The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER (1) DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION AND/OR FOR CLARIFICATION RE: ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT; AND (2) DENYING DEFENDANTS' REQUEST FOR CLARIFICATION REGARDING ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court are (1) Plaintiffs Mark H. and Rie H.'s, individually and as guardians ad litem of Michelle H. and Natalie H. (collectively "Plaintiffs"), Motion for Reconsideration and/or for Clarification Re: Order Denying Plaintiffs' Motion for Partial Summary Judgment ("Plaintiffs' Motion"), filed February 14, 2012, and (2) Defendants Patricia Hamamoto, in her official capacity as Superintendent of the Department of Education, and the State of Hawai`i Department of Education's (collectively "Defendants" or "the DOE") Request for Clarification Regarding Order Denying Plaintiffs' Motion for Partial Summary Judgment ("Defendants' Motion"), filed on February 16, 2012. Plaintiffs filed their memorandum in opposition on March 1, 2012, and Defendants filed their memorandum in opposition on March 2, 2012. The parties filed their respective replies on March 19, 2012. The Court finds these matters suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the motions, the supporting and opposing memoranda, and the relevant legal authority, this Court HEREBY DENIES both motions.
The parties and the Court are familiar with the extensive factual and procedural background of this case. The Court therefore will only discuss the background that is relevant to the instant motions.
Following the most recent remand from the Ninth Circuit, Mark H. v. Hamamoto ("Mark H. #2"), 620 F.3d 1090 (9th Cir. 2010), Plaintiffs filed a Motion for Partial Summary Judgment ("summary judgment motion") regarding liability for their claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs argued in their summary judgment motion that eight factual findings effectively resolved in Plaintiffs' favor all issues of liability,*fn1 including deliberate indifference under the standard articulated by the Ninth Circuit in Mark H. #2.
In its January 31, 2012 Order ("Order"), the Court denied Plaintiff's summary judgment motion, concluding that:
Although the question is a close one, the Court cannot say, drawing all justifiable inferences in favor of the non-moving party for purposes of summary judgment, that Plaintiffs have met their burden of demonstrating that there is no genuine issue of material fact that the DOE deliberately failed to act. That is, the Court cannot determine, on the current record, whether the DOE's failure to act was merely negligent, or contained the required element of deliberateness. A reasonable jury, weighing the evidence at trial, could possibly find that the DOE was not deliberately indifferent. See Button v. Bd. of Regents of Univ. & Cmty Coll. Sys. of Nev., No. 06--16231, 289 Fed. Appx. 964 (9th Cir. Aug. 14, 2008) ("It is not enough that the Board took some action-in Duvall the court made some effort to accommodate, but we held that a jury could find this effort both insufficient and deliberate. This inquiry is nuanced and fact-intensive - precisely the province of the jury."); Roe v. Nev., 621 F. Supp. 2d 1039, 1060 (D. Nev. 2007) ("Whether a local government entity has displayed a policy of deliberate indifference is generally a question for the jury." (quoting Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992))).
Mark H. v. Hamamoto, Civil No. 00--00282 LEK--RLP, 2012 WL 299679, at *15 (D. Hawai'i Jan. 31, 2012).
Plaintiffs argue that they are entitled to summary judgment because the DOE is liable for deliberate indifference as a public entity based on its constructive knowledge. [Mem. in Supp. of Plaintiffs' Motion at 7.] They argue that City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001), Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002), and Mark H. #2 support holding a public entity liable for damages under the circumstances presented here.
They also argue that they are entitled to summary judgment because the DOE is liable on a respondeat superior basis for the deliberate indifference of relevant DOE employees based on knowledge imputed to those employees. [Id. at 13.] Plaintiffs state that:
The DOE employees responsible for providing services to Michelle and Natalie had a duty to investigate, and they would have discovered through the exercise of reasonable diligence that Michelle and Natalie needed autism specific services, that those services were available as a reasonable accommodation, and that a failure to provide those services would violate their federally protected rights and subject them to the risk of serious harm. [Id.]
Next, Plaintiffs assert that clarification of eight issues is necessary in order to narrow and define the issues for trial. The requests for clarification relate to the substance of how the Court will instruct the jury, and whether specific evidence and testimony will be admissible at trial. [Id. at 16-25.]
A. Defendants' Opposition
In their memorandum in opposition, Defendants argue first that Plaintiffs have not met the standard for reconsideration where their motion reiterates arguments originally made in support of their summary judgment motion, and second, that Plaintiffs improperly seek rulings by the Court in the guise of "clarification," which are more appropriately addressed in Motions in Limine, settling of jury instructions, and formal briefing and argument to this Court. [Mem. in Opp. to Plaintiffs' Motion at 1.]
As to their first argument, Defendants assert that Plaintiffs have merely reiterated arguments fully briefed and considered by this Court, and therefore, their motion fails to present any valid basis for reconsideration of the Order. They argue that, to the extent Plaintiffs have argued that this Court did not expressly rule on portions of their arguments in support of the motion for summary judgment, "such argument is without merit, as this Court's findings and ruling in denying Summary Judgment subsumed all of Plaintiffs' arguments as presented in the [summary judgment motion] itself and the additional argument presented in the Reply." [Id. at 6.]
Defendants further argue that Plaintiffs' Motion presents new legal theories that they failed to raise with respect to the underlying summary judgment motion. Specifically, that deliberate indifference can be found with respect to whether the DOE or its employees adequately investigated whether autism-specific services could be provided to Michelle and Natalie. They note that Mark H. #2 does not define the deliberate indifference standard as being satisfied by way of constructive knowledge of what ...