)).
Consequently, Toguchi’s Section 1983 claim against the individual defendants for
violation of § 504 of the Rehabilitation Act must be dismissed with prejudice.
Similarly, “the comprehensive enforcement scheme of the IDEA evidences
Congress’ intent to preclude a § 1983 claim for the violation of rights under the
IDEA.” Blanchard v. Morton Sch. Dist., 509 F.3d 934, 938, (9th Cir. 2007).
Although neither counsel for Toguchi nor any of the defendants cited to Blanchard
in the briefing of the motions presently before the Court, it is well-established that
Toguchi may not assert a Section 1983 claim against the individual defendants
here for violations of the IDEA. See, e.g., Henry A. v. Wilden, 678 F.3d 991, 1011
(9th Cir. 2012) (“With respect to the IDEA claim, we have previously held that the
IDEA has a comprehensive enforcement scheme that forecloses enforcement
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through § 1983.” (citing Blanchard)); M.Z. v. Lake Elsinore Unified Sch. Dist., 410
Fed. Appx. 53, 54 (9th Cir. 2011) (“The district court properly dismissed
[plaintiff]’s section 1983 claims insofar as they related to the alleged denial of
rights established by the IDEA.” (citing Blanchard)); Jefferies, 2009 WL 4064799,
at *7 (quoting Blanchard and disposing of a section 1983 claim for violations of
the IDEA).
Accordingly, the Court dismisses Count 2 of the FAC with prejudice
because any amendment would be futile in light of the law in this Circuit.
III.

Count 3 – IIED
Toguchi alleges that defendants’ deprivation and withdrawal of services and

programs for Charlie was “intentional and/or reckless and outrageous and caused
Plaintiff to suffer severe emotional distress.” FAC ¶ 52. However, Toguchi has
not sufficiently pled with specificity what each defendant did, when it was done,
and why that conduct was outrageous. Consequently, Count 3 is dismissed with
leave to amend.
“[T]he tort of IIED consists of four elements: ‘1) that the act allegedly
causing the harm was intentional or reckless, 2) that the act was outrageous, and 3)
that the act caused 4) extreme emotional distress to another.’” Young v. Allstate
Ins. Co., 119 Hawai‘i 403, 429 (2008) (quoting Hac v. Univ. of Hawaii, 102

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Hawai‘i 92, 106–07 (2003)). As the Court discussed with the parties at the
November 28, 2014 hearing, the standard for an IIED claim is a very high one:
In explaining the type of “outrageous” conduct that makes a claim for
intentional infliction of emotional distress actionable, the Restatement
(Second) of Torts states:
It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
“malice,” or a degree of aggravation which would entitle the plaintiff
to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, “Outrageous!”
Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., Inc., 76 Hawai‘i 454, 465 n. 12, 879
P.2d 1037, 1048 n. 12 (1994) (quoting Restatement (Second) of Torts § 46, cmt. d.
(1965)). In other words, allegations of IIED are not merely serious, but grave.
Even in allegation form, they have the real potential to sully the reputations,
character, and ethics of those they target. Accordingly, they are not the type of
allegations that one can sufficiently plead by grouping defendants together as
Toguchi has done in the FAC. Instead, in order to adequately respond to the
allegations of serious conduct alleged by Toguchi to justify a claim of IIED, each
defendant is entitled to know, before that defendant can be expected to respond,

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what specific conduct by him or her is alleged to support the IIED claim, when that
conduct occurred, and why that conduct rises to the level of outrageous.
In its present form, the FAC simply does not provide the minimal factual
content that would allow the Court or an average community member to draw the
reasonable inference that each, or even any, defendant is liable for IIED. As such,
Count 3 fails to state a claim. The Court, however, grants Toguchi leave to amend
Count 3 to provide the specific factual content necessary to state an IIED claim.
IV.

Count 4 – NIED
Toguchi asserts that “Defendants’ negligent actions have caused immense

mental distress to Plaintiff . . . .” FAC ¶ 56. Defendants assert that Toguchi’s
NIED claim is barred by Hawaii law in that Defendants did not owe Charlie a duty
to prevent his suicide. The Court agrees and dismisses Count 4 with prejudice.
“The elements of a claim for negligent infliction of emotional distress
(“NIED”) are: (1) that the defendant engaged in negligent conduct; (2) that the
plaintiff suffered serious emotional distress; and (3) that such negligent conduct of
the defendant was a legal cause of the serious emotional distress.” Caraang v.
PNC Mortg., 795 F. Supp. 2d 1098, 1122 (D. Haw. 2011). Additionally, “[a]
prerequisite to any negligence action is the existence of a duty owed by the
defendant to the plaintiff, requiring the actor to conform to a certain standard of
conduct for the protection of others against unreasonable risks.” Lee v.
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Corregedore, 83 Hawai‘i 154, 158–159 (1996) (internal citation, quotation marks,
and brackets omitted).
Here, Toguchi cannot state an NIED claim because she cannot assert any
duty on the part of Defendants to prevent Charlie’s suicide. In general:
an actor will not be held liable for the suicide of another because
suicide constitutes an independent intervening act so extraordinary as
not to have been reasonably foreseeable by the original tortfeasor.
But, if a special relationship exists and the suicide is reasonably
foreseeable, only then would the actor be required to take action that
was reasonable under the circumstances. Therefore, without a special
relationship and foreseeability, an actor would not be legally required
to affirmatively act to prevent a suicide.
Id. at 160 (internal quotation marks and citation omitted). More specifically, in
Lee, the Hawai‘i Supreme Court concluded that -[a mental health counselor] and the State did not have custody nor
control over [the deceased prior to his suicide], and thus, they did not
share a special relationship sufficient to impose a duty of care on [the
counselor] to prevent [the deceased’s] suicide. Furthermore, there are
strong public policy considerations that weigh against recognizing tort
liability for [the counselor’s] failure to prevent [the deceased’s]
suicide. We hold that [the counselor] did not have a duty to prevent
[the deceased’s] suicide.
Id. at 172. Similarly here, the Defendants did not have custody or control over
Charlie at the time of his death, and thus they did not share a special relationship
with him that would impose a duty of care.
Toguchi’s efforts to distinguish Lee are unavailing. To the contrary, the
policy reasons behind the Hawai‘i Supreme Court’s decision in Lee are even more
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applicable in the context of this case where the defendants here are not counselors
or mental health physicians and thus would not be expected to have the same level
of mental health expertise as the counselors in Lee. At the November 28 hearing,
Toguchi’s counsel additionally asserted that defendants held a statutory duty of
care under the IDEA or § 504 of the Rehabilitation Act, removing their
responsibilities from the confines of Lee. While counsel correctly asserts that a
standard of conduct may be defined by statute, counsel did not offer, in briefing or
at the hearing, any specific statutory section of the IDEA or the Rehabilitation Act
that specifies the standards of conduct of any of the named defendants here, or any
provision by which such standards could be inferred, nor has the Court
independently found any. Toguchi’s counsel, as the attorney for the appellants in
Lee who made a similar argument for statutory duty in that case, is well aware that
“the statute must specify or imply standards or ‘requirements of conduct’ that will
create civil liability.” Lee, 83 Hawai‘i at 172. Notwithstanding this specific
awareness, however, counsel has not pointed to any provision that would impose
“standards of conduct on the part of [defendants] necessary to avoid liability for
negligence, nor can such standards of conduct be inferred from the [language of
the IDEA or Rehabilitation Act],” and the Court will not be left to guess Id.
at 173.

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The Count 4 NIED claim is dismissed with prejudice, as amendment would
be futile.
CONCLUSION
The Court hereby grants the motions to dismiss Counts 1 through 4 and the
motion for judgment on the pleadings (Dkt. Nos. 20, 34, and 59). Toguchi is
granted leave to amend Counts 1 and 3 in conformity with this order. Any
amended complaint shall be filed by January 30, 2015. Failure to file an amended
complaint by January 30, 2015 will result in the automatic dismissal of this action
without further notice.
IT IS SO ORDERED.
DATED: December 31, 2014 at Honolulu, Hawai‘i.

Monica Toguchi, et al. v. Kathryn Matayoshi, et al.; CV 13-00380 DKW/KSC;
ORDER GRANTING DEFENDANT’S MOTIONS TO DISMISS AND FOR
JUDGMENT ON THE PLEADINGS AND GRANTING LEAVE TO AMEND
COUNTS 1 AND 3

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