S-A et al v. Hawaii School District, Hilo-Waiakea Complex et al

Filing 101

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FILED ON AUGUST 22, 2017 re: 73 . Excerpt of conclusion:"[T]he Court GRANTS Defendant's Motion to Dismiss Fir st Amended Complaint Filed on August 22, 2017, ECF No. 73 . The Court dismisses the First Amended Complaint WITHOUT PREJUDICE.Plaintiffs must file an amended complaint within thirty days of the entry of this Order or else judgment will be entered against them. Any amended complaint must correct the deficiencies noted in this Order or Plaintiffs' claims may be dismissed with prejudice. In light of the Court's ruling, the Court withdraws the Motions for Summary Judgment (ECF Nos. 84 , 86 ). The parties must file any new motions for summary judgment within thirty days from the date Plaintiffs file their second amended complaint." Signed by JUDGE ALAN C. KAY on 12/18/2017. (afc)WRITTEN OR DER follows hearing held December 18, 2017 on Defendant's MOTION to Dismiss. Minutes of hearing: ECF no. 99 . 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). All participants are registered to receive electronic notifications

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
K.S-A, a minor and J.S-A, a minor )
by and through Joshua Douglas
)
Franklin, as their Guardian Ad
)
Litem
)
)
Plaintiffs,
)
v.
) Civ. No. 16-00115 ACK-KJM
)
Hawaii School District
)
)
Defendant.
)
___________________________________)
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT FILED ON AUGUST 22, 2017
For the reasons set forth below, the Court GRANTS
Defendant’s Motion to Dismiss First Amended Complaint Filed on
August 22, 2017, ECF No. 73.

The Court dismisses the First

Amended Complaint WITHOUT PREJUDICE.
PROCEDURAL BACKGROUND
On March 15, 2016, Plaintiffs K.S-A, a Native Hawaiian
minor child aged 10 years old, and J.S-A, a Native Hawaiian
minor child aged nine years old (“Plaintiffs”), by and through
Joshua Douglas Franklin, their biological father, as their
Guardian Ad Litem filed a Complaint against Hawaii School
District, Hilo-Waiakea Complex, Brad Bennett, and Erin Williams.1

1

Defendant’s Motion states that Plaintiffs previously filed
a similar lawsuit in state court on August 7, 2015, which was
(continued . . . )
1

ECF No. 1.

On the same date, Plaintiffs also filed a Motion to

Appoint Guardian Ad Litem.

ECF No. 6.

On March 23, 2016,

Magistrate Judge Barry M. Kurren granted that Motion.
23.

ECF No.

On May 13, 2016, Hawaii School District, Hilo-Waiakea

Complex, Brad Bennett, and Erin Williams filed an Answer to the
Complaint.

ECF No. 33.
On July 7, 2017, Plaintiffs filed a Motion to Amend

the Complaint, ECF No. 66, which Magistrate Judge Kenneth
Mansfield2 granted on August 21, 2017.3

ECF No. 71.

On August

22, 2017, Plaintiffs filed their First Amended Complaint (“FAC”)
solely against Defendant Hawaii School District.

ECF No. 72.

On September 1, 2017, Defendant filed a Motion to Dismiss First
Amended Complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) (“Motion”).

ECF No. 73.

On November 22,

2017, Plaintiffs filed an Opposition to Defendant’s Motion to
Dismiss (“Opposition”).

ECF No. 90.

On December 4, 2017,

Defendant filed a Reply to Plaintiffs’ Opposition (“Reply”).

dismissed on December 3, 2015 without prejudice. Motion at 1-2.
Defendant does not explain why this case was dismissed.
2
This case was reassigned from Magistrate Judge Kurren to
Magistrate Judge Mansfield on April 1, 2016. ECF No. 24.
3
The briefing on the Motion for Leave to Amend the
Complaint discussed the issue of whether Hawaii School District
is the proper party in this case. Magistrate Judge Mansfield,
however, did not rule on this issue when deciding Plaintiffs’
Motion for Leave to Amend.
2

ECF No. 92.4

The Court held a hearing on Defendant’s Motion to

Dismiss on December 18, 2017.5
FACTUAL BACKGROUND
The FAC alleges that Plaintiffs were enrolled at
public schools within the Hawaii School District, which receive
federal funding as contemplated by Title IX, 20 U.S.C. § 1681.
FAC ¶ 9.

Plaintiffs further allege that they are perceived by

other students to be gay or bisexual or to identify with being
gay or bisexual.

Id. ¶ 2.

Since 2012, Plaintiffs have been

subjected to ongoing pervasive harassment in Hawaii public
elementary schools on the basis of their perceived sexual
4

On September 18, 2017, a dispositive motions deadline of
November 8, 2017 was set. ECF No. 78. On that date, the
parties filed cross-motions for summary judgment. ECF Nos. 84,
86. On November 9, 2017, the Court entered a minute order
noting that Defendant’s motion for summary judgment appears to
raise some of the same issues as its motion to dismiss.
Compare ECF No. 73 with ECF No. 84. In light of the pending
motion to dismiss, the Court administratively withdrew the
parties’ cross-motions for summary judgment, ECF Nos. 84, 86.
The Court further stated that after Defendant’s motion to
dismiss is resolved, the cross-motions for summary judgment
shall, if appropriate, be reinstated and set for a hearing
before the Court.
In light of the Court’s ruling discussed herein, the
parties argued that the Court could withdraw the parties’
motions for summary judgment and direct the parties to refile
new motions for summary judgment, if appropriate, within thirty
days from the date Plaintiffs file their second amended
complaint.
5
Trial in this case is currently set for February 6, 2018.
ECF No. 55. The first pre-trial deadline is set for January 9,
2018. Id. At the hearing, the Court directed the parties to
meet with Magistrate Judge Mansfield to schedule a new trial
date and the related deadlines.
3

orientation and the failure to conform to gender stereotypes.
Id. ¶ 8.

Specifically, Plaintiffs have been subjected to a

constant stream of verbal abuse and harassment from other
students, being called a number of slurs related to their
sexuality.

Id. ¶ 11.
Plaintiffs allege that this persistent harassment is

often committed in the presence of Defendant’s administrators,
teachers, and counselors who fail to take appropriate required
action and instead minimize the harassment as mere name-calling.
Id. ¶ 13.

The FAC discusses in detail incidents that exemplify

this behavior.

See id. ¶¶ 14-20.

In addition to this

harassment, Plaintiffs have been subjected to physical violence.
Id. ¶¶ 22-23.
Because of this conduct, Plaintiffs’ father removed
Plaintiffs from several schools on the Island of Hawaii.
id. ¶¶ 29, 34-36, 38.

See

Before and after removing Plaintiffs from

the schools at issue, Plaintiffs’ father filed numerous
complaints about teachers and administrators with Defendant.
Id. ¶ 39.

Plaintiffs allege that Defendant has failed to

investigate these complaints and take action against teachers
and administrators who are the subject of them.

Id.

Defendant

has also denied Plaintiffs’ father geographic exemptions for his
children in retaliation for his complaints about teachers and
administrators.

Id. ¶ 41.
4

Based on the aforementioned allegations, and others,
Plaintiffs allege claims for violations of: (1) civil rights
under Title IX of the Education Amendments of 1972, 20 U.S.C. §
1681(a); (2) 42 U.S.C. § 1983 based on Plaintiffs’ equal
protection rights; (3) right to privacy; and (4) negligent
infliction of emotional distress.

Id. ¶¶ 44-92.

Most importantly, as related to this Motion,
Plaintiffs allege that Hawaii School District is part of a
state-wide education system, which is divided into seven
Districts.

Id. ¶ 3.

Each District is subdivided into Complex

Areas, which are further divided into at least one complex that
each comprise an elementary and middle school that feed into a
high school.

Id. ¶ 3.
STANDARD

I.

Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1),

a party may move to dismiss a complaint based on a lack of
subject matter jurisdiction.

“[T]he party asserting subject

matter jurisdiction has the burden of proving its
existence.”

Robinson v. United States, 586 F.3d 683, 685 (9th

Cir. 2009) (citation omitted).
A jurisdictional attack may be either facial or
factual.

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

(9th Cir. 2004).

“In a facial attack, the challenger asserts
5

that the allegations contained in a complaint are insufficient
on their face to invoke federal jurisdiction.

By contrast, in a

factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal
jurisdiction.”

Id.

“In resolving a factual attack on

jurisdiction, the district court may review evidence beyond the
complaint without converting the motion to dismiss into a motion
for summary judgment.”
II.

Id.

Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes

the Court to dismiss a complaint that fails “to state a claim
upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
8(a)(2).

Fed. R. Civ. P.

The Court may dismiss a complaint either because it

lacks a cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1988).
In resolving a Rule 12(b)(6) motion, the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as
true.

Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783
6

(9th Cir. 2012).

The complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.”

Id.

“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
When the Court dismisses a complaint pursuant to Rule
12(b)(6) it should grant leave to amend unless the pleading
cannot be cured by new factual allegations.

OSU Student All. v.

Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
DISCUSSION
The crux of Defendant’s Motion is that the “Hawaii
School District” is not an entity let alone one that is capable
of being sued.

Defendant, therefore, argues that Plaintiffs

have not stated a claim upon which relief can be granted and the
Court does not have subject matter jurisdiction.6

6

Although Defendant discusses subject matter jurisdiction
and brings the Motion pursuant to both Rules 12(b)(1) and
12(b)(6), the Court finds that the core of the Motion’s
arguments are related to plausibility under 12(b)(6). The
Court’s decision on the Motion reflects this finding.
7

Under Federal Rule of Civil Procedure 17(b), the
capacity to be sued is determined:
(1) for an individual who is not acting in a
representative capacity, by the law of the
individual’s domicile; (2) for a
corporation, by the law under which it was
organized; and (3) for all other parties, by
the law of the state where the court is
located, except that: (A) a partnership or
other unincorporated association with no
such capacity under that state’s law may sue
or be sued in its common name to enforce a
substantive right existing under the United
States Constitution or laws; and (B) 28
U.S.C. §§ 754 and 959(a) govern the capacity
of a receiver appointed by a United States
court to sue or be sued in a United States
court.
Because Defendant is neither an individual nor a corporation and
none of the exceptions in Rule 17(b)(3) apply, the Court looks
to Hawaii state law to determine whether “Hawaii School
District” has the capacity to be sued.

N Grp. LLC v. Hawai’i

Cty. Liquor Comm’n, 681 F. Supp. 2d 1209, 1233-34 (D. Haw. 2009)
(Kay, J.).

“In order for a plaintiff to sue a city department,

it must ‘enjoy a separate legal existence.’”

Darby v. Pasadena

Police Dep’t, 939 F.2d 311, 314 (5th Cir. 1991) (quoting Mayes
v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979)); cf. Owyhee
Grazing Assoc. v. Field, 637 F.2d 694, 697 (9th Cir. 1981) (“The
[Farmers Home Administration], an unincorporated department of
the federal government, is not a legal entity and may not be
sued.”).

8

Courts have noted that the State of Hawaii is unique
when it comes to its public education system because “it vests
the state, as opposed to local or county government, with the
obligation to educate its populace.”

Lindsey v. Matayoshi, 950

F. Supp. 2d 1159, 1166-67 (D. Haw. 2013); see Michael P. v.
Dep’t of Educ., 656 F.3d 1057, 1070-71 (9th Cir. 2011) (Clifton,
J., dissenting) (“Hawaii is the only state in the nation that
has placed the primary responsibility for public education on
the state itself.

It does not operate public schools through

smaller local districts . . . The Hawaii DOE . . . is the local
educational agency for Hawaii.”).7

As Judge Richard Clifton in

his dissent in Michael P. further states, “Hawaii has only one
school district.

The Hawaii DOE, together with the state Board

of Education, is responsible for making policy decisions,
performing administrative functions, and providing educational
services directly to students.”

656 F.3d at 1071.

Moreover,

pursuant to the Hawaii State Constitution, “[t]he State shall
provide for the establishment, support and control of a
statewide system of public schools[.]”
(emphasis added).

Haw. Const. art. 10, § 1

Furthermore, when a party named a Hawaii

7

This fact is further discussed on the website for Hawaii’s
public schools, which states, “The Hawaii State Department of
Education is the only statewide public school district in the
country.” Connect With Us, Hawaii State Department of
Education, http://www.hawaiipublicschools.org/ConnectWithUs
/Pages/home.aspx.
9

public charter school as a defendant, this district held that
legal liability for the judgment against the charter school
rested with the State of Hawaii because charter schools are part
of the state’s public school system.

See Lindsey, 950 F. Supp.

at 1167.
Haw. Rev. Stat. Chapter 302A, which codifies the
education system in Hawaii, demonstrates that this system is
statewide and does not feature autonomous local school
districts.

The Chapter’s definition section defines “District”

as “the state and public education system as a whole, except as
used by the department for federal compliance and reporting
requirements.”

Haw. Rev. Stat. § 302A-101.

Defendant also discusses several statutes that
illustrate that the educational system in Hawaii is a statewide
system.

For example, Haw. Rev. Stat. § 302A-1102 states that

the Department of Education “shall serve as the central support
system responsible for the overall administration of statewide
educational policy, interpretation, and development of standards
for compliance with state and federal laws, and coordination and
preparation of a systemwide budget for the public schools.”
Hawaii law further provides that the superintendent shall
administer education programs throughout the state.
Rev. Stat. § 26-12; Haw. Rev. Stat. § 302A-1111.

See Haw.

In addition,

Haw. Rev. Stat. § 302A-1128 states, in relevant part, that the
10

Hawaii Department of Education (“DOE”) has “entire charge and
control and [is] responsible for the conduct of all affairs
pertaining to public instruction in the public schools the
department establishes and operates, including operating and
maintaining the capital improvement and repair and maintenance
programs for department and school facilities.”

Furthermore,

Defendant discusses Haw. Rev. Stat. § 302A-1110 which states
that “school districts are established for administrative
purposes by the department.” (emphasis added).

Nowhere in

Chapter 302A does the Hawaii legislature place control over
public schools into autonomous districts.
Most critically, nowhere in this Chapter does it say
that the administrative districts are separate legal entities
that “may sue or be sued.”

See Darby, 939 F.2d at 314

(“[U]nless the true political entity has taken explicit steps to
grant the servient agency with jural authority, the agency
cannot engage in any litigation except in concert with the
government itself.”).

Those are precisely the terms the Hawaii

legislature has consistently used in directing that a
governmental entity is subject to suit.

See, e.g., Haw. Rev.

Stat. §§ 10-16(a) (Office of Hawaiian Affairs); 54-31 (Board of

11

Water Supply); 206E-4 (Hawaii Community Development Authority).8
The documents attached to the parties’ briefing
further support this interpretation.

Both Defendant and

Plaintiffs have submitted the DOE Plan of Organization.
Motion, Ex. A; Roy Decl. Ex. B.

See

Plaintiffs also submit the

Complex Area directory and a map of the “Hawaii District.”
Roy Decl., Exs. A, C.

See

The Court can consider these documents

without converting the instant motion to dismiss into one for
summary judgment, in part, because the court can take judicial
8

Plaintiffs argue that school districts in Hawaii have been
viewed as separate legal entities. Plaintiffs cite two cases in
support of this argument—Coffield v. Territory, 13 Haw. 478
(1901) and Doe Parents No. 1 v. State of Hawai’i, Dep’t of
Educ., 100 Haw. 34, 58 P.3d 545 (2002)—neither of which the
court finds persuasive. Coffield was decided in 1901, prior to
Hawaiian statehood, and therefore before the establishment of
Hawaii’s statewide education system. The language that
Plaintiffs quote from Doe Parents does not relate to the State
of Hawaii but instead is a quote from another case, which took
place in Idaho. Furthermore, the defendant in that case was the
DOE and the court specifically discusses the duty the DOE owes
to its students. See Doe Parents, 100 Haw. at 80, 58 P.3d at
591.
Plaintiffs also argue that there is an overwhelming amount
of case law where school districts have either brought suits or
were named as defendants. Opposition at 5-6. However, the
Court does not find these cases persuasive because, inter alia,
none of the cases cited by Plaintiffs feature Hawaii school
districts. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274 (1998) (Texas); Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1 (2004) (California); Pierce v. Santa Maria
Joint Union High Sch. Dist., 612 F. App’x 897 (9th Cir. 2015)
(California); Fairfield-Suisun Unified Sch. Dist. v. California
Dep’t of Educ., 780 F.3d 968 (9th Cir. 2015) (California). This
is a critical distinction because, as previously discussed,
Hawaii has a unique education system—it is the only statewide
public school system in the country.
12

notice of government documents available from reliable sources
on the Internet, such as websites run by the government.

See

Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011,
1033-34 (C.D. Cal. 2015).9
These documents illustrate that the DOE is divided
into fifteen complex areas, which are each supervised by a
superintendent.

Motion, Ex. A.

Public schools “are assigned,

for administrative purposes, to complex areas of one or more
school complexes, each consisting of a high school and its
feeder middle and elementary schools.”

Id. at V-1.

Under Haw.

Rev. Stat. Chapter 302A, a complex area is defined as “the
administrative unit that includes one or more complexes as
designated by the department.”

Haw. Rev. Stat. § 302A-101.

The

fifteen complex areas are further grouped by geographical areas
called districts.

Id. at A-4; F-1.

There are seven districts

within the DOE that contain the complex areas.

Id. at F-1.

On

the Island of Hawaii, the district is called “Hawaii District.”
9

The district court can consider the following without
converting a motion under Rule 12(b)(6) into one for summary
judgment: (1) documents attached to the complaint; (2) documents
incorporated by reference into the complaint; or (3) matters of
judicial notice. United States v. Ritchie, 342 F.3d 903, 907
(9th Cir. 2003).
The Court declines to consider the Declaration of Amy Kunz
attached to Defendant’s Reply in deciding the instant motion to
dismiss because it was discussed for the first time in
Defendant’s reply, the Court dismisses the case on other
grounds, and the declaration does not fit into any of the
aforementioned categories.
13

Id.
In light of the foregoing, the Court makes several
conclusions.

First, “Hawaii School District” is not an entity.

This entity appears nowhere in the statutes discussed by the
parties or in their submissions from the DOE’s website attached
to their motions.

The Court further notes that “Hawaii School

District” does not appear in any court case in the State of
Hawaii or the Ninth Circuit.

Accordingly, because the “Hawaii

School District” is not the proper party to be sued, Plaintiffs
have not made plausible allegations on any of their claims and
the Court therefore dismisses the case without prejudice.
Second, the Court finds that “Hawaii District” is not
a separate legal entity that can be sued.10

The districts have

only been set up for administrative purposes and the statewide
education system is run by the DOE.

In addition, the Hawaii

legislature has not specifically provided that the districts may
sue or be sued.

The Court further notes that it is unaware of

any cases in Hawaii or the Ninth Circuit where any of the school
districts in Hawaii were a named party.
Finally, given that “Hawaii School District” is not an
entity and the “Hawaii District” is not a legal entity that can

10

The Court declines to address the parties’ arguments
regarding whether Hawaii District receives federal funds because
it dismisses the case on other grounds as discussed herein.
14

be sued, the Court finds that the State of Hawaii, Department of
Education is the appropriate party to be sued in this case.

See

generally Campbell v. Hawaii, Dep’t of Educ., Civ. No. 13-00083
DKW, 2015 WL 1608436 (D. Haw. Apr. 10, 2015); Stucky v. Hawaii
Dep’t of Educ., Civ. No. 06-00002 JMS-LEK, 2007 WL 602105 (D.
Haw. Feb. 15, 2007); Sherez v. Hawaii Dep’t of Educ., Civ. No.
04-00390JMS/KSC, 2007 WL 602097 (D. Haw. Feb. 16, 2007); Doe ex
rel. Doe v. State of Hawaii Dep’t of Educ., 351 F. Supp. 2d 998
(D. Haw. 2004).
Although Defendant argues that Plaintiffs should not
be granted leave to amend their FAC, the Court disagrees.

When

the Court dismisses a complaint pursuant to Rule 12(b)(6) it
should grant leave to amend unless the pleading cannot be cured
by new factual allegations.

OSU Student All. v. Ray, 699 F.3d

1053, 1079 (9th Cir. 2012).

Here, the Court finds that

amendment would not be futile and the plausibility of the FAC
can be cured by adding the proper defendant.11

11

The Court,

The Court notes that Plaintiffs’ Section 1983 claim may
be subject to dismissal if Plaintiffs solely change the name of
the defendant in the complaint to the DOE without any additional
allegations. See Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.
1999) (“The Eleventh Amendment bars suits against the State or
its agencies for all types of relief, absent unequivocal consent
by the state.”) (citing Pennhurst v. Halderman, 465 U.S. 89, 100
(1984)); see also Durning v. Citibank, N.A., 950 F.2d 1419,
1422-23 (9th Cir. 1991) (stating the Eleventh Amendment bars
virtually all suits seeking relief against a state, an “arm of
the state,” or its agencies).
15

therefore, dismisses the case without prejudice and allows
Plaintiffs the opportunity to amend their FAC accordingly.
CONCLUSION
For the foregoing reasons, the Court GRANTS
Defendant’s Motion to Dismiss First Amended Complaint Filed on
August 22, 2017, ECF No. 73.

The Court dismisses the First

Amended Complaint WITHOUT PREJUDICE.
Plaintiffs must file an amended complaint within
thirty days of the entry of this Order or else judgment will be
entered against them.

Any amended complaint must correct the

deficiencies noted in this Order or Plaintiffs’ claims may be
dismissed with prejudice.
In light of the Court’s ruling, the Court withdraws
the Motions for Summary Judgment (ECF Nos. 84, 86).

The parties

must file any new motions for summary judgment within thirty
days from the date Plaintiffs file their second amended
complaint.
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, December 18, 2017

________________________________
Alan C. Kay
Sr. United States District Judge
S-A et al v. Hawaii School District, Civ. No. 16-00115 ACK-KJM, Order
Granting Defendant’s Motion to Dismiss First Amended Complaint Filed on
August 22, 2017

16