Kimes v. Matayoshi

Filing 52

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS KATHRYN MATAYOSHI, NICOLE CARLSON, BART NAKAMOTO, AND PETER TOVEYS MOTION FOR SUMMARY JUDGMENT, ECF NO. 29 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 10/16/2017. (afc) Exc erpt of conclusion: Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part. On count one of the Complaint, Judgment is GRANTED in favor of Defendants Nakamoto, Tovey, and Carlson on all counts of the complaint. Judgment is DENIED as to Matayoshi on count one of the complaint, but is GRANTED as to her on all other counts to the extent they are alleged against her. Remaining is Plaintiffs' claim against Matayoshi in her official capacit y for violation of § 504. WRITTEN ORDER follows hearing held 1/10/2017. Minutes of hearing: ECF no. 51 . 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 HAWAII

THERESA KIMES, INDIVIDUALLY
AND AS GUARDIAN AD LITEM FOR
HER MINOR DAUGHTER R.K.; AND
R.K., MINOR CHILD;
Plaintiffs,

vs.

CIV. NO. 16-00264 JMS-RLP
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS KATHRYN
MATAYOSHI, NICOLE
CARLSON, BART NAKAMOTO,
AND PETER TOVEY’S MOTION
FOR SUMMARY JUDGMENT,
ECF NO. 29

KATHRYN MATAYOSHI, IN HER
OFFICIAL CAPACITY AS
SUPERINTENDENT OF THE STATE
OF HAWAII DEPARTMENT OF
EDUCATION; NICOLE CARLSON;
BART NAKAMOTO; PETER TOVEY,
JOHN DOES 1-10,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS KATHRYN MATAYOSHI, NICOLE CARLSON, BART
NAKAMOTO, AND PETER TOVEY’S MOTION FOR SUMMARY
JUDGMENT, ECF NO. 29

I. INTRODUCTION
Plaintiff Theresa Kimes (“Kimes”), individually and on behalf of her
minor daughter R.K., (collectively “Plaintiffs”) filed this action against Kathryn
Matayoshi, Superintendent of the State of Hawaii Department of Education, Bart

Nakamoto, Peter Tovey, and Nicole Carlson, principal, vice principal, and special
education teacher, respectively, at Mokulele Elementary School (collectively
“Defendants”). Compl. ¶¶ 1-5, ECF No. 1. Plaintiffs allege that defendant
Matayoshi violated § 504 of the Rehabilitation Act in her official capacity.
Id. ¶¶ 2, 48. As to the remaining defendants, Plaintiffs allege that they violated
§ 504 of the Rehabilitation Act in their official and unofficial capacities, that they
negligently caused Kimes and R.K. to suffer emotional distress, and that
defendants Nakamoto and Tovey committed assault and battery against R.K.. Id.
¶¶ 48, 51, 54, 57. Before the court is Defendants’ Motion for Summary Judgment
as to all claims. ECF No. 29. The motion is DENIED as to the allegation in count
one of the complaint against defendant Matayoshi—violation of § 504 in her
official capacity; the motion is GRANTED as to all other defendants and all other
counts.
II. BACKGROUND
A.

General Factual Background
R.K. has multiple health and behavioral challenges, including autism

spectrum disorder and epilepsy. Compl. ¶ 9. As a result, she has received specialeducation services since the age of two, and she requires both a nurse and skills
trainer to accompany her at school. Id. ¶¶ 8, 13. Beginning in October 2012, R.K.
attended Trumpet Academy (“Trumpet”), a school run by Trumpet Behavioral
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Health, which was under contract with the Hawaii Department of Education
(“HDOE”) to provide educational services to students with special needs. Id. ¶ 12;
Ebisui Dep. 9:15-22, June 26, 2017, ECF No. 49-11. Trumpet’s contract with
HDOE ended in the summer of 2016. Id. 36:25; Compl. ¶ 12. In the fall of 2015,
R.K. began to transition to Mokulele Elementary School (“Mokulele”), where
eventually she was to be placed in a special education classroom. Compl. ¶ 12.
The transition was to happen gradually, with a projected completion date in late
March, 2016. Pl.’s Concise Statement of Material Facts (“CSMF”) Ex. 4, ECF No.
49-7. By March 10, the date of the incident giving rise to this lawsuit, R.K. was
spending two days a week at Mokulele and the remainder of her time at Trumpet.
Def.’s CSMF ¶ 5, ECF No. 30; Pl.’s CSMF at 2.
R.K.’s challenging behaviors include aggression (hitting, scratching,
biting, and kicking), self-injury (particularly punching herself in the nose and legs
and biting herself), verbal threats, and the use of profanity. Def.’s CSMF ¶ 7; Pl.’s
CSMF at 2. Cheryl Ebisui, a senior clinician for Trumpet Behavioral Health,
former administrator at Trumpet Academy, and R.K.’s behavioral specialist at
Trumpet, describes these behaviors as primarily attention seeking, explaining that
R.K. will “act out in order to receive negative attention from people, because that
is reinforcing to her.” Ebisui Resume, ECF No. 40-9; Ebisui Dep. 9:15- 10:23,
16:17-18, 19:18-21. As a result, Ebisui and the staff at Trumpet reduced the
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amount of attention R.K. would receive for engaging in such behavior. Ebisui
Dep. 19:18-23. One strategy for doing so was to avoid physically restraining R.K.,
unless she was in physical danger herself or was a danger to others. Id. 19:2421:11. Another strategy was to encourage R.K. to take short breaks away from her
learning environment so that she could calm and refocus herself when she became
frustrated, rather than “acting out in order to escape work.” Id. 22:1-18.
Trumpet’s Positive Behavior Support Plan Protocol, which was
prepared in September 2015 and updated in February 2016 included instructions on
how to react to R.K.’s verbally or physically aggressive behavior. Pl.’s CSMF Ex.
5, ECF No. 49-8. It provided that “negative attention in the form of reprimands”
should not be used, and stated that if her behavior became aggressive towards
others, “CPI approved block and move procedures” should be used, noting “at this
time [R.K.’s] intensity of aggression at [Trumpet] does not warrant the use of
restraint, especially when the function of her behavior is attention seeking.” Id. It
further instructed that, if R.K. was not in her designated work area when the
behavior occurred, staff should “NOT utilize CPI two-man transport to move her
anywhere else, as this [would] reinforce the behaviors by providing the negative
attention she is seeking.” Id. Finally, the protocol provided that “[a]ny attention
given to . . . self-injurious behaviors and attempts should be kept to a minimum.”
Id.
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Trumpet’s Crisis Plan for the 2015-2016 school year included the following
directions:
If [R.K.] swears or engages in verbal threats for more than 5 minutes,
begin clearing out the middle classroom of other students and items
(this includes [R.K.’s] desk, chairs, and work materials.)
If [R.K.’s] outburst continues to escalate into aggression towards
other students/staff, utilize CPI [Crisis Prevention Institute] approved
block and move procedures and ensure other students have been
removed from the area. At this time, [R.K.’s] intensity of aggression
at [Trumpet] does not require the use of restraint, especially when the
function of her behavior is attention seeking. If [R.K.] is targeting a
specific staff member, notify the supervisor on site to switch out
temporarily.
If the tantrum occurs at a time when [R.K.] is not in her designated
work area, keep her where she is and clear the area. Do NOT utilize
CPI two-man transport to move her anywhere else, as this will
reinforce the behaviors by providing the negative attention she is
seeking.
Should [R.K.’s] level of self-injury draws blood (e.g. hits to her nose
causing a nosebleed), provide her with a damp paper towel to wipe
herself with. Do not provide any other form of attention until she is
calm.
[R.K.] is able to verbally indicate when she is calm by stating, “I’m
ready”.

Pl.’s CSMF Ex. 6, ECF No. 49-9. These plans were provided to Mokulele in
anticipation of R.K.’s move to the school. Ebisui Dep. 18:16-18, 23:13-24:4.
On February 12, 2016, a meeting was held at Mokulele to discuss
R.K.’s behavior support plan. Pl.’s CSMF Ex. 1, ECF No. 49-2. Kimes states in
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her declaration that she had requested Trumpet staff be included in the meeting,
but none attended. Kimes Decl. ¶¶ 8-13, ECF No. 49-1. She states that Trumpet
staff told her they had received no notice or invitation to attend but that Mokulele
staff insisted notices had been sent. Id. ¶¶ 10-12. Kimes further states that she did
not agree to any changes to the behavior support plan Trumpet had been using and
that “the topic of restraint was not discussed” at the meeting. Id. ¶¶ 14-15.
Following the meeting, Mokulele prepared a Functional Behavior
Assessment and Behavior Support Plan. Pl.’s CSMF Ex. 1, ECF 49-2 at 1-2. The
assessment identifies R.K.’s “problem behaviors” and it lists “actual
consequences” for those behaviors as follows: “1. Counseled 2. Given think time 3.
Restrained 4. Notify parents.” Id. at 1. The Behavior Support Plan lists similar
consequences for undesired behavior, but in a different order: “1. Use CPI
techniques to restrain and calm 2. Redirect to task. 3. Counseled or Given think
time 4. Notify parents.” Id. at 2. Under “crisis plan,” it states: “When [R.K.] is
throwing items or hitting, or biting an adult, yelling, or swearing, she will be
restrained. If her behaviors continue for over 30 minutes, parents will be called. If
[R.K.] does not settle in a reasonable time, her parents will pick her up for the
remainder of the day.” Id.
Immediately following the March 10 incident described below,
Mokulele’s assessment and behavior support plans were modified to remove
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references to restraint, stating instead that “CPI techniques [would be used] to help
calm” and that R.K. would “be kept from hurting herself or others.” Pl.’s CSMF
Ex. 2, ECF No. 49-3.
B.

March 10, 2016 Incident
The parties disagree about the details of the events of March 10th.

The following is a description of Plaintiffs’ version of events as set out in their
opposition to the motion for summary judgment, which version is supported by the
declarations attached to Plaintiffs’ Concise Statement.
R.K. left her classroom at Mokulele while being monitored by
Chelsea Gilkey, R.K.’s nurse, and her teacher, defendant Carlson. Pl.’s Opp’n,
ECF No. 48 at 3-4. R.K. went to an outdoor stairwell where, at some point, she
attempted to climb over the railing. Id. But she then lay down in a safe position.
Id. Defendants Nakamoto and Tovey “grabbed R.K. by the arms and dragged her
down the staircase to a grassy area where R.K. began to engage in crying and selfharm.” Id. They then “grab[bed]” R.K. by her arms and legs and carried her to the
classroom, which “provoked [an] episode of crying, self-harm, bleeding, and
wheezing.” Id. In her declaration, Gilkey gives further details about restraint used
once R.K. was returned to her classroom. Gilkey Decl. ¶¶ 10-21, ECF No. 49-4.
And Ebisui opines that defendants’ handling of R.K. as described was

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inappropriate under the circumstances given her disabilities. Ebisui Dep. 34:235:11.
In her declaration, Kimes states that before the March 10 incident
R.K. was “quick to bond with her therapists and teachers,” that she was
“comfortable and free to learn,” and that R.K. “had been gaining skills and
learning to become more independent as she trusted the people who were teaching
her.” Kimes Decl. ¶ 31. Kimes contends that R.K.’s behavior changed
immediately after the incident, stating that R.K. began “isolating herself,” pleading
not to go to school, and appearing “more distrustful and challenging toward
authority figures.” Id. ¶ 32. Kimes states that R.K. has “required counseling with
a psychiatrist to address her difficulty sleeping, anxiety, depression, and fear” and
that she “continues to suffer the effects of the incident . . . in her (1) academic
progress, (2) productive therapy sessions, (3) self-help skills acquisition, and (4)
ability to make friends.” Id. ¶¶ 33, 35.
Defendants deny grabbing and dragging R.K. Answer, ECF No. 11 at
4j. They admit that they restrained R.K. but contend that they acted appropriately
to protect her. Reply at 5, ECF No. 41.
Following this incident, R.K.’s parents removed her from Mokulele.
She returned to Trumpet until the school closed and now apparently attends Pearl
Harbor Elementary. Ebisui Dep. 49:16-22; Compl. ¶ 42; Mot. at 6.
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C.

Procedural Background
Plaintiffs filed their complaint on May 26, 2016. ECF No. 1.

Defendants filed their Motion for Summary Judgment on April 26, 2017. ECF
Nos. 29, 30. Plaintiffs filed an opposition to the motion on July 10, 2017. ECF
Nos. 39, 40. And Defendants filed a Reply on July 17, 2017. ECF No. 42.
Following a July 27, 2017 status conference and based on the
agreement of the parties, the court deemed the opposition, reply, and concise
statement and declarations in support thereof withdrawn, and set a schedule for a
new opposition and reply to be filed. ECF No. 44. Plaintiffs filed an opposition on
August 25, 2017. ECF Nos. 48, 49. And Defendants filed their reply on
September 15, 2017. ECF No. 50. A hearing was held on October 10, 2017.
III. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The burden initially lies with the moving party to show that there
is no genuine issue of material fact. T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Nevertheless, “summary
judgment is mandated if the non-moving party ‘fails to make a showing sufficient
to establish the existence of an element essential to that party’s case.’” Broussard
v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999) (quoting Celotex
9

Corp. v. Catrett, 477 U.S. 317, 322 (1986)). An issue of fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
material if the resolution of the factual dispute affects the outcome of the claim or
defense under substantive law governing the case. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). When considering the
evidence on a motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986).
“One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses[. ]” Celotex, 477
U.S. at 323-24. “There is no genuine issue of fact if the party opposing the motion
‘fails to make an adequate showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.’” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (quoting
Celotex, 477 U.S. at 322). Moreover, there is no genuine issue of material fact if,
taking the record as a whole, a rational trier of fact could not find in favor of the
non-moving party. Matsushita, 475 U.S. at 586; Taylor, 880 F.2d at 1045.

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IV. ANALYSIS
Defendants contend that summary judgment should be entered in their
favor on Plaintiffs’ claims for violation of § 504 of the Rehabilitation Act because
“there is no evidence that R.K. was excluded from participating in, denied the
benefits or services of, or subject to discrimination at Mokulele solely by reason of
her disability.” Mot. at 12. They further contend that judgment in favor of
Defendants other than Matayoshi on Plaintiffs’ § 504 claims should be entered
because claims against them in their official capacities are duplicative and claims
against them in their individual capacities are improper. Id. at 10-11. Regarding
Plaintiffs’ remaining claims for assault and battery and negligent infliction of
emotional distress, Defendants contend that judgment in their favor is warranted
based on both a lack of evidence and application of the doctrine of qualified
immunity. Id. at 12-18.
As explained below, the court finds material issues of fact exist as to
whether defendant Matayoshi, in her official capacity, violated § 504 of the
Rehabilitation Act, but it agrees that Plaintiffs’ § 504 claims against the remaining
defendants are either duplicative or prohibited under the Act. The court also
agrees that defendants Nakamoto, Tovey, and Carlson are entitled qualified
immunity on Plaintiffs’ state tort claims and therefore does not address the merits
of those claims.
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A. Section 504 Claim Against Superintendent Matayoshi
Section 504 of the Rehabilitation Act provides that “[n]o otherwise
qualified individual with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance[.]” 29 U.S.C. § 794(b)(2)(B). The Ninth Circuit has explained
the “focus of the prohibition in § 504” is preventing the denial of “meaningful
access to state-provided services” to disabled persons. Mark H. v. Lemahieu, 513
F.3d 922, 937 (9th Cir. 2008) (internal quotation marks and citations omitted).
And it has held that “although § 504 does not require substantial adjustments in
existing programs beyond those necessary to eliminate discrimination against
otherwise qualified individuals, it . . . does require reasonable modifications
necessary to correct for instances in which qualified disabled people are prevented
from enjoying meaningful access to a benefit because of their disability.” Id.
(internal quotation marks, emphasis, and citations omitted). Thus “[a] failure to
provide reasonable accommodation can constitute discrimination under [§ ] 504.”
Id. (quoting Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)). And “[i]f an
organization that receives federal funds violates Rehabilitation Act § 504
intentionally or with deliberate indifference, it may be liable for compensatory
damages.” Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010).
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The Ninth Circuit has clarified that § 504 is broader than the
Individuals with Disabilities in Education Act (“IDEA”), and regulations
implementing § 504 that “require qualifying public schools to ‘provide a free
appropriate public education [FAPE] to each qualified handicapped person,’”
although similar to those under IDEA, are not identical. A.G. v. Paradise Valley
Unified Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016) (quoting 34 C.F.R.
§ 104.33(a) and citing Lemahieu, 513 F.3d at 929)). “[U]nlike FAPE under IDEA,
FAPE under § 504 is defined to require a comparison between the manner in which
the needs of disabled and non-disabled children are met and focuses on the
‘design’ of a child’s educational program.” Lemahieu, 513 F.3d at 933. A
§ 504 FAPE must be “designed to meet individual educational needs of
handicapped persons as adequately as the needs of nonhandicapped persons are
met.” 34 C.F.R. § 104.33(b)(1). Further, “Implementation of an Individualized
Education Program [IEP] developed in accordance with [IDEA] is one means of
meeting the standard.” 34 C.F.R. § 104.33(b)(2). But it is not the only means of
meeting the standard; thus, a plaintiff “may not obtain damages simply by proving
that the IDEA FAPE requirements were not met.” Lemahieu, 513 F.3d at 933.
Under these standards, to prevail on their claims under § 504,
Plaintiffs must prove the following: (1) [R.K.] is a qualified individual with a
disability; (2) she was denied a reasonable accommodation that she needs in order
13

to enjoy meaningful access to the benefits of a public education; and (3) the HDOE
receives federal financial assistance. See Paradise Valley Sch. Dist. No. 69, 815
F.3d at 1204; Hamamoto, 620 F.3d at 1097. To recover damages, Plaintiffs must
also prove that the HDOE acted intentionally, either by showing a “discriminatory
animus” or “deliberate indifference.” Paradise Valley Unified Sch. Dist. No. 69,
815 F.3d at 1204; Lemahieu, 513 F.3d at 938. Defendants concede that R.K. is a
qualifying individual and that the HDOE receives federal financial assistance.
Mot. at 3. Therefore, the court need only consider whether Plaintiffs have
provided sufficient evidence to raise a genuine issue of material fact as to second
element and the mens rea requirement of their claim.
1.

Meaningful Access/Reasonable Accommodation
Although Plaintiffs do not clearly delineate and/or distinguish their

claims under § 504 itself and under 34 C.F.R. § 104.33(b)(1), Plaintiffs appear to
contend that, as an accommodation to meaningfully access educational benefits,
R.K. required handling consistent with the behavior support and crisis plans that
had been used at Trumpet, that Mokulele’s behavioral support plan was not
designed to meet her needs, and that R.K. was denied an appropriate
accommodation when Mokulele staff restrained R.K. on March 10. Opp’n. at 7-8.
Whether an accommodation is reasonable “depends on the individual
circumstances of each case, and requires a fact-specific, individualized analysis of
14

the disabled individual’s circumstances and the accommodations that might allow
him [or her] to enjoy meaningful access to the program.” Hamamoto, 620 F.3d at
1098 (quoting Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)). The Ninth
Circuit has recognized that “[t]he Rehabilitation Act creates a duty to gather
sufficient information from the disabled individual and qualified experts as needed
to determine what accommodations are necessary.” Id. (quoting Duvall v. County
of Kitsap, 260 F.3d 1124, 1136 (9th Cir. 2001)).
Here, Plaintiffs have provided evidence that the Mokulele staff failed
to properly investigate R.K.’s needs regarding appropriate reaction to her
behavioral issues by excluding Trumpet staff from the February 12 meeting and
failing to discuss the use of restraint before designing Mokulele’s behavioral
support plan despite having received Trumpet’s plans outlining R.K.’s special
needs. Plaintiffs have also provided evidence that R.K. required this
accommodation in order to benefit from her education. Both Ebisui and Kimes
emphasize in their declarations the importance of refraining from using restraint as
much as possible. And the uncontested fact that Trumpet’s plans existed is
evidence that the accommodation was feasible. Evidence from Gilkey, R.K.’s
nurse and one-time skills trainer who witnessed the March 10 incident, as well as
Ebisui’s expert opinion based on descriptions of the incident, support Plaintiffs’
contention that both the Mokulele plan and the Defendants’ use of restraint during
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the incident were improper given R.K.’s disability and that the restraint used was
more than necessary to protect R.K. from injury. Thus Plaintiffs have raised
genuine issues of material fact as to whether HDOE denied R.K. meaningful
access to the benefits of a public education by denying her a reasonable
accommodation. 1
2. Deliberate Indifference
To show deliberate indifference, Plaintiffs must show that HDOE
knew that a harm to a federally protected right was substantially likely and failed
to act upon that likelihood. See Hamamoto, 620 F.3d at 1099. A plaintiff may
meet this test by showing that a defendant knew a particular accommodation was
needed yet failed to investigate whether the accommodation was reasonable. Id.
Plaintiffs have also raised genuine issues of material fact on these
points. It is uncontested that Mokulele and HDOE knew that R.K. needed
specialized autism services and that R.K.’s Individualized Education Plan required
implementation of a behavioral support plan. Evidence that Trumpet had included
the subject accommodation in its behavioral support and crisis plans and that
Trumpet had provided its plans to Mokulele supports Plaintiffs’ position that
HDOE knew that R.K. needed this specific accommodation because of her autism.

1

Because Plaintiffs’ evidence of a § 504 violation is sufficient to overcome Defendant
Matayoshi’s motion as to count one of the complaint, the court does not address allegations, if
any, arising under § 504 regulations. See Hamamoto, 620 F.3d at 1101-02.

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Finally, evidence that Mokulele did not seek input from Trumpet about its
behavioral support and crisis plans or seek the input of other professionals or
Kimes regarding the use of restraint with R.K. is sufficient to raise a genuine issue
of material fact as to whether Matayoshi failed to act upon a likelihood of harm to
a federally protected right.
B.

Section 504 Claims Against Defendants Nakamoto, Tovey, and Carlson
in their Official and Individual Capacities
In counts one and two of their complaint, Plaintiffs have alleged

violations of § 504 by Nakamoto, Tovey, and Carlson in both their official and
individual capacities. Compl. at ¶¶ 47-52. Defendants contend that the claims
against these defendants in their official capacities are merely duplicative of the
claim against Matayoshi in her official capacity and argue that there can be no
individual liability under § 504. Mot. at 9-10. Plaintiffs conceded at oral argument
that the individual-capacity claims should be dismissed.
“[A]n official-capacity suit is, in all respects other than name, to be
treated as a suit against an entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985).
In this case, the real party in interest is the HDOE. Although Plaintiffs have not
named HDOE as a defendant, the court treats Plaintiffs’ claim against Matayoshi
as Superintendent of HDOE as a suit against that entity, and finds Plaintiffs’ claims
against Nakamoto, Tovey, and Carlson in their official capacities are merely
duplicative of that claim. See Ricks v. Matayoshi, 2017 WL 1025170, at *5 (D.
17

Haw. Mar. 16, 2017) (dismissing claims against employees of the Hawaii
Department of Education as “duplicative of the Rehabilitation Act claim against
Defendant Matayoshi in her official capacity as Superintendent of the State of
Hawaii Department of Education.”); Carnell v. Crimm, 872 F. Supp. 746, 752 (D.
Haw. 1994) (dismissing claims against police officers, finding “[a] suit against a
law enforcement official in his official capacity generally represents merely
another way of pleading the action against the entity of which the official is an
agent”). Therefore, Defendants Nakamoto, Tovey, and Carlson are entitled to
summary judgment in their favor on counts one and two of the complaint.
C.

Tort Claims
Defendants Nakamoto and Tovey contend that they are entitled to

summary judgment on count three of the complaint, allegations of assault and
battery against those defendants only, and all defendants contend they are entitled
to summary judgment on count four, negligent infliction of emotional distress,
based on both a lack of evidence and the doctrine of qualified immunity. Because
the court finds the Defendants are immune as a matter of law, it does not address
the evidentiary support for these claims.
Nonjudicial government officials are immune from tort liability unless
an injured party demonstrates by clear and convincing evidence that the officials
were “motivated by malice and not by an otherwise proper purpose.” Towse v.
18

State, 64 Haw. 624, 632 (1982); see also Awakuni v. Awana, 115 Haw. 126, 140
(2007); Medeiros v. Kondo, 55 Haw. 499, 504-05 (1974). Hawaii courts define
“malice” as the “intent, without justification or excuse, to commit a wrongful act,”
“reckless disregard of the law or of a person’s legal rights,” and “ill will” or
“wickedness of heart.” Awakuni, 115 Haw. at 140-41.
In their opposition to Defendants’ motion, Plaintiffs acknowledge
their burden to put forth evidence of malice in order to overcome the conditional
privilege, but they have pointed to nothing that would support a finding by clear
and convincing evidence that any of the defendants acted with malice. Rather,
they conflate “malice” in this context with “deliberate indifference” in the context
of their § 504 claims, and they offer in support of their tort claims only their
argument under § 504 that Defendants acted with deliberate indifference—a
different standard requiring a different burden of proof. Thus, Plaintiffs have not
met their burden of showing sufficient evidence to establish an essential element of
their tort claims. See Broussard, 192 F.3d at 1258; Taylor, 880 F.2d at 1045.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment is GRANTED in part and DENIED in part. On count one of the
Complaint, Judgment is GRANTED in favor of Defendants Nakamoto, Tovey, and
Carlson on all counts of the complaint. Judgment is DENIED as to Matayoshi on
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count one of the complaint, but is GRANTED as to her on all other counts to the
extent they are alleged against her.
Remaining is Plaintiffs’ claim against Matayoshi in her official
capacity for violation of § 504.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, 16 October, 2017.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Kimes v. Matayoshi, Civ. No. 16-00264 JMS-RLP; Order Granting in Part and Denying in Part
Defendants Kathryn Matayoshi, Nicole Carlson, Bart Nakamoto, and Peter Tovey’s Motion for
Summary Judgment, ECF No. 29

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