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Hunger v. University of Hawaii

United States District Court, D. Hawai'i

February 26, 2013

Aaron HUNGER, Plaintiff,
UNIVERSITY OF HAWAII; John Does 1-25; Jane Does 1-25, Defendant.

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[Copyrighted Material Omitted]

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Della A. Belatti, Eric A. Seitz, Ronald N.W. Kim, Sarah R. Devine, Law Office of Eric A. Seitz, Honolulu, HI, for Plaintiff.

John-Anderson L. Meyer, Kenneth S. Robbins, Sergio Rufo, Alston Hunt Floyd & Ing, Honolulu, HI, for Defendant.


LESLIE E. KOBAYASHI, District Judge.

Before the Court is Plaintiff Aaron Hunger's (" Plaintiff" ) Motion for Temporary Restraining Order and/or Preliminary and Permanent Injunction (" Motion" ), filed on November 1, 2012. Defendants University of Hawaii (" the University" ), Mary Rita Cooke Greenwood, Dee Uwono, and Ryan M. Akamine (collectively " Defendants" ) filed their memorandum in opposition on November 13, 2012, and Plaintiff filed his reply on November 20, 2012. The portion of the Motion seeking a temporary restraining order (" TRO" ) came on for hearing on November 30, 2012. Appearing on behalf of Plaintiff, who was present, were Eric Seitz, Esq., and Ronald Kim, Esq., and appearing on behalf of Defendants were Kenneth Robbins, Esq., and John-Anderson Meyer, Esq. Plaintiff presented oral testimony at the hearing. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments and evidence submitted at the hearing, and for the reasons set forth below, Plaintiff's Motion is HEREBY DENIED as to Plaintiff's request for a TRO, and DENIED WITHOUT PREJUDICE as to Plaintiff's request for a preliminary and/or permanent injunction.


I. Factual Background

In October 2011, Plaintiff was in the Political Science Ph.D. program at the University, having recently completed his Masters Degree. Plaintiff was accepted into the Masters and Ph.D. program in 1998. [Trans. of 11/30/12 Hrg., filed

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12/6/12 (dkt. no. 27) (" Hrg. Trans." ), at 6.] The circumstances giving rise to the instant case began with an incident which occurred on October 12, 2011 at the University's William S. Richardson School of Law library (" the Law Library" ). According to Plaintiff, he was utilizing the Law Library between classes when he was disturbed by a loud conversation, which included racial and religious epithets, between two students sitting behind him. Frustrated, Plaintiff stood up and shook his head. One of the students, who identified himself as a third-year law student, stood up and confronted Plaintiff. [First Amended Complaint, filed 10/31/12 (dkt. no. 6), at ¶¶ 12-14.] The student asked Plaintiff if he wanted to " take it outside", but Plaintiff refused and moved to another seat farther away. [ Id. at ¶ 16.] A third law student joined in the confrontation, but Plaintiff tried to continue reading. Three security guards and the third student approached Plaintiff as he was about to leave the Law Library. One of the guards asked Plaintiff for identification, and Plaintiff asked to be taken to a side room because they were attracting attention. Plaintiff was eventually taken to a small room, where he was detained. Although he was told that he was not under arrest, he was not allowed to leave and was either pushed into a corner or onto a seat when he attempted to leave. Plaintiff was not given any explanation of why he was being forced to wait. [ Id. at ¶¶ 17-27.] One of the guards said that there had been a report that Plaintiff caused a disturbance and threatened one of the law students. Plaintiff tried to explain his version of the events and told the guards that the surveillance footage would confirm his version. One of the guards said there would be an incident report and Plaintiff and the students would be questioned. [ Id. at ¶¶ 30-32.]

One of the guards also offered to call the police. When the police arrived, one of the officers told Plaintiff the police had been called because Plaintiff had made terrorist threats. Plaintiff's detention continued during the police officers' investigation. Ultimately, Plaintiff received a Trespass Warning and was allowed to leave. [ Id. at ¶¶ 34-36.] At the hearing before this Court, Plaintiff testified that the incident was no more than a verbal dispute; no one struck any blows. Plaintiff denied being the aggressor, and he denied making any threats. [Hrg. Trans. at 7-8.] The Trespass Warning stated, in pertinent part:

This Trespass Warning advises you that your presence is no longer desired at the University of Hawai'i at Manoa. This warning serves as notice to you that you are not to return to said properties or premises for a period of one calendar year from the receipt of this warning. If you violate this warning, you will be subject to arrest and prosecution for the crime of Trespass.
Reference: The Criminal/Simple Trespass Section of the Hawai'i Revised Statutes, section 708-815.

[Motion, Decl. of Eric A. Seitz (" Seitz Decl." ), Exh. A (emphases in original) (Pltf.'s emphasis omitted).]

At the hearing before this Court, Plaintiff testified that either the University security staff or the police officers explained to him that he would have to attend a hearing before he would be allowed back on the campus and that the Dean of Students would contact him. According to Plaintiff, his understanding was that he was barred from the Law Library for at least a year and barred from the entire campus until the hearing. Plaintiff also testified that his University email was shut off and he was instructed not to have

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contact with anyone from the University until the conclusion of the hearing. Plaintiff also understood that there would be criminal charges brought against him. Immediately after the incident, Plaintiff went to his workplace and sought an attorney. Plaintiff retained Joseph W. Lee, Esq. [Hrg. Trans. at 8-9.]

Plaintiff received a letter from Defendant Uwono [1] dated October 19, 2011 (" 10/19/11 Letter" ). The 10/19/11 Letter stated:

I am in receipt of a report alleging behavior in violation of the following sections of the policies E7.208, " University of Hawai'i Systemwide Student Conduct Code" :
IV.B.3. Health or safety— Any conduct which threatens or endangers the health or safety of any person including but not limited to, physical abuse, verbal abuse, threats, intimidation, harassment, coercion, or stalking., [sic]
IV.B.8. Failure to comply and/or provide identification— Failure to comply with any directions of UH officials or law enforcement officers acting in performance of their duties and/or failure to provide identification to these persons when requested to do so.
Specifically, you are alleged to have yelled profanities at two law students inside the Law Library on October 12, 2011. You allegedly threatened the male student by yelling, " Shut the fuck up. You like go outside?" Subsequently, you allegedly got in his face and yelled, " I would cut out your fucking throat." Finally, when Campus Security officers arrived, you allegedly failed to comply by attempting to leave the scene (CS # 2011-1020). Under University policy, my office is designated to investigate these allegations and apply sanctions as appropriate.
Please contact my office at (808)956-4416 by October 31, 2011 4:30 PM to schedule an appointment to discuss this matter. This appointment is a required administrative appointment. Failure to schedule or keep it may jeopardize your continued enrollment at the University of Hawaii at Manoa.
[Seitz Decl., Exh. B at 1 (emphasis in original).] The 10/19/11 Letter directed Plaintiff to a website where he could view the policies and procedures in the University of Hawaii Student Conduct Code (" Student Conduct Code" ). [ Id. ] Defendant Uwono sent the 10/19/11 Letter to Plaintiff's email address and mailing address on file with the University. [ Id. at 2.]

Defendant Uwono then sent Plaintiff an amended version of the 10/19/11 Letter, dated October 20, 2011 (" 10/20/11 Amended Letter" ). The 10/20/11 Amended Letter was identical to the 10/19/11 Letter except that it advanced the deadline for Plaintiff to contact Defendant Uwono's office to October 21, 2011 at 4:30 p.m. [Seitz Decl., Exh. C.]

After Plaintiff received the 10/19/11 Letter and the 10/20/11 Amended Letter, he turned them over to Mr. Lee and asked Mr. Lee what he should do. [Hrg. Trans. at 9.] Mr. Lee attempted to contact Defendant Uwono. Mr. Lee made approximately sixteen calls to her and left messages through November 1, 2011, but she did not return the majority of his calls. She called him back two or three times, but he was unavailable to take her call. Mr. Lee and Defendant Uwono finally spoke on or about November 1, 2011, but Defendant Uwono stated that she would only discuss the incident directly with Plaintiff. [Motion, Decl. of Joseph W. Lee (" Lee Decl." ) at ¶¶ 2-5.] Plaintiff testified that Mr. Lee

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instructed him to try to call Defendant Uwono and Plaintiff " made a phone call with another professor[.]" [Hrg. Trans. at 10.] Plaintiff intended to record the call and to ask Defendant Uwono if he could have an attorney present when he met with her. According to Plaintiff, Defendant Uwono's assistant told him that Defendant Uwono would not take his call and that it was improper for him to call her. She would call him. Plaintiff testified that he attempted on a total of three occasions to call Defendant Uwono. [ Id. ]

Defendant Uwono sent Plaintiff a letter dated November 1, 2011 (" 11/1/11 Letter" ). It stated that her office notified him, by way of the 10/19/11 Letter and the 10/20/11 Amended Letter, of the complaints of his infractions of the Student Conduct Code and required him to contact her office to schedule a meeting to discuss the matter. The 11/1/11 Letter stated that the 10/20/11 Amended Letter advanced the deadline for Plaintiff to contact Defendant Uwono's office because of " the egregiousness of the alleged violations[.]" [Seitz Decl., Exh. D at 1.] The 11/1/11 Letter repeated the policies at issue and Plaintiff's alleged conduct, and the letter noted that Plaintiff had not responded to either the 10/19/11 Letter or the 10/20/11 Amended Letter. Defendant Uwono therefore found Plaintiff to have violated sections IV.B.3 and IV.B.8 of the Student Conduct Code and imposed the following sanctions:

1. Suspension
Start Date: Monday, October 31, 2011
Complete by: Wednesday, October 31, 2012
Due to the egregiousness of the incident discussed above and in consideration of all the information I have gathered, including the Campus Security report and statements from the reporting person and witnesses, I regret to inform you that you are hereby Suspended from the University of Hawai'i at Mâ noa [sic] for one academic year (effective date indicated above). You will be eligible for re-enrollment for the Spring 2013 semester. Should you wish to return to the University, you must reapply for ...

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