Pantastico v. Department of Education, State of Hawaii et al

Filing 82

AMENDED ORDER GRANTING STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANT NAGAMINE'S MOTION FOR JUDGMENT ON THE PLEADINGS, AND GRANTING DEFENDANT HERMOSURA'S MOTION FOR JUDGMENT ON THE PLEADIN GS re 39 , 43 , 44 , 74 - Signed by JUDGE JILL A. OTAKE on 8/6/2019. (1) The State Defendants' Motion for Summary Judgment (ECF No. 44) is GRANTED. a. The Court GRANTS the State Defendan ts' Motion for Summary Judgment on Plaintiff's federal claims (Counts 1-2). b. The Court DISMISSES WITHOUT PREJUDICE the remaining state law claims for lack of jurisdiction (Counts 3-8). (2) Nagamine's Motion for Judgment on the Pleadings (ECF No. 39) is GRANTED in part and DENIED in part. a. The Court DENIES Nagamine's Motion with respect to Plaintiff's § 1983 bodily integrity claim (Count 1). b. The Court GRAN TS WITH LEAVE TO AMEND Nagamine's Motion with respect to Plaintiff's § 1983 Equal Protection claim (Count 1). c. The Court GRANTS Nagamine's Motion with respect to Counts 2, 4, and 8. d. The Court GRANTS WITH LEAVE TO AMEND Nagamine's Motion with respect to Plaintiff's Negligence and NIED claims (Counts 3 and 6). (3) Hermosura's Motion for Judgment on the Pleadings (ECF No. 43) is GRANTED. a. The Court GRANTS WITH LEAVE TO AMEND Hermosura's Motion with respect to Plaintiff's § 1983 claim (Count 1). b. The Court GRANTS Hermosura's Motion with respect to Plaintiff's Title IX claim (Count 2). Because trial is scheduled to begin September 23, 2019, and because Plaintiff and Defendants have had ample time for discovery and should be intimately familiar with the claims in this case, Plaintiff's deadline to file an amended complaint shall be on an expedited basis. If Plaintiff chooses to file an amended complaint, Plaintiff must file by July 31, 2019. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

CHARDONNAY PANTASTICO,

CIVIL NO. 18-00065 JAO-WRP

Plaintiff,

AMENDED ORDER GRANTING
STATE DEFENDANTS’ MOTION
vs.
FOR SUMMARY JUDGMENT,
DEPARTMENT OF EDUCATION, State GRANTING IN PART AND
DENYING IN PART DEFENDANT
of Hawai‘i; et al.,
NAGAMINE’S MOTION FOR
JUDGMENT ON THE
Defendants.
PLEADINGS, AND GRANTING
DEFENDANT HERMOSURA’S
MOTION FOR JUDGMENT ON
THE PLEADINGS1

AMENDED ORDER GRANTING STATE DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART
DEFENDANT NAGAMINE’S MOTION FOR JUDGMENT ON THE
PLEADINGS, AND GRANTING DEFENDANT HERMOSURA’S MOTION
FOR JUDGMENT ON THE PLEADINGS
This case concerns the alleged sexual harassment of Plaintiff by her softball
coach at James P. Campbell High School (“Campbell”) and the school’s alleged

1

This Amended Order adds the following: it clarifies in footnote 2 that the “State
Defendants” include Nagamine and Hermosura in their official capacities, and it
adds footnote 5 to make explicit that Nagamine’s knowledge of his own
harassment is not relevant to the analysis.

failure to prevent it. Plaintiff also asserts that Campbell’s female athletic facilities
were not equal to the male athletic facilities in violation of Title IX. Plaintiff
brings her claims against two defendants in their individual capacities, Kevin
Nagamine and Michael Hermosura, (the “Individual Defendants”); the State of
Hawai‘i Department of Education; and certain individuals in their official
capacities (collectively the “State Defendants”).2 Before the Court are Nagamine’s
Motion for Judgment on the Pleadings, Hermosura’s Motion for Judgment on the
Pleadings, and the State Defendants’ Motion for Summary Judgment. ECF Nos.
39, 43, 44.
For the reasons set forth below, the Court GRANTS the State Defendants’
Motion for Summary Judgment, GRANTS IN PART AND DENIES IN PART
Defendant Nagamine’s Motion for Judgment on the Pleadings, and GRANTS
Defendant Hermosura’s Motion for Judgment on the Pleadings.

2

The “State Defendants” refer specifically to the State of Hawai‘i Department of
Education; Kathryn Matayoshi, in her official capacity as former Superintendent of
the Department of Education; Naomi Takamori, in her official capacity as the
former Principal of Campbell; Jon Henry Lee, in his official capacity as the
Principal of Campbell; Duane Izumi, in his official capacity as the former Athletic
Director of Campbell; Samuel Delos Reyes, in his official capacity as the Athletic
Director of Campbell; Kevin Nagamine in his official capacity; and Michael
Hermosura in his official capacity. ECF No. 1; ECF No. 9.
2 

I.
A.

BACKGROUND

Facts

The following facts are undisputed. Plaintiff entered Campbell in 2012 and
graduated in 2016. ECF No. 1 ¶¶ 38, 39. She was a standout softball player at
Campbell, playing for both the junior varsity and varsity teams her freshman year
and the varsity team until she graduated. Id. ¶¶ 41, 42, 45; ECF No. 52-2 ¶ 17.
Defendant Kevin Nagamine was the head coach of the junior varsity team and was
an assistant coach of the varsity team. ECF No. 1 ¶ 45. Defendant Hermosura was
the head varsity softball coach. ECF No. 52-3 ¶¶ 12, 14.
The Complaint alleges that during her time at Campbell, Nagamine gave
Plaintiff special attention by buying her gifts and snacks, giving her rides to
practice, and befriending her. ECF No. 1 ¶¶ 47–57. Nagamine engaged in
conversations with her about her menstrual cycles and birth control methods and
his own deteriorating marital sex life. Id. ¶¶ 54, 56. Then, when Plaintiff turned
eighteen years old but was still a student at Campbell, the two engaged in a sexual
relationship. ECF No. 1 ¶ 59. Defendant Nagamine graduated from high school
roughly twenty years before Plaintiff. See ECF No. 58 at 4.
B.

Plaintiff’s Declarations

In opposition to the State Defendants’ Motion for Summary Judgment,
Plaintiff submitted her own declaration and a declaration of one of her teammates
3 

at Campbell, Kyra Hoohuli. In her declaration, Plaintiff alleges that Nagamine
often showed her and other teammates photos of naked women on his phone,
complained about his relationship with his wife, and asked Plaintiff about who she
was dating and suggested she date certain people. ECF No. 52-2 ¶¶ 16, 19, 20, 22,
23, 29, 30, 31. Hoohuli’s declaration states that Nagamine showed the softball
players pictures of porn stars and asked them which one they would rather have
sex with; all of the softball coaches constantly made sexual jokes and openly
discussed which former softball players they would most like to have sex with; and
coach Hermosura told the players they were getting fat and that they needed to lose
weight or they wouldn’t “get any guys.” ECF No. 52-3 ¶¶ 25–30.
According to Plaintiff’s declaration, Nagamine’s harassment of Plaintiff
increased significantly during her senior year, when Nagamine began to openly tell
Plaintiff that he could “treat her better” than the person she was dating and that he
would “show her how it was supposed to be done.” Id. ¶ 32. For Plaintiff’s
eighteenth birthday in February of 2016, Nagamine allegedly gave her a gift bag of
sports bras, athletic wear, snacks, and balloons. Id. ¶ 35. Shortly after that, the
softball team traveled to Maui for a tournament. Id. ¶ 36. One night during the
trip, Plaintiff and other female players were in the coaches’ hotel room when
Nagamine allegedly offered her a sip of alcohol and told her that if she was not
comfortable sleeping there, she could sleep in his room with his daughter. Id.
4 

¶¶ 38–39. When she said she was fine, he insisted and said that he would carry her
to his room if he had to. Id. Plaintiff’s declaration does not indicate what else, if
anything, happened that night. After the trip, Nagamine began sending Plaintiff
approximately ten to fifteen text messages a day, explicitly stating he wanted to be
with her. Id. ¶ 41. He sent Plaintiff messages such as “I want to be with you,” and
“you’re all I think about.” Id.
Soon after the trip, Nagamine picked up Plaintiff for practice but instead
drove her to a nearby shopping center. He then told her that he planned to leave
his wife for her. Id. ¶ 42. Plaintiff told him that was not a good idea, but she also
felt uncomfortable disagreeing with him and did not want to do anything to upset
him because he was her coach. Plaintiff still had to play her senior year under him,
which she believed was critical to her college softball recruitment. Id. ¶¶ 43–44.
Nagamine made Plaintiff promise not to tell anyone about their potential
relationship, and then forced Plaintiff to kiss him before taking her to practice. Id.
¶ 46.
After that, Nagamine and Plaintiff engaged in a sexual relationship that
Plaintiff felt pressured into continuing. Id. ¶¶ 43, 44, 67. While Plaintiff was still
a senior in high school, Nagamine and Plaintiff had sex in the back of his truck
before practices, and sometimes during school hours. Id. ¶¶ 50–52. After
graduating from Campbell, Plaintiff began playing softball at the University of
5 

Hawai‘i. ECF No. 52-2 ¶¶ 58, 71. Plaintiff and Nagamine continued their sexual
relationship during Plaintiff’s freshman year in college. ECF No. 52-2 ¶¶ 58–60.
Then, when Nagamine’s wife discovered the relationship in the fall of 2016, she
informed Plaintiff’s parents that Plaintiff and Nagamine were having sex. When
Plaintiff’s father found out, he brutally assaulted her. Id. ¶¶ 64–67. After the
assault Plaintiff began suffering from depression and attempted suicide. Id. ¶¶ 68–
70. She no longer enjoys softball as much as she used to and remains emotionally
distraught. Id. ¶¶ 71–74.
Before this lawsuit, Plaintiff had not informed the school about the
inappropriate comments Nagamine made or the nude photos he showed the
players. Nor did Plaintiff inform the school about Nagamine’s pursuit of Plaintiff
or their sexual relationship.3 Plaintiff did, however, inform one of the assistant
coaches about her sexual relationship with Nagamine: toward the end of her senior
year, Plaintiff and Nagamine were having sex at his house when his wife came
home, and Plaintiff ran from the house. Id. ¶¶ 52–54. She called assistant coach
Ryan Palipti for a ride home and told him what happened. Id. ¶¶ 52–54.
Plaintiff’s Complaint also alleges that the State Defendants were aware that
Nagamine had previously had a sexual relationship with an underaged softball

3

It appears that Plaintiff may have informed Hermosura of Nagamine’s conduct in
April 2017, but this was after she had already graduated and after Nagamine no
longer worked at the school. See ECF No. 45 ¶ 4.
6 

player at Campbell while he was a coach, but still re-hired him back to the softball
program. ECF No. 1 ¶¶ 67–68, 74; ECF No. 51 ¶ 6. Hoohuli states in her
declaration that “it was well known that Coach Kevin [Nagamine] was let go from
the Campbell girls’ softball program [in or around 1997] because he was fooling
around with an underage softball player and student at Campbell High.” ECF No.
52-3 ¶ 17. It is undisputed that: (1) at the time, Nagamine was a recent graduate of
Campbell; (2) Nagamine married this player; and (3) Nagamine and this player are
still married. ECF No. 1 ¶¶ 61–65.
C.

Procedural History

Plaintiff filed her Complaint against Nagamine, Hermosura, and the State
Defendants on February 16, 2018. ECF No. 1. She asserts the following claims
against all Defendants: Violation of 42 U.S.C. § 1983 (Count 1); Violations of
Title IX for both sexual harassment and unequal athletic treatment (Count 2);
Negligence (Count 3); Negligent Hiring, Training and Supervision (Count 4);
Battery (Count 5); Negligent Infliction of Emotional Distress (Count 6);
Intentional Infliction of Emotional Distress (Count 7); Punitive Damages (Count
8).
II.

STATE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The State Defendants move for summary judgment on all Plaintiffs’ claims.

For the reasons set forth below, the Court GRANTS the State Defendants’ Motion
7 

for Summary Judgment on Plaintiff’s federal claims (Counts 1 and 2) and
DISMISSES Plaintiff’s state law claims (Counts 3–8) WITHOUT PREJUDICE for
lack of jurisdiction.
A.

Standard of Review

Summary judgment is proper when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). Federal Rule of Civil Procedure 56(a) mandates summary judgment
“against a party who fails to make a 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of informing
the court of the basis for its motion and of identifying those portions of the
pleadings and discovery responses that demonstrate the absence of a genuine issue
of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007) (citing Celotex, 477 U.S. at 323). “When the moving party has carried its
burden under Rule 56[(a)], its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts [and] . . . come forward with
specific facts showing that there is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87 (1986) (internal quotation marks
8 

and citations omitted). “[A] party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials of his [or
her] pleading, but . . . must set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(internal quotation marks omitted).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which
a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). 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., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmoving party] is to be believed, and all justifiable inferences are to be
drawn in his [or her] favor”).
B.

Analysis
i.

Constitutional Violation under 42 U.S.C. § 1983 (Count 1)

Plaintiff initially brought a claim against the State Defendants under 42
U.S.C. § 1983. ECF No. 1 at 17. But in her Opposition, Plaintiff expressly
abandoned that claim against the State Defendants. ECF No. 52-1 at 13. Thus, the
9 

State Defendants’ Motion for Summary Judgment on the § 1983 claim (Count 1) is
GRANTED.
ii.

Plaintiff’s Title IX Sexual Harassment Claim (Count 2)

Plaintiff alleges that the State Defendants are liable for Nagamine’s sexual
harassment of her under Title IX. The State Defendants move for summary
judgment on the grounds that they did not have actual knowledge of the
harassment and did not act deliberately indifferent to Plaintiff’s harassment. See
Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274 (1998).
In Gebser, the Supreme Court addressed the question of “when a school
district may be held liable . . . for the sexual harassment of a student by one of the
district’s teachers.” 524 U.S. at 277. There, a high school teacher made sexually
suggestive comments to his students, and then engaged in a sexual relationship
with an underaged student in his class. Id. at 278. The Court held that, in order to
establish damages against a school district for a teacher’s sexual harassment or
abuse of a student under Title IX, a plaintiff must show that “an official who at a
minimum ha[d] authority to address the alleged discrimination and to institute
corrective measures on the recipient’s behalf ha[d] actual knowledge of

10 

discrimination” and responded with “deliberate indifference.”4 Id. at 290.
Critically, the school district must have had actual knowledge of the harassment;
evidence that a reasonable official should have known is insufficient to impose
liability on the school district. See Oden v. N. Marianas Coll., 440 F.3d 1085,
1089 (9th Cir. 2006); Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1175
(10th Cir. 2007).
Courts have also held that a school district may be liable where there is
actual knowledge of a teacher’s prior sexual harassment but was deliberately
indifferent to it, resulting in the plaintiff’s harm. See, e.g., Doe v. Sch. Bd. of
Broward Cty., Fla., 604 F.3d 1248, 1257–59 (11th Cir. 2010). Under this theory
of liability, actual knowledge of prior similar abuses which put the school on
notice that the teacher was at a “substantial risk” of abusing other students is
sufficient. Escue v. N. OK Coll., 450 F.3d 1146, 1154 (10th Cir. 2006); Broward,
604 F.3d at 1259; see also Thomas v. Bd. of Trs. of the Neb. State Colls., 667 F.

4

Plaintiff argues that the State Defendants can be liable if they either had actual
knowledge of the harassment or acted with deliberate indifference. But the
caselaw that Plaintiff cites unequivocally holds that the State can only be liable if it
had actual knowledge of harassment and acted with deliberate indifference. See
Gebser, 524 U.S. at 290; Doe v. Sch. Bd. of Broward Cty., 603 F.3d 1248, 1254
(11th Cir. 2010); Hyut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir. 2003).
Indeed, it makes no sense to hold the State liable where it learns of sexual
harassment (actual knowledge) but takes immediate and proper corrective action
(no deliberate indifference). Likewise, it is difficult to understand how the State
Defendants could possibly act with deliberate indifference to harassment of which
it has no knowledge.
11 

App’x 560, 562 (8th Cir. 2016). But see Baynard v. Malone, 268 F.3d 228, 237–
38 (4th Cir. 2001) (holding that district’s liability arises only on actual knowledge
“of the discriminatory conduct in question”).
In opposition, Plaintiff does not offer any evidence that the State Defendants
had actual knowledge of Nagamine’s alleged sexual harassment of Plaintiff.5 In
Plaintiff’s Concise Statement of Facts, the only person alleged to have had actual
knowledge of Nagamine’s sexual relationship with Plaintiff is Ryan Palipti, one of
the softball assistant coaches. See ECF No. 51 ¶ 15. But there is no indication that
Palipti, as an assistant coach, had the “authority to address the alleged
discrimination and to institute corrective measures on the recipient’s behalf.”
Gebser, 524 U.S. at 290; see also DeCecco v. Univ. of S.C., 918 F. Supp. 2d 471,
492 (D.S.C. 2013) (finding that a head coach did not have sufficient authority over
assistant coach harasser to warrant the university’s liability, because the assistant
coach reported to the administration not to the head coach); Baynard v. Malone,
268 F.3d 228 (4th Cir. 2001) (“It appears that the person who receives notice of the
alleged wrongdoing must have the power to fire or impose discipline.”). Thus, the
State Defendants cannot be liable based on Palipti’s actual knowledge of Plaintiff’s
relationship with Nagamine, and Plaintiff does not argue otherwise.

5

Nagamine’s knowledge of his own harassment is not relevant to this inquiry.
Gebser, 524 U.S. at 291; Salazar v. S. San Antonio Indep. Sch. Dist., 690 F. App’x
853 (5th Cir. 2017).
12 

Instead, Plaintiff’s theory rests on the allegation that the State Defendants
had actual knowledge that Nagamine had a prior sexual relationship with an
underaged Campbell softball player while he was a coach, and yet were
deliberately indifferent by re-hiring him. See ECF No. 52-1 at 7–9. But Plaintiff
has also failed to offer any evidence that the State Defendants had actual
knowledge of Nagamine’s alleged prior sexual relationship with a student.
In Plaintiff’s Concise Statement of Facts, Plaintiff alleges that the State
Defendants terminated Nagamine for a prior sexual relationship with a student.
ECF No. 51 ¶¶ 2, 6, 7. The evidentiary support for this comes from the allegations
in the Complaint—which are insufficient to defeat a motion for summary
judgment, Anderson, 477 U.S. at 248—and from Hoohuli’s declaration. Id. But
Hoohuli’s declaration does not establish a genuine issue of fact about whether the
State Defendants had actual knowledge of Nagamine’s alleged prior sexual
relationship. Hoohuli states:
[I]t was well known that [Nagamine] was let go from the Campbell
girls’ softball program because he was fooling around with an
underage softball player and student at Campbell High. He ended up
getting her pregnant. The softball girl that he got pregnant is his
current wife[.] . . . It was also well known that [Nagamine] left the
Campbell High School softball coaching staff twice. The first time
was on or around 1997, when [another coach] found out that
[Nagamine] got [his current wife] pregnant while she was a player and
student on the Campbell team.
ECF No. 52-3 ¶¶ 17, 18, 21, 22.
13 

While the Court is aware of the need to draw all reasonable inferences in
favor of Plaintiff here, alleging that Nagamine’s prior relationship was “well
known” is not evidence that someone with sufficient authority actually knew about
it. Constructive knowledge—that is, what the State Defendants should have
known—is insufficient to impose liability on the State. See Oden, 440 F.3d at
1089. Further, there is nothing in Hoohuli’s declaration establishing that she has
personal knowledge of what the State Defendants knew about Nagamine’s alleged
prior sexual relationship. See Fed. R. Civ. P. 56(c)(4) (requiring declaration “be
made on personal knowledge” and setting forth facts “that would be admissible in
evidence”); see also Block v. City of L.A., 253 F.3d 410, 419 (9th Cir. 2001) (abuse
of discretion to rely on declaration not made on personal knowledge). Indeed, at
the time of Nagamine’s alleged prior sexual relationship with a student in 1997,
Hoohuli was not even born yet. See ECF No. 52-3 ¶ 6.
Plaintiff has not established a genuine dispute of fact regarding whether the
State Defendants knew of Nagamine’s alleged prior sexual relationship with a
student and then re-hired him despite this knowledge. ECF No. 51 ¶¶ 2, 6, 7.
Despite ample time to conduct discovery,6 Plaintiff continues to rely on bare

6

Although the discovery period is still ongoing, Plaintiff has had since August
2018 to conduct necessary discovery. See ECF No. 26. Moreover, Plaintiff did
not seek additional time to oppose summary judgment as she could have done
under Federal Rule of Civil Procedure 56(d).
14 

allegations and innuendo, which are insufficient to defeat a motion for summary
judgment. See Githere v. Consolidated Amusement Corp. Inc., 258 Fed. App’x.
122, 124 (9th Cir. 2007). Thus, because Plaintiff has failed to present any
evidence that the State Defendants had actual knowledge of any of Nagamine’s
alleged sexual harassment, the State Defendants’ Motion for Summary Judgment
on Plaintiff’s Title IX sexual harassment claim (Count 2) is GRANTED.
iii.

Plaintiff’s Title IX Equal Treatment Claim (Count 2)

Plaintiff also alleges that the State Defendants failed to provide Campbell’s
female athletes with certain athletic facilities in violation of Title IX’s equal
treatment requirements. ECF No. 1 ¶¶ 85, 86, 90, 91. The State Defendants move
for summary judgment on the ground that Plaintiff failed to present any evidence
of gender-based inequality. ECF No. 44-1 at 10–11.
Under Title IX’s equal treatment requirements, schools that operate
“interscholastic, intercollegiate, club or intramural athletics shall provide equal
athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c). “[E]qual
treatment claims allege sex-based differences in the schedules, equipment,
coaching, and other factors affecting participants in athletics.” Mansourian v.
Regents of Univ. of Cal., 602 F.3d 957, 965 (9th Cir. 2010). “Compliance in the
area of equal treatment and benefits is based on an overall comparison of the male
and female athletic programs, including the provision of equipment and supplies,
15 

the scheduling of games and practices, the availability of training facilities, the
opportunity to receive coaching, the provision of locker rooms and other facilities
and services, and publicity.” Carpio, for & on behalf of A.C. v. Fed. Way Sch.
Dist., No. C15-46 MJP, 2016 WL 8710018, at *2, 2016 U.S. Dist. LEXIS 32638,
at *4 (W.D. Wash. Mar. 11, 2016) (citing 34 C.F.R. § 106.41(c)) (emphasis
added). Disparities in athletics may constitute a Title IX violation only where the
disparity is substantial enough to deny equality of athletic opportunity.
McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 293–94
(2d Cir. 2004).
Plaintiff bases her claim on the allegation that the female softball players
lacked adequate athletic facilities, such as locker rooms, restrooms, and even
access to water. See ECF No. 1 at ¶¶ 9–11; ECF No. 52-1 at 10; ECF No. 51 ¶¶ 4–
5. But she offers nothing to show what facilities existed for male athletes, if any.
ECF No. 52-3 ¶ 34; see also ECF No. 51 ¶¶ 4, 5, 13. Indeed, Plaintiff’s entire
unequal treatment claim rests on Hoohuli’s declaration which states that the female
softball players did not have changing facilities and says nothing about the male
facilities. Without any comparison to the male facilities, there is no evidence of
any sex-based disparity. McCormick, 370 F.3d at 293–94.

16 

Thus, because Plaintiff failed to present any evidence of disparity in athletic
facilities on the basis of sex, the State Defendants’ Motion for Summary Judgment
on Plaintiff’s Title IX equal treatment claim (Count 2) is GRANTED.7
iv.

State Law Claims

Because the Court grants summary judgment on all the federal claims
asserted against the State Defendants, and because there is no diversity jurisdiction,
there is no basis for the Court’s continued jurisdiction over the state law claims.
See 28 U.S.C. § 1367(c)(3); Souch v. Howard, 27 F. App'x 793, 795 (9th Cir.
2001) (“When all federal claims have been dismissed before trial, the interests
promoted by supplemental jurisdiction are no longer present, and a court should
decline to exercise jurisdiction over state-law claims.”). Thus, the Court
DISMISSES WITHOUT PREJUDICE all remaining state law claims (Counts 3–8)
against the State Defendants.
III.

NAGAMINE’S MOTION FOR JUDGMENT ON THE PLEADINGS
Although Nagamine’s Motion is titled as a Motion to Dismiss under Rule

12(b)(6), counsel for Nagamine clarified at the hearing that his Motion is brought
pursuant to Rule 12(c). The standards for motions to dismiss for failing to state a

7

The Court notes that this ruling has no bearing on other Title IX cases involving
Campbell. See, e.g., A.B., et al. v. Hawaii State Dep’t of Educ., et al., Civil No.
18-00477 LEK-RT. Rather, this ruling only addresses whether Plaintiff offered
enough evidence to survive a motion for summary judgment here.
17 

claim under Rule 12(b)(6) and Rule 12(c) are “ functionally identical,” Dworkin v.
Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
A.

Standard of Review

Under Rule 12(c), a party may move for judgment on the pleadings any time
“[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R. Civ.
P. 12(c). Courts may grant such motions only when, after accepting the allegations
as true and construing them in the light most favorable to the non-moving party,
the moving party is entitled to judgment as a matter of law. Fleming v. Pickard,
581 F.3d 922, 925 (9th Cir. 2009). If the motion for judgment on the pleadings is
based on a failure to state a claim upon which relief can be granted, the standard is
the same as for a motion to dismiss under Rule 12(b)(6). McGlinchy v. Shell
Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988); see also Cafasso, U.S. ex rel. v.
General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). The
standard for granting leave to amend under Rule 12(c) is also identical to Rule
12(b)(6). Pac. W. Grp., Inc. v. Real Time Sols., Inc., 321 F. App’x 566, 569 (9th
Cir. 2008). Thus, “Dismissal with prejudice and without leave to amend is not
appropriate unless it is clear . . . that the complaint could not be saved by
amendment.” Harris v. Cty. of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012)
(quoting Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003)).
18 

B.

Analysis
i.

Constitutional Violations under 42 U.S.C. § 1983 (Count 1)

Nagamine asserts that Plaintiff fails to state a claim under § 1983 because
the Complaint does not allege any specific constitutional violation. To state a
claim under § 1983, Plaintiff must plead (1) that a right secured by the Constitution
and laws of the United States was violated; and (2) that the violation was
committed by a person acting under color of state law. Naffe v. Frey, 789 F.3d
1030, 1035–36 (9th Cir. 2015). Although not explicitly stated in the Complaint,
Plaintiff contends that her § 1983 claim is based on Nagamine’s sexual harassment
of Plaintiff in violation of two constitutional rights: the right to bodily integrity
under the Due Process Clause; and “the right to an educational environment free
from sexual harassment” under the Equal Protection Clause. ECF No. 53 at 4. In
Reply, Nagamine argues that the facts alleged do not amount to a violation of
either constitutional right. ECF No. 57 at 5–8.
A plaintiff’s failure to plead in a complaint the specific constitutional right
allegedly violated is not per se fatal. See Reyes v. Hawai‘i, Civ. No. 17-00143JAO-RT, 2019 WL 1746570, at *3, 2019 U.S. Dist. LEXIS 66574, at *9–10 (D.
Haw. April 18, 2019); Little v. State of Ill. Dep't of Revenue, Bureau of Criminal
Investigation, 907 F. Supp. 280, 284 (N.D. Ill. 1995); Simmons v. Chicago Pub.
Library, 860 F. Supp. 490, 493 (N.D. Ill. 1994). The Complaint here outlines (1)
19 

sexual intercourse between Plaintiff and Nagamine while Plaintiff was still a high
school student and (2) Nagamine’s history of grooming behavior toward Plaintiff.
The Court discusses below whether the facts alleged are sufficient to plead a
constitutional violation. The Court need not address whether Nagamine was acting
under color of law, because Nagamine has agreed, solely for purposes of this
motion, that he was. ECF No. 57 at 6–7 & n.1.
a.

Bodily Integrity Under the Due Process Clause

Under the Due Process Clause, people “have a fourteenth amendment liberty
interest in freedom from bodily injury.” Doe v. Claiborne Cty., Tenn., 103 F.3d
495, 506 (6th Cir. 1996). The right to one’s bodily integrity is “infringed by a
serious, as distinct from a nominal or trivial, battery.” Alexander v. DeAngelo, 329
F.3d 912, 916 (7th Cir. 2003); see also Romero v. City of New York, 839 F. Supp.
2d 588, 626 (E.D.N.Y. 2012). Consent generally justifies a state’s bodily incursion
that would otherwise violate the right to bodily integrity. See Bibeau v. Pac. Nw.
Research Found. Inc., 188 F.3d 1105, 1112–13 (9th Cir.1999); Pabon v. Wright,
459 F.3d 241, 253 (2nd Cir. 2006); Bennett v. Pippin, 74 F.3d 578, 584, 589 (5th
Cir. 1996).
Nonconsensual sexual penetration is, without question, a sufficiently serious
battery to warrant constitutional protection. Alexander, 329 F.3d at 916; Romero,
839 F. Supp. 2d at 626; Bennett, 74 F.3d at 584, 589. And in cases involving
20 

sexual relations with children, the child’s lack of consent is often established as a
matter of law. See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.
1994); Romero v. City of New York, 839 F. Supp. 2d 588, 626 (E.D.N.Y. 2012).
Thus, in the educational context, where a state-employed teacher engages in sexual
acts with a student under color of law, lack of consent is often assumed. See, e.g.,
Claiborne County, 103 F.3d at 506.
In this case, however, Plaintiff was eighteen years old when she and
Nagamine had sex. ECF No. 1 ¶ 59. Nagamine argues that because the sexual
relationship was consensual, there can be no violation. See ECF No. 57 at 7–8.
Although Plaintiff was eighteen years old at the time, and therefore legally capable
of consenting, the Ninth Circuit cautions that disparate power dynamics may
“make it difficult to discern consent from coercion.” Wood v. Beauclair, 692 F.3d
1041, 1047 (9th Cir. 2012). Courts have recognized that unjustified coercive
means—often accomplished through disparate power dynamics—can vitiate
consent. See, e.g., Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir.
2003) (addressing “rape accomplished through the coercive power of [defendant’s]
status as a police officer”); Wudtke v. Davel, 128 F.3d 1057, 1059, 1063–64 (7th
Cir. 1997) (sex performed under coercive means and threats sufficient to state
bodily integrity violation); Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir.
2003) (“Sex procured by threats . . . is a common form of rape.”).
21 

In Wood, a male prisoner alleged that a female prison guard molested him in
violation of his Eighth Amendment rights.8 692 F.3d at 1046–49. In overruling
the district court’s finding that there was no question of fact that the touching was
consensual, the Ninth Circuit discussed the pronounced power disparities between
prisoners and guards:
Prisoners have no control over most aspects of their daily lives. They
cannot choose what or when to eat, whether to turn the lights on or
off, where to go, and what to do. They depend on prison employees
for basic necessities, contact with their children, health care, and
protection from other inmates.
Id. at 1047. The Ninth Circuit therefore recognized that in such power disparities,
even where sexual interactions are “voluntary” (such as where a prisoner trades
sexual services for benefits or to avoid reprisals), the sexual interactions may still
be coercive to the point of vitiating consent. Id. Because of that power dynamic,
the Ninth Circuit imposed a presumption that sexual interactions between prisoners
and guards are nonconsensual. Id. at 1049. “The state then may rebut this
presumption by showing that the conduct involved no coercive factors.” Id.
Importantly for this case, the Ninth Circuit analogized the power disparities
in prison to that of a teacher over a student. Id. at 1047. The Ninth Circuit
observed that, just as in the prison context, the “power inequities between adults

8

Although Wood involved an Eighth Amendment claim, the question of consent
was dispositive as it is here.
22 

and minors, teachers and students, and owners and slaves foster opportunities for
sexual abuse.” Id. Indeed, sexual abuse in the school setting often arises from the
teacher’s use of authority over the student. See, e.g., Taylor, 15 F.3d at 446–47
(allowing female students to receive high marks without doing work and writing
suggestive notes on homework and test papers); Stoneking, 882 F.2d at 722
(allegations of band coach using threats of reprisals); Kobrick v. Stevens, No. 3:13CV-2865, 2017 WL 3839945, at *8, 2017 U.S. Dist. LEXIS 141694, at *19 (M.D.
Pa. Sept. 1, 2017) (teacher formally arranged for student and teacher to spend
every study hall together). The power dynamic in high schools may be different in
degree from prisons, but it is not different in kind. Schools and their staff—hired
not only to educate but also to protect children under their care—have significant
authority over students. Indeed, high school students, who generally still rely on
the care and supervision of parents and school officials, may in some cases be less
capable of repelling coercive sexual advances from teachers, coaches or
administrators than prisoners are from guards. See Kobrick, 2017 WL 3839945, at
*8, 2017 U.S. Dist. LEXIS 141694, at *19 (“The student-teacher relationship is
defined by a power dynamic which inherently renders the student vulnerable to
coercion by opportunistic predators.”).
The Court therefore holds that the rebuttable presumption of non-consent
applies to sexual relationships between high school students and teachers, coaches,
23 

or administrators of the high school, regardless of age. This presumption, of
course, does not apply to the many cases in which a minor’s inability to legally
consent will control. Here, because Plaintiff was eighteen the rebuttable
presumption applies.
Under the Wood presumption, Plaintiff has adequately pled a cause of action
under 42 U.S.C. § 1983 for a violation of her bodily integrity based on the sexual
relationship with Defendant Nagamine, her high school softball coach.
b.

Sexual Harassment Under the Equal Protection Clause

“Sexual harassment by a public official in an educational setting violates the
Equal Protection Clause and is cognizable under section 1983.” S.T. v. Yakima
School Dist. No. 7, No. 11-CV-3085-TOR, 2013 WL 807197, at *4, 2013 U.S.
Dist. LEXIS 30914, at *11 (E.D. Wash. March 5, 2013) (citing Oona R.-S. v.
McCaffrey, 143 F.3d 473, 476 (9th Cir. 1998)). Plaintiff cites to several cases
holding that sexual harassment amounting to a hostile educational environment
may be an Equal Protection violation. ECF No. 53 at 4–5. Under these cases, the
harassment must be (1) based on the plaintiff’s sex, and (2) “sufficiently severe or
pervasive to interfere unreasonably with [the plaintiff’s] educational activities.”
See Jennings v. Univ. of N.C., 482 F.3d 686, 701 (4th Cir. 2007); see also Hyut v.
State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003); Walsh v. Tehachapi Unified
Sch. Dist., 827 F. Supp. 2d 1107, 1118 (E.D. Cal. 2011); Yakima, 2013 WL
24 

807197, at *4, 2013 U.S. Dist. LEXIS 30914, at *11. The standards developed for
hostile work environment claims under Title VII apply to similar claims under
section 1983. Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994).
The parties do not dispute that the alleged harassment was based on
Plaintiff’s sex. However, the second requirement—that the harassment be
sufficiently severe and pervasive to unreasonably interfere with the plaintiff’s
educational activities—is not met here. Plaintiff failed to allege how Nagamine’s
behavior negatively impacted Plaintiff’s educational experience: the Complaint is
completely silent in this regard. And Plaintiff’s surviving bodily integrity claim
does not necessarily equate to an adequately pled cause of action under the hostile
environment standard outlined in Jennings, 482 F.3d at 701, as the two standards
are different.
Although the Complaint as pled fails to state a claim for sexual harassment
under the Equal Protection Clause at outlined in Jennings and Hyut, leave to
amend will be granted because allowing amendment would not necessarily be
futile. See, e.g., Harris, 682 F.3d at 1131 (9th Cir. 2012) (Under Rule 12(c),
dismissal without leave to amend “is not appropriate unless it is clear . . . that the
complaint could not be saved by amendment”).
Nagamine argues that the Court should deny leave to amend because
Plaintiff already filed a complaint and amended it twice on these allegations in
25 

Jane Doe v. Hawai‘i, 17-cv-00164-LEK-RLP. ECF No. 57 at 11. But this
argument is unavailing because that complaint is not before the Court. Moreover,
the court in the prior case never ruled that the complaint was insufficient. Indeed,
in the prior case, Defendants never filed any motions to dismiss, and the parties,
including Defendant Nagamine, agreed to voluntarily dismiss the complaint
without prejudice. Thus, the Court considers this complaint anew.
Nagamine also argues that the Court should deny leave to amend because
trial is fast approaching and the deadline to amend the Complaint has passed. ECF
No. 57 at 11–13. Nagamine argues that only good cause can justify an
amendment. Id. This argument is equally unpersuasive. Nagamine’s argument
confuses a plaintiff’s ability to voluntarily amend a complaint after the deadline
has passed under Rule 16(b)(4)’s “good cause” standard, with a Plaintiff’s right to
amend after a court dismisses a complaint for failing to state a claim. See, e.g.,
King v. Garfield Cty. Public Hosp. Dist. No. 1, No. 12-CV-0622-TOR, 2013 WL
6842534, at *4, 2013 U.S. Dist. LEXIS 180836, at *11–12 (E.D. Wash. Dec. 27,
2013). After dismissal under Rule 12(b)(6) and 12(c), the standard is whether
“amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656
F.3d 1034, 1041 (9th Cir. 2011); Harris, 682 F.3d at 1131. Such a distinction is of
particular importance here, where it was Nagamine who chose to file his motion

26 

for failure to state a claim this late in the litigation, more than a year after the
Complaint was filed.
For the reasons discussed, the Court DENIES Nagamine’s Motion for
Judgment on the Pleadings with respect to Plaintiff’s § 1983 claim based on a Due
Process violation of bodily integrity, but the Court GRANTS Nagamine’s Motion
WITH LEAVE TO AMEND with respect to the § 1983 claim based on an Equal
Protection violation.
ii.

Title IX Claims (Count 2)

It is unclear whether Plaintiff initially brought her Title IX claims against
Nagamine. ECF No. 1 at 19–21. Regardless, Plaintiff concedes that Title IX does
not apply to defendants in their individual capacities. ECF No. 50 at 11. Thus,
Nagamine’s Motion to Dismiss Plaintiff’s Title IX claim against him (Count 2) is
GRANTED.
iii.

State Law Claims (Counts 3–8)

Nagamine moves for judgment on the pleadings of Plaintiff’s state law
claims. Nagamine argues that if the Court retains supplemental jurisdiction over
the state law claims, the Court should dismiss the Third, Fourth, Sixth and Eighth
causes of action for failing to state a claim. ECF No. 39-1 at 12–14.

27 

a.

Negligence / Gross Negligence (Count 3) and NIED (Count 6)

Nagamine moves to dismiss the Third Cause of Action for
“Negligence/Gross Negligence” on the grounds that the allegations fail to state a
claim. ECF No. 39-1 at 13. Nagamine also argues that Plaintiff’s Negligent
Infliction of Emotional Distress (“NIED”) claim should be dismissed. 9 ECF No.
57 at 9.
There are four elements of negligence under Hawai‘i law:
(1) A duty, or obligation, recognized by the law, requiring the
defendant to conform to a certain standard of conduct, for the
protection of others against unreasonable risks; (2) A failure on the
defendant's part to conform to the standard required: a breach of the
duty; (3) A reasonably close causal connection between the conduct
and the resulting injury; and (4) Actual loss or damage resulting to the
interests of another.
Molfino v. Yuen, 134 Haw. 181, 184 (2014) (quoting Takayama v. Kaiser Found.
Hosp., 82 Haw. 486, 498–99 (1996)). With respect to the fourth element, where
the plaintiff’s injury is solely emotional or psychological, “the plaintiff must
establish some predicate injury either to property or to another person in order
himself or herself to recover for negligently inflicted emotional distress.” Doe
Parents No. 1 v. State, Dep’t of Educ., 100 Haw. 34, 69 (2002). The general rule
in Hawai‘i is thus “that an NIED claimant must establish, incident to his or her

9

Although Nagamine only sought dismissal of the NIED claim in Reply, because
the NIED and Negligence claims are similar here, the Court addresses both claims.
28 

burden of proving actual injury . . . that someone was physically injured by the
defendant’s conduct, be it the plaintiff himself or herself or someone else.” Id. at
69–70; see also Ilae v. Tenn, Civ. No. 12-00316 ACK-KSC, 2013 WL 4499386, at
*20, 2013 U.S. Dist. LEXIS 118079, at *63–64 (D. Haw. Aug. 20, 2013).
“However, in cases that present unique circumstances, which provide the
requisite assurance that the plaintiff’s psychological distress is trustworthy and
genuine, [the Hawai‘i Supreme Court has] not hesitated to carve out exceptions to
[the] general rule” requiring “physical injury to someone.” Id. at 70 (internal
quotation marks and alterations omitted) (quoting John & Jane Roes, 1-100 v.
FHP, Inc., 91 Haw. 470, 474 & n.6 (1999)). Thus, in Doe Parents No. 1, the
Hawai‘i Supreme Court held that no accompanying physical injury was required to
state an NIED claim that arose from the sexual fondling or molestation of children
by a school teacher. Id.
Here, Plaintiff’s Complaint is entirely devoid of allegations of any injury,
physical or otherwise. Plaintiff merely asserts that she “has suffered and/or will
suffer various economic, special, general and non-economic damages to be proven
at trial.” ECF No. 1 ¶ 101; ECF No. 53 at 8. Such conclusory allegations of
damages are insufficient to meet the fourth element of a negligence claim. See
Tseu ex rel. Hobbs v. Jeyte, 88 Haw. 85, 92–93 (1998) (affirming dismissal of
NIED claim for failing to allege any “physical injury to herself or another”);
29 

Molokai Veterans Caring For Veterans v. Cty. of Maui, CIV. No. 10-00538 LEK,
2011 WL 1637330, at *28, 2011 U.S. Dist. LEXIS 46405, at *80 (D. Haw. Apr.
28, 2011) (dismissing negligence claim in part because plaintiff failed to allege any
injury). The Court notes that Plaintiff must also plead a “reasonably close causal
connection between the [negligent] conduct and the resulting injury.” Molfino, 134
Haw. at 184. Of course, Plaintiff cannot do so without pleading the alleged injury.
For these reasons, Nagamine’s motion to dismiss the Negligence claim
(Count 3) and NIED claim (Count 6) against him is GRANTED WITH LEAVE
TO AMEND.
b.

Negligent Hiring, Training and Supervision (Count 4)

Nagamine moves to dismiss the Fourth Cause of Action for “Negligent
Hiring, Training and Supervision,” ECF No. 1 at 22, on the grounds that there are
no allegations in the complaint that Nagamine hired, trained or supervised any
employees. ECF No. 39-1 at 13–14. A claim for negligent hiring, training and
supervision relates to an employer’s liability for the conduct of their employees.
See, e.g., Otani v. City and Cty. of Haw., 126 F. Supp. 2d 1299, 1308–09 (D. Haw
1998).
As the employee who allegedly harmed Plaintiff, it is unclear how this claim
relates to Nagamine. Plaintiff did not respond to this concern in her Opposition.
But Plaintiff appears to have intended to bring the Fourth Cause of Action against
30 

only the State Defendants. See ECF No. 52-1 at 13. Because Plaintiff’s
Opposition is silent in this regard, and because the allegations against Nagamine do
not allege that he hired, trained or supervised anyone, the Court GRANTS
Nagamine’s Motion to dismiss the Negligent Hiring, Training and Supervision
claim against him (Count 4) WITH PREJUDICE.
c.

Punitive Damages (Count 8)

Nagamine moves to dismiss the Eighth Cause of Action for “Punitive
Damages,” ECF No. 1 at 25 on the ground that punitive damages are a form of
damages, on not a cause of action. ECF No. 39-1 at 14. Plaintiff does not address
this argument in her Opposition, but in her Opposition to the State Defendants’
Motion for Summary Judgment, Plaintiff concedes that punitive damages are a
remedy, and not a cause of action. ECF No. 52-1 at 13. The Court therefore
DISMISSES Plaintiff’s Eighth Cause of Action for “Punitive Damages.”
IV.

HERMOSURA’S MOTION FOR JUDGMENT ON THE PLEADINGS
A.

Analysis
i.

Constitutional Violation Under 42 U.S.C. § 1983 (Count 1)

Defendant Hermosura argues that the Court should dismiss Plaintiff’s
§ 1983 claim (Count 1) against him because there are insufficient allegations to
state a claim for relief. ECF No. 43-1 at 7–9. Hermosura also contends that
Plaintiff must meet a heightened pleading standard because the claims are subject
31 

to qualified immunity. ECF No. 59 at 4–6. But this argument was raised for the
first time in reply, so the Court does not consider it. Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1289 n.4 (9th Cir. 2000). The only question is thus whether the
Complaint properly states a claim for relief.
The Complaint does not allege that Hermosura was in any way involved in
Nagamine’s sexual harassment of Plaintiff. Rather, Plaintiff seeks to attribute
liability to Hermosura solely for his involvement in re-hiring Nagamine after
Nagamine allegedly had a prior sexual relationship with an underaged softball
player sometime around 1997. ECF No. 50 at 10–11. In her Opposition, Plaintiff
points to paragraphs 72 through 77 of the Complaint to argue that there are
sufficient allegations to hold Hermosura liable under 42 U.S.C. § 1983 for rehiring Nagamine after the prior relationship. Id. The Court agrees with Hermosura
that the Complaint is insufficient to state a claim against him.
Under 42 U.S.C. § 1983, supervisors may be liable for the constitutional
violations of their subordinates if they are “personally involved” in the
constitutional deprivation or where there is a “causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” Grinston v.
Southern Calif. Rapid Transit Dist., 229 F.3d 1157 (9th Cir. 2000) (citing
MacKinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995)). A causal connection
may be established by evidence that the official “exhibited deliberate indifference
32 

to the rights of [others] by failing to act on information indicating that
unconstitutional acts were occurring.” Johnson v. Newburgh Enlarged Sch. Dist.,
239 F.3d 246, 259 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)). Supervisor liability may also apply where the supervisor implements a
“policy so deficient that the policy ‘itself is a repudiation of constitutional rights’
and is ‘the moving force of the constitutional violation.’” Redman v. Cty. of San
Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (quoting Hansen v. Black, 885 F.2d
642, 646 (9th Cir. 1989)). Under § 1983, “a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
As currently pled, Plaintiff’s allegations against Hermosura are insufficient
to meet this standard. The Complaint does not allege that Hermosura was
personally involved in Plaintiff’s sexual harassment, nor is there an allegation that
he implemented an unconstitutional policy. The Complaint only alleges in a vague
yet conclusory fashion that Hermosura, along with six other defendants, “re-hire[d]
[Nagamine] despite actual knowledge of Nagamine’s having pursued his sexual
interest within the School’s student body of minors.” ECF No. 1 ¶ 74. The
Complaint does not allege what specific information Hermosura was aware of
regarding Nagamine’s past, nor what actions Hermosura took in Nagamine’s re33 

hiring. Indeed, it is unclear whether Hermosura, as a softball coach, had any hiring
authority at Campbell. Moreover, the Complaint makes only vague assertions
regarding Nagamine’s prior sexual relationship. The Complaint’s allegations as
currently pled are insufficient to plausibly state a claim against Hermosura.
Although the Complaint as pled fails to state a claim against Hermosura,
amendment would not necessarily be futile. See, e.g., Harris, 682 F.3d at 1131.
While the Court is skeptical that amendment could save the claim, under Johnson,
239 F.3d at 259, and Grinston, 229 F.3d at 1157, it may be possible for Plaintiff to
state a claim against Hermosura. Hermosura’s arguments to deny plaintiff leave to
amend are unpersuasive for the same reasons discussed with respect to Nagamine’s
Motion.
For these reasons, the Court GRANTS Hermosura’s Motion for Judgment
on the Pleadings on Count 1 WITH LEAVE TO AMEND.
ii.

Title IX Claim (Count 2)

It is unclear whether Plaintiff initially brought her Title IX claim against
Hermosura in his individual capacity. ECF No. 1 at 19–21. Regardless, Plaintiff
concedes that Title IX cannot apply to defendants in their individual capacities.
ECF No. 50 at 11. Thus, Hermosura’s Motion for Judgment on the Pleadings
regarding Plaintiff’s Title IX claim (Count 1) against him is GRANTED.

34 

iii.

State Law Claims (Counts 3–8)

Hermosura argues that if the federal claims against him are dismissed,
Plaintiff’s state law claims should also be dismissed for lack of jurisdiction. ECF
No. 43-1 at 10. Because the Court has granted Plaintiff leave to amend her § 1983
claim and it is unclear whether Plaintiff will retain a federal claim against
Hermosura, the Court will not address jurisdiction over Plaintiff’s state law claims
at this time. See 28 U.S.C. § 1367(c)(3); Souch v. Howard, 27 F. App’x 793, 795
(9th Cir. 2001).
V.

CONCLUSION

For the foregoing reasons:
(1)

The State Defendants’ Motion for Summary Judgment (ECF No.
44) is GRANTED.
a.
b.

(2)

The Court GRANTS the State Defendants’ Motion for
Summary Judgment on Plaintiff’s federal claims (Counts 1–2).
The Court DISMISSES WITHOUT PREJUDICE the remaining
state law claims for lack of jurisdiction (Counts 3–8).

Nagamine’s Motion for Judgment on the Pleadings (ECF No. 39)
is GRANTED in part and DENIED in part.
a.

The Court DENIES Nagamine’s Motion with respect to
Plaintiff’s § 1983 bodily integrity claim (Count 1).

b.

The Court GRANTS WITH LEAVE TO AMEND Nagamine’s
Motion with respect to Plaintiff’s § 1983 Equal Protection
claim (Count 1).

c.

The Court GRANTS Nagamine’s Motion with respect to
Counts 2, 4, and 8.
35 

d.

(3)

The Court GRANTS WITH LEAVE TO AMEND Nagamine’s
Motion with respect to Plaintiff’s Negligence and NIED claims
(Counts 3 and 6).

Hermosura’s Motion for Judgment on the Pleadings (ECF No. 43)
is GRANTED.
a. The Court GRANTS WITH LEAVE TO AMEND Hermosura’s
Motion with respect to Plaintiff’s § 1983 claim (Count 1).
b. The Court GRANTS Hermosura’s Motion with respect to
Plaintiff’s Title IX claim (Count 2).

Because trial is scheduled to begin September 23, 2019, and because
Plaintiff and Defendants have had ample time for discovery and should be
intimately familiar with the claims in this case, Plaintiff’s deadline to file an
amended complaint shall be on an expedited basis. If Plaintiff chooses to file an
amended complaint, Plaintiff must file by July 31, 2019. Plaintiff is cautioned,
however, that leave to amend is granted solely on the claims specified in this
Order. Plaintiff may not add additional defendants or assert new claims without
first seeking leave of court under the appropriate standard.

36 

IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, August 6, 2019.

18-CV-0065 JAO-WRP, Pantastico v. Dep’t of Educ., State of Hawaii –
AMENDED ORDER GRANTING STATE DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART
DEFENDANT NAGAMINE’S MOTION FOR JUDGMENT ON THE
PLEADINGS, AND GRANTING DEFENDANT HERMOSURA’S MOTION
FOR JUDGMENT ON THE PLEADINGS
37