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Kimes v. State of Hawaii Department of Education

United States District Court, D. Hawaii

June 20, 2018

THERESA KIMES, individually and as Guardian Ad Litem for her minor daughter, R.K., Plaintiff,


          J. Michael Seabright Chief United States District Judge


         Plaintiff Theresa Kimes (“Kimes”) moves for judgment as a matter of law that the Hawaii Department of Education (the “Hawaii DOE”) acted with deliberate indifference in denying R.K. an accommodation that she needed in order to enjoy meaningful access to the benefits of her public education. ECF No. 132. In the alternative, she moves for a new trial. Id. For the following reasons, Kimes' Motion is DENIED.


         A. Summary of Trial Evidence

         The following is a brief summary of the evidence presented at trial, stated in the light most favorable to upholding the verdict.

         Kimes' daughter, R.K., suffers from multiple health problems, including autism, epilepsy, and asthma, and she receives special education services from the Hawaii DOE. Trial Tr. 4/24/18 (“Tr. day 1”) at 4, 13-14, ECF No. 127. At all relevant times, her individual education program (“IEP”) required that a behavioral support plan (“BSP”) and a crisis plan (“CP”) be implemented and that R.K. be accompanied by a nurse throughout her school day. Id. at 14, 16-21.

         In 2011, R.K. began attending Trumpet Academy (“Trumpet”). Id. at 8. When she first enrolled there, she was nonverbal, had poor social skills, and was prone to outbursts of aggressive and self-injurious behavior. Id. at 8-11; see also Trial Tr. 4/25/18 (“Tr. day 2”) at 31, ECF No. 128. Originally, her BSP and CP at Trumpet allowed Trumpet staff physically to restrain her during such outbursts. Tr. day 2 at 31-32.

         Eventually, however, R.K.'s outbursts became fewer and less severe.

         See id. at 33, 35. According to Kimes,

Trumpet found out and we found out, if you put your hands on [R.K.], it escalates the situation. She would start hitting, slapping, try to get away from the situation. So it would just make the problem worse. We found out, if you didn't put your hands on her, she would - in the escalation, it would go away faster, the meltdown
. . . .
So if you gave her the attention of the outbursts, whatever the tantrum was, if you interacted with her, she would keep going. We learned if you would ignore the behavior and do not interact with her, it would deescalate. But if you gave her any kind of eye contact, verbal command, it - the escalation would be worse.

Tr. day 1 at 27. Trumpet developed alternatives to restraining R.K. Id. at 28-29. And by September 2015, Trumpet's BSP and CP for R.K. stated: “[a]t 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.” Pl.'s Exs. 4-5; see also Tr. day 1 at 26, 30. The plans further specified that R.K. should not be physically moved during an outburst. Pl.'s Exs. 4-5; Tr. day 1 at 26; 28, 30.

         In the fall of 2015, R.K. began the process of transitioning from Trumpet to Mokulele Elementary School (“Mokulele”). Tr. day 2 at 152. Mokulele staff met with staff from Trumpet on a monthly basis during the transition period. Id. at 36-37, 152. Mokulele's principal, Bart Nakamoto (“Nakamoto”), and its special-education teacher, Nicole Carlson (“Carlson”), also visited Trumpet's campus. Id.; Trial Tr. 4/26/18 (“Tr. day 3”) at 72-73. And Trumpet provided R.K.'s BSP and CP to Mokulele. Tr. day 2 at 36-37.

         Desiring a plan that fit specifically the environment at Mokulele, however, Mokulele staff developed their own BSP and CP for R.K. in February 2016. Id. at 163; Tr. day 3 at 100; Pl.'s. Ex. 7. Unlike Trumpet's plans, Mokulele's plans provided that restraint could be used in dealing with R.K.'s outbursts. Tr. day 2 at 164-65; Pl.'s Ex. 7. Kimes testified that she did not authorize this change in R.K.'s plans, Tr. day 1 at 35, 37, but both Nakamoto's and Carlson's testimony suggested that Kimes had been involved in the process of creating Mokulele's plans and had voiced no objection to them. See Tr. day 2 at 166-68; Tr. day 3 at 99-100.

         The incident that gave rise to this lawsuit occurred on March 10, 2016, at Mokulele. Tr. day 2 at 172. That day, R.K. had an outburst during which she left her classroom, climbed an outdoor staircase, and threatened to jump off of it. Id. Nakamoto and Mokulele's Vice Principal, Peter Tovey (“Tovey”), responded, first by trying to coax R.K. off of the stairs and then by physically guiding her down the staircase to a grassy area nearby. See id. at 106, 172-176; Tr. day 3 at 9-13. Once there, they tried unsuccessfully to calm R.K., but she continued to act out by hitting herself and running away. Tr. day 2 at 172-176, 213; Tr. day 3 at 9-13. Eventually, they restrained her by holding ...

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