Kauhako v. State of Hawaii Board of Education Department Of Education et al

Filing 45

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 37 MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS. Signed by JUDGE DERRICK K. WATSON on 2/3/2015. ~ Defendants Motion for Judgment on the Pleadings is DENIED in part and GRAN TED in part. (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

ANGELICA J. KAUHAKO,
individually and as parent and next
friend of her minor child, MARIANA
DOE,
Plaintiff,

CIVIL NO. 13-00567 DKW-BMK
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR PARTIAL
JUDGMENT ON THE PLEADINGS

vs.
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, NELSON SHIGETA,
individually and as principal of Waianae
High School, KRISTIN LINDQUIST,
individually and as care coordinator of
Waianae High School, DOE
DEFENDANTS 1-10,
Defendants.
________________________________
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, NELSON SHIGETA,
individually and as principal of Waianae
High School, and KRISTIN
LINDQUIST, individually and as care
coordinator of Waianae High School,
Defendants and
Third-Party Plaintiffs,

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vs.

RUSTON TOM; DOE DEFENDANTS
1-10,
Third-Party Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
INTRODUCTION
Kauhako alleges that Ruston Tom, an adult male special needs student,
repeatedly sexually assaulted her minor daughter, Mariana Doe, also a special needs
student, while under the care and supervision of the DOE at Waianae High School.
Shigeta is the principal and Lindquist is the student care coordinator at Waianae.
Because Kauhako sufficiently pleads a Title IX and premises liability claim, the
DOE’s motion as to Counts I and III is DENIED. The Motion is GRANTED in all
other respects, as set forth below.
BACKGROUND
Kauhako alleges that in December 2012, during school hours, Mariana was
harassed, bullied, molested and ultimately raped by a male student since identified
as Third Party Defendant, Ruston Tom. Complaint ¶ 9; Dkt. No. 11 (November 7,

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2013 First Amended Third Party Complaint). Both Mariana and Tom are special
education students at Waianae High School. Kauhako further alleges that the rape
occurred “when [Doe and Tom] had gone off-campus while school was in session.”
Complaint ¶ 10. According to Kauhako, Defendants were notified of the incident
and “a meeting was held between Defendants and Plaintiff’s mother to address the
incident, the need for Defendants to monitor and supervise Plaintiff and the other
special needs students closely, and to monitor and protect Plaintiff from being
molested again.” Complaint ¶¶ 11.
Despite this meeting, Kauhako alleges that Tom raped and sexually assaulted
Doe “several more times in a bathroom designated by school officials as ‘coed’ on
the campus of the Waianae High School.” Complaint ¶¶ 12-13. She contends that
the rapes continued because Defendants negligently and/or intentionally failed to
properly monitor and supervise her daughter and other special needs students at the
school. Id. Specifically, Kauhako claims the DOE violated a duty of care to take
all reasonable steps under the circumstances to protect such students, including
making “access to the bathrooms gender-restrictive.” Complaint ¶¶ 21-22.
The complaint sets forth the following claims for relief: (1) violation of Title
IX, 20 U.S.C. § 1681(a), based on student-on-student sexual harassment (Count I);
(2) a 42 U.S.C. § 1983 claim for violation of the Fourteenth Amendment and Title
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IX (Count II); (3) premises liability (Count III); (4) sexual assault and battery (Count
IV); (5) negligent supervision of students (Count V); (6) negligent hiring, training,
and/or supervision of school staff (Count VI); (7) negligence (Count VII); (8) gross
negligence (Count VIII); (9) willful and wanton conduct/reckless disregard (Count
IX); (10) intentional infliction of severe emotional distress (“IIED”) (Count X); (11)
negligent infliction of emotional distress (“NIED”) (Count XI); (12) and a
respondeat superior claim against the DOE (Count XII). Defendants seek
judgment on the pleadings as to Counts I, II, III, IV, VI, IX, and XII.1
STANDARD
Defendants seek partial judgment on the pleadings pursuant to Fed.R.Civ.P.
12(c). That rule states: “After the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the pleadings.” The standard
governing a Rule 12(c) motion is “functionally identical” to that governing a Rule
12(b)(6) motion. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637
F.3d 1047, 1054 n.4 (9th Cir. 2011). “Judgment on the pleadings under Rule 12(c)

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Defendants have not moved with respect to Count V (negligent supervision of students); Count
VIII (gross negligence); Count X (IIED); or Count XI (NIED). Defendants’ notice of motion
identifies Count VII (negligence) as one of the counts on which Defendants seek judgment. See
Dkt. No. 37 at 3. Defendants’ memorandum, however, does not address Count VII and omits any
reference to Count VII in the “relief requested” by Defendants. Accordingly, the Court construes
Defendants’ notice as in error and motion as inapplicable to Count VII, and will not address Count
VII any further in this order.

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is proper when the moving party establishes on the face of the pleadings that there is
no material issue of fact and that the moving party is entitled to judgment as a matter
of law.” Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control
Dist., 644 F.3d 934, 937 n.1 (9th Cir. 2011).
Under to Ashcroft v. Iqbal, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 555
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.

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DISCUSSION
I.

Claims Dismissed by Stipulation
In her opposition brief, Kauhako states that she does not oppose the Motion as

to Count II (Section 1983); Count IV (Sexual Assault and Battery); Count VI
(Negligent Hiring, Training and/or Supervision); Count IX (Willful and Wanton
Conduct/Reckless Disregard); and Count XII (Respondeat Superior, Agency
Liability and/or Vicarious Liability). Dkt. No. 41 at 3. In fact, at oral argument,
Kauhako’s counsel stipulated to the dismissal of these Counts against all
Defendants. Accordingly, the Court does not further address these Counts in this
order. The Court turns to the remaining claims upon which Defendants have
moved, and which are opposed – Counts I and III.
II.

Count I: Title IX
A.

Kauhako States a Title IX Claim Against the DOE

Defendants argue that Count I fails to state a claim under Title IX because the
DOE was not deliberately indifferent to known acts of sexual harassment and there
are no allegations that it intentionally failed to intervene to stop the harassment.
The DOE is correct that Title IX prohibits intentional discrimination. See
Alexander v. Sandoval, 532 U.S. 275, 280 (2001) (holding that Title VI, upon which

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Title IX is based, prohibits only intentional discrimination). The statute provides,
in pertinent part:
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.
20 U.S.C. § 1681(a). A school’s failure to respond to student-to-student sexual
harassment can constitute intentional discrimination for purposes of Title IX in
certain “limited circumstances.” See Davis Next Friend LaShonda D. v. Monroe
County Bd. of Educ., 526 U.S. 629, 643 (1999).
In order to state a prima facie case under Title IX, a plaintiff must allege that:
(1) the sexual harassment was so severe, pervasive, and objectively offensive that it
could be said to deprive the plaintiff of access to educational opportunities or
benefits; (2) the defendant had actual knowledge of the sexual harassment; and (3)
the defendant was deliberately indifferent to the harassment. See Reese v. Jefferson
Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000); Lopez v. Regents of University
of Cal., 5 F. Supp. 3d 1106, 1120-22 (N.D. Cal. 2013); see also Williams v. Bd. of
Regents of Univ. System of Ga., 477 F.3d 1282, 1296 (11th Cir. 2007) (holding that a
Title IX plaintiff at the motion to dismiss stage must allege that the Title IX

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recipient’s deliberate indifference to the initial discrimination subjected the plaintiff
to further discrimination).
Significantly, where a Title IX claim is predicated on a student’s sexual
harassment, actual notice on the part of the federal funding recipient is critical
because “it is the deliberate failure to curtail known harassment, rather than the
harassment itself, that constitutes the intentional Title IX violation.” Mansourian v.
Regents of University of Cal., 602 F.3d 957, 967 (9th Cir. 2010). “The actual notice
requirement under Title IX is satisfied where an ‘appropriate official possessed
enough knowledge of the harassment that it reasonably could have responded with
remedial measures to address the kind of harassment upon which plaintiff’s legal
claim is based.’” Lopez, 5 F. Supp. 3d at 1122-23 (quoting Folkes v. N.Y. College
of Osteopathic Medicine, 214 F. Supp. 2d 273, 285 (E.D.N.Y. 2002)).
Defendants assert their entitlement to judgment on the pleadings because
there “are no factual assertions that there had ever been any assaults or other
problems on campus by the male student or in this ‘coed’ bathroom.” Reply at 8.
Such allegations, however, are not required. In this case, the complaint alleges that
after the first time Mariana was “attacked by the male student . . . when they had
gone off-campus while school was in session,” a meeting was held between
Kauhako and Defendants. Complaint ¶ 10. Specifically: “Defendants were
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notified of the incident, and a meeting was held between Defendants and the
Plaintiff’s mother to address the incident, the need for Defendants to monitor and
supervise Plaintiff and the other special needs students closely, and to monitor and
protect Plaintiff from being molested again.” Complaint ¶ 10. Despite having
actual notice of the alleged sexual harassment that occurred off-campus during
school hours, Kauhako alleges that “Defendants failed, neglected, and/or refused to
provide proper monitoring and supervision,” and “[a]s a result, Plaintiff was
subsequently raped and sexually assaulted by the same male student several more
times in a bathroom designated by school officials as ‘coed’ on the campus of the
Waianae High School.” Complaint ¶¶ 12-13.
Count I, in other words, expressly alleges that Defendants “intentionally
violated Title IX by acting with deliberate indifference to acts of harassment in the
State’s school programs or activities of which [it] had actual knowledge,” and that
the “State failed, neglected, and/or refused to investigate and/or to put an end to the
harassment.” Complaint ¶¶ 27, 30.

It quite clearly alleges intentional conduct

with actual advanced knowledge by the Defendants, not merely a negligent failure to
intervene. See Mem. in Supp. at 5-6; cf. Lopez, 5 F. Supp. 3d at 1122-23 (“The
Complaint does not allege the student informed University officials of the incidents.
In fact, Plaintiffs’ allegations that students who knew of Lumbreras’ conduct failed
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to report it, militates against a finding that the U.C. Regents had actual knowledge of
that conduct.”). Moreover, the Court rejects Defendants’ suggestion that prior
notice of the initial off campus sexual assault was not sufficient to alert school
officials to the subsequent assaults that occurred on campus. According to the
Complaint, Defendants were aware of the very same conduct occurring between the
very same actors during school hours in close temporal proximity to the initial
incident. To hold that notice of that severe and objectively offensive incident is
insufficient for purposes of stating a prima facie case under Title IX, merely because
subsequent incidents did not occur in the same precise location, would amount to a
cramped reading of the statute and its interpretive law.
B.

Count I Fails to State a Claim Against Shigeta and Lindquist

Kauhako, however, cannot state a Title IX claim against Shigeta and
Lindquist, individual employees of the DOE. A plaintiff can only state a Title IX
claim against institutional recipients of federal funding – here, the DOE. Lopez v.
Regents of University of Cal., 5 F. Supp. 3d 1106, 1120 (N.D. Cal. 2013).
Accordingly, Defendants’ Motion for Judgment on Count I is DENIED as it
relates to the DOE and GRANTED as to Shigeta and Lindquist individually.

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III.

Count III: Premises Liability
Defendants claim entitlement to judgment on the pleadings on Count III

because a premises liability claim does not apply to a coed bathroom on a public
school campus. They maintain that a premises liability claim is “based on the
condition of the land,” and not “who is allowed to use a bathroom.” Mem. in Supp.
at 8. Kauhako counters that she states a premises liability claim because
Defendants may be liable for allowing a “condition or activity to exist on the land
that he [or she] knows or has reason to know poses an unreasonable risk of harm.”
Mem. in Opp. at 6. She asserts that “Defendants knew or should have known that
designating only a single bathroom [for] both male and female special education
students was a recipe for disaster for Mariana Doe[.]” Id.
For a negligence claim based on premises liability, the Hawaii
Supreme Court has held:
if a condition exists upon the land which poses an
unreasonable risk of harm to persons using the land, then
the possessor of the land, if the possessor knows, or should
have known of the unreasonable risk, owes a duty to the
persons using the land to take reasonable steps to
eliminate the unreasonable risk, or adequately to warn the
users against it.
Corbett v. Ass’n of Apartment Owners of Wailua Bayview
Apartments, 70 Haw. 415, 417, 772 P.2d 693, 695 (1989)). In
other words, “an owner or occupant of the land will be liable for
a plaintiff’s injury if the owner or occupant was previously put
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on actual or constructive notice of an unreasonably unsafe
condition that caused the injury.” Campos v. United States,
2008 WL 2230717, at *5 (D. Haw. May 30, 2008) (citing Harris
v. State, 1 Haw.App. 554, 557, 623 P.2d 446, 448 (1981)). “The
owner or occupant is put on constructive notice of the unsafe
condition if it existed for such a period of time that the owner or
occupant should have been able to detect it through the exercise
of reasonable diligence.” Id. (citing Hascup v. City & County of
Honolulu, 2 Haw.App. 639, 640, 638 P.2d 870, 872 n.1 (1982)).
Mohler v. Kipu Ranch Adventures, LLC, 2014 WL 5817538, at *8 (D. Haw. Nov. 7,
2014).
The complaint alleges that:
Defendants had actual or constructive notice that Plaintiff
required special assistance and was vulnerable, that the
bathroom was made “coed” allowing access to boys and girls,
. . . and that Plaintiff on several prior occasions was harassed,
abused, terrorized and/or molested by the same male student.
Despite their knowledge and awareness of these dangerous
and/or hazardous conditions on school property, Defendants
failed, neglected and/or refused to take reasonable action to
protect Plaintiff from harm.
Complaint ¶¶ 41-42.
The Hawaii Supreme Court explains the duty of a landowner as follows:
This court has generally declined to impose a duty on
landowners to protect against the criminal acts of a third party,
inasmuch as, “under ordinary circumstances, criminal acts are
not reasonably to be expected, and are so unlikely in any
particular instance that the burden of taking continual
precautions against them almost always exceeds the apparent
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risk.” Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw.
158, 162, 829 P.2d 512, 515 (1992). However, when there is a
“special relationship” between a landowner and someone on its
property, the landowner has a duty to protect the person from the
criminal acts of third parties if those criminal acts are
“reasonably foreseeable.” Id. at 163–65, 829 P.2d at 515–16;
Maguire, 79 Hawai‘i at 113–15, 899 P.2d at 396–98.
Moyle v. Y & Y Hyup Shin, Corp., 118 Hawai‘i 385, 392, 191 P.3d 1062, 1069
(2008).
The Restatement (Second) of Torts § 314A (1965), cited with approval by
Hawaii Courts, in part covers conduct by third parties who may be present on the
property. See, e.g., Grosvenor Properties, 73 Haw. at 166, 829 P.2d at 516 (finding
that the “landlord-tenant relationship does not fall within the terms of Restatement, §
314A(3)”); Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 386, 742 P.2d 377,
384 (1987) (relying on Restatement (Second) of Torts § 314(A) (1965) to establish
the duty of innkeeper to guest “to take reasonable action to protect the latter against
unreasonable risk of physical harm”). A comment to this section states in part:
“The duty to protect the other against unreasonable risk of harm extends to risks
arising out of the actor’s own conduct, or the condition of his land or chattels. It
extends also to risks arising from forces of nature or animals, or from the acts of
third persons, whether they be innocent, negligent, intentional, or even criminal.”

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Restatement (Second) of Torts § 314A, cmt. d. (1965). Another comment discusses
the scope of the landowner’s duty of reasonable care as follows:
The duty in each case is only one to exercise reasonable care
under the circumstances. The defendant is not liable where he
neither knows nor should know of the unreasonable risk, or of
the illness or injury. He is not required to take precautions
against a sudden attack from a third person which he has no
reason to anticipate, or to give aid to one whom he has no reason
to know to be ill. He is not required to take any action where the
risk does not appear to be an unreasonable one, as where a
passenger appears to be merely carsick, and likely to recover
shortly without aid.
Restatement (Second) of Torts § 314A, cmt. e. (1965).
Defendants offer no authority for the proposition that a premises liability
claim is barred as a matter of law in cases with analogous factual allegations. In
fact, recent Hawaii case law suggests that such claims may be viable, where a special
relationship exists between a property owner and an invitee. In Victor v. Koga, 131
Hawai‘i 253, 317 P.3d 69 (Ct. App. 2014), the Hawaii Intermediate Court of
Appeals (“ICA”) affirmed summary judgment for landowners sued by the parents of
a minor who was sexually assaulted by an occupant of the defendants’ residence.
The Victors alleged four counts against the homeowners, each of which alleged a
duty on the part of the landowners to plaintiffs’ minor child, and a subsequent breach
of that duty. The trial court granted summary judgment in favor of the defendant

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Kogas on all of the counts against them, holding that there was no legal duty owed
by the Kogas to the Victors, that there was no special relationship between the
Kogas and the minor, that there was no notice to the Kogas that Nonaka, the alleged
assailant, had any dangerous propensities, and that the incidents were not
foreseeable to the Kogas. The ICA agreed, distinguishing Atahan v. Muramoto, 91
Hawai‘i 345, 984 P.2d 104 (Ct. App. 1999), a case that concerned landowners who
make land or water areas available to the public, and addressed which type of
“invitees” such a landowner may have liability toward. In Victor, the ICA observed
that “[n]othing in the record, however, indicates that the Kogas held the Property
open to the public.” Id. (citing Cuba v. Fernandez, 71 Haw. 627, 633, 801 P.2d
1208, 1211 (1990) (“[T]o hold one’s land open to the public requires some
affirmative action signaling that entry is desired rather than simply disregarded.”);
Restatement (Second) of Torts § 332 cmt. b (1965) (“[A]n invitation is conduct
which justifies others in believing that the possessor desires them to enter the
land.”)). As a result, the ICA concluded that “the fact that the Kogas owned the
Property and that Nonaka invited Minor to enter the Property does not create a
special relationship between the Kogas and Minor for the purpose of establishing
premises liability.” Id. (citing Restatement (Second) of Torts § 314A (1965)).

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Based on this Court’s reading of Victor and similar cases, a premises liability
claim is not foreclosed under similar circumstances where a special relationship
exists between a landowner and victim, and the criminal assault by a third-party is
reasonably foreseeable under the circumstances. The DOE did have a special
relationship with Mariana as well as with Tom, two of the special needs students it
supervised, and the DOE was aware, at least according to the Complaint, of at least
one prior assault of Mariana by Tom that was criminal in nature. This is not a case
where the property condition at issue was merely a co-ed bathroom, and any attempt
to frame it as such mischaracterizes the Complaint. The Court’s conclusion is
supported by other Hawaii cases involving landowner liability for the criminal acts
of a third person. See, e.g., Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw.
158, 162, 829 P.2d 512, 515 (1992) (finding no duty on building owner to protect
employee of tenant from attack by third-party in building elevator, where no special
relationship existed between building owner and plaintiff and the sexual assault was
not reasonably foreseeable under the circumstances); Maguire v. Hilton Hotels
Corp., 79 Hawai‘i 110, 899 P.2d 393 (1995) (vacating summary judgment for hotel
property owner where plaintiff was business visitor of hotel and issues of fact
existed as to reasonable foreseeability of criminal attacks by third parties); see also
Panion v. United States, 385 F. Supp. 2d 1071 (D. Haw. 2005) (finding that
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government breached duty to hospital patient who was sexually assaulted by
hospital staff, and awarding damages based on the hospital’s negligence).
In short, Defendants provide no authority that a claim for premises liability
will not lie under the circumstances alleged here. Accordingly, the Motion as to
Count III is DENIED as to the DOE. To the extent Kauhako attempts to state a
premises liability claim against Shigeta and Lindquist individually – neither of
whom are alleged to be landowners or occupants in control or possession of the
property2 – the Motion on Count III is GRANTED.
IV.

Claims Against Shigeta and Lindquist
First, to the extent Kauhako alleges claims against Shigeta and Lindquist in

their official capacities, those claims are duplicative of her claims against the DOE.
Accordingly, Shigeta and Lindquist are entitled to judgment on the pleadings for the
claims against them in their official capacities. See, e.g., Wong v. City & Cnty. of
Honolulu, 333 F. Supp. 2d 942, 947 (D. Haw. 2004) (dismissing both federal and
state law claims against individuals in their official capacities).
Second, to the extent Kauhako alleges claims against Shigeta and Lindquist in
their individual capacities in Counts I and III, they are entitled to judgment on the

2

The complaint alleges that “Waianae High School is, and was at all relevant times herein, owned
and maintained by the State.” Complaint ¶ 14.

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pleadings, for the reasons set forth above. Kauhako’s Title IX claim (Count I) and
premises liability claim (Count III) remain against the DOE only.
CONCLUSION
Based on the foregoing, Defendants’ Motion for Judgment on the Pleadings is
DENIED in part and GRANTED in part.
IT IS SO ORDERED.
Dated: February 3, 2015 at Honolulu, Hawai’i.

Kauhako v. State of Hawaii; Civil No. 13-00567 DKW-BMK; ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR PARTIAL JUDGMENT ON THE PLEADINGS

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