United States District Court, D. Hawaii
THERESA KIMES, individually and as Guardian Ad Litem for her minor daughter, R.K., Plaintiff,
STATE OF HAWAII DEPARTMENT OF EDUCATION, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT AS
A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW
TRIAL, ECF NO. 132
Michael Seabright Chief United States District Judge
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.
Summary of Trial Evidence
following is a brief summary of the evidence presented at
trial, stated in the light most favorable to upholding the
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.
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
however, R.K.'s outbursts became fewer and less severe.
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.
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.
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.
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 ...