United States District Court, D. Hawaii
K.S-A, a minor and J.S-A, a minor by and through Joshua Douglas Franklin, as their Guardian Ad Litem Plaintiffs,
Hawaii School District Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
FIRST AMENDED COMPLAINT FILED ON AUGUST 22, 2017
C. Kay, Sr. United States District Judge.
reasons set forth below, the Court GRANTS Defendant's
Motion to Dismiss First Amended Complaint Filed on August 22,
2017, ECF No. 73. The Court dismisses the First Amended
Complaint WITHOUT PREJUDICE.
March 15, 2016, Plaintiffs K.S-A, a Native Hawaiian minor
child aged 10 years old, and J.S-A, a Native Hawaiian minor
child aged nine years old (“Plaintiffs”), by and
through Joshua Douglas Franklin, their biological father, as
their Guardian Ad Litem filed a Complaint against Hawaii
School District, Hilo-Waiakea Complex, Brad Bennett, and Erin
Williams. ECF No. 1. On the same date,
Plaintiffs also filed a Motion to Appoint Guardian Ad Litem.
ECF No. 6. On March 23, 2016, Magistrate Judge Barry M.
Kurren granted that Motion. ECF No. 23. On May 13, 2016,
Hawaii School District, Hilo-Waiakea Complex, Brad Bennett,
and Erin Williams filed an Answer to the Complaint. ECF No.
7, 2017, Plaintiffs filed a Motion to Amend the Complaint,
ECF No. 66, which Magistrate Judge Kenneth Mansfield granted on
August 21, 2017. ECF No. 71. On August 22, 2017,
Plaintiffs filed their First Amended Complaint
(“FAC”) solely against Defendant Hawaii School
District. ECF No. 72. On September 1, 2017, Defendant filed a
Motion to Dismiss First Amended Complaint under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6)
(“Motion”). ECF No. 73. On November 22, 2017,
Plaintiffs filed an Opposition to Defendant's Motion to
Dismiss (“Opposition”). ECF No. 90. On December
4, 2017, Defendant filed a Reply to Plaintiffs'
Opposition (“Reply”). ECF No. 92. The Court
held a hearing on Defendant's Motion to Dismiss on
December 18, 2017.
alleges that Plaintiffs were enrolled at public schools
within the Hawaii School District, which receive federal
funding as contemplated by Title IX, 20 U.S.C. § 1681.
FAC ¶ 9. Plaintiffs further allege that they are
perceived by other students to be gay or bisexual or to
identify with being gay or bisexual. Id. ¶ 2.
Since 2012, Plaintiffs have been subjected to ongoing
pervasive harassment in Hawaii public elementary schools on
the basis of their perceived sexual orientation and the
failure to conform to gender stereotypes. Id. ¶
8. Specifically, Plaintiffs have been subjected to a constant
stream of verbal abuse and harassment from other students,
being called a number of slurs related to their sexuality.
Id. ¶ 11.
allege that this persistent harassment is often committed in
the presence of Defendant's administrators, teachers, and
counselors who fail to take appropriate required action and
instead minimize the harassment as mere name-calling.
Id. ¶ 13. The FAC discusses in detail incidents
that exemplify this behavior. See id. ¶¶
14-20. In addition to this harassment, Plaintiffs have been
subjected to physical violence. Id. ¶¶
of this conduct, Plaintiffs' father removed Plaintiffs
from several schools on the Island of Hawaii. See
id. ¶¶ 29, 34-36, 38. Before and after
removing Plaintiffs from the schools at issue,
Plaintiffs' father filed numerous complaints about
teachers and administrators with Defendant. Id.
¶ 39. Plaintiffs allege that Defendant has failed to
investigate these complaints and take action against teachers
and administrators who are the subject of them. Id.
Defendant has also denied Plaintiffs' father geographic
exemptions for his children in retaliation for his complaints
about teachers and administrators. Id. ¶ 41.
on the aforementioned allegations, and others, Plaintiffs
allege claims for violations of: (1) civil rights under Title
IX of the Education Amendments of 1972, 20 U.S.C. §
1681(a); (2) 42 U.S.C. § 1983 based on Plaintiffs'
equal protection rights; (3) right to privacy; and (4)
negligent infliction of emotional distress. Id.
importantly, as related to this Motion, Plaintiffs allege
that Hawaii School District is part of a state-wide education
system, which is divided into seven Districts. Id.
¶ 3. Each District is subdivided into Complex Areas,
which are further divided into at least one complex that each
comprise an elementary and middle school that feed into a
high school. Id. ¶ 3.
to Federal Rule of Civil Procedure 12(b)(1), a party may move
to dismiss a complaint based on a lack of subject matter
jurisdiction. “[T]he party asserting subject matter
jurisdiction has the burden of proving its existence.”
Robinson v. United States, 586 F.3d 683, 685 (9th
Cir. 2009) (citation omitted).
jurisdictional attack may be either facial or factual.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). “In a facial attack, the challenger
asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By
contrast, in a factual attack, the challenger disputes the
truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.” Id. “In
resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary