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Kimes v. Matayoshi

United States District Court, D. Hawaii

October 16, 2017

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

          J. Michael Seabright Chief United States District Judge.

         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 special-education 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 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 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. 19:24-21:11. 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.

         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 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 ...


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