United States District Court, D. Hawaii
THERESA KIMES, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR HER MINOR DAUGHTER R.K.; AND R.K., MINOR CHILD; Plaintiffs,
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
Michael Seabright Chief United States District Judge.
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
General Factual Background
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.
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.”
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
Crisis Plan for the 2015-2016 school year included the
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”.
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.
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. ¶¶
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