United States District Court, D. Hawaii
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Richard L. Puglisi, United States Magistrate Judge
18, 2018, Defendant's Motion for Summary Judgment came on
for hearing. Brian K. Mackintosh, Esq. appeared on behalf of
Plaintiff; Derek T. Mayeshiro, Esq. appeared on behalf of
Defendant. After carefully considering the parties'
submissions, the relevant legal authority, and the arguments
of counsel at the hearing, the Court GRANTS Defendant's
a former student at the John A. Burns School of Medicine,
University of Hawaii at Manoa, filed this action on September
11, 2016, alleging that he was discriminated against on the
basis of his disability in violation of Section 504 of the
Rehabilitation Act of 1973, as amended, and Title II of the
Americans with Disabilities Act of 1990 (“ADA”),
as amended. See ECF No. 1.
the Court granted Defendant's Motion for Judgment on the
Pleadings, Plaintiff filed a Second Amended Complaint.
See ECF Nos. 35, 36. On January 16, 2018, the Court
granted in part and denied in part Defendant's Motion to
Dismiss Second Amended Complaint. ECF No. 45. In that Order,
the Court declined to recognize a claim for hostile education
environment. Id. The Court also dismissed with
prejudice all of Plaintiff's claims that were based on
acts that occurred prior to September 11, 2012, because such
claims were barred by the applicable statute of limitations.
Id. The Court stated that Plaintiff's claims
based on acts that occurred on or after September 11, 2012,
are not time barred and remain pending. Id.
present Motion, Defendant asks the Court to dismiss all of
Plaintiff's claims as barred by the law of the case
doctrine and to grant summary judgment to the extent any of
Plaintiff's claims remain. See ECF No. 46.
Defendant's Request to Dismiss Plaintiff's Second
Amended Complaint As Barred Under the Law of the Case
Doctrine is DENIED.
Federal Rule of Civil Procedure 12(b)(6), a complaint must be
dismissed if it fails “to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). Review
under Rule 12(b)(6) is generally limited to the contents of
the complaint. Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
Plaintiff's allegations of material fact are taken as
true and construed in the light most favorable to Plaintiff.
Id. Dismissal is appropriate under Rule 12(b)(6) if
the facts alleged do not state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
present Motion, Defendant argues that all of Plaintiff's
claims must be dismissed under the law of the case doctrine.
“Under the law of the case doctrine, a court is
generally precluded from reconsidering an issue previously
decided by the same court if the issue in question was
decided explicitly or by necessary implication in the
previous disposition.” E.E.O.C. v. Glob. Horizons,
Inc., 904 F.Supp.2d 1074, 1091 (D. Haw. 2012) (quoting
United States v. Lummi Indian Tribe, 235 F.3d 443,
452 (9th Cir. 2000)). As noted above, the Court previously
ruled that Plaintiff cannot assert a claim for hostile
educational environment because such a claim is not
recognized in the Ninth Circuit. ECF No. 45. Defendant argues
that Plaintiff only asserts hostile environment
claims in the Second Amended Complaint and therefore
Plaintiff's claims must be dismissed because they are
barred under the law of the case doctrine. ECF No. 46-1 at
on the Court's review of the allegations in the Second
Amended Complaint and the liberal pleading standards that
apply, the Court finds that Plaintiff's Second Amended
Complaint articulates a claim for discrimination based on
Defendant's discrete acts. The Court agrees with
Defendant that the allegations contained under the headings
“Count I” and “Count II” of the
Second Amended Complaint only reference a hostile
environment. See ECF No. 36 ¶¶ 170, 173.
However, other allegations in the Second Amended Complaint
specifically allege that Defendant discriminated against
Plaintiff through specific acts. Specifically, Plaintiff
alleges that Defendant, through the actions of the
Chancellor's Designee, “discriminated against
[Plaintiff] because of his disability and violated his rights
as a disabled person.” Id. ¶ 161. This
allegation is sufficient for the Court to consider the merits
of Plaintiff's claims for discrimination based on
Defendant's specific acts. Accordingly, Defendant's
request to dismiss the Second Amended Complaint under the law
of the case doctrine is DENIED.
All of Plaintiff's Claims Based on Acts That Occurred
Prior to September 11, 2012, Were Dismissed with Prejudice in
the Court's Prior Order.
addressing Defendant's request for summary judgment, the
Court must address Plaintiff's attempt to revive claims
that were previously dismissed with prejudice. As expressly
stated in the Court's prior Order, all claims based on
acts that occurred prior to September 11, 2012, are time
barred. ECF No. 45. These claims were expressly dismissed
with prejudice. Id. Further, the Court held that the
only claims that remained pending were claims based on acts
that occurred on or after September 11, 2012. Id.
The only specific act alleged in the Second Amended Complaint
that occurred on or after September 11, 2012, is the
September 11, 2012 denial by the Chancellor's Designee,
Vassilis Syrmos, of Plaintiff's appeal of the decision
finding no discrimination by Dr. Jerris Hedges and Dr.
Richard Smerz. ECF No. 36 ¶¶ 152-161.
Opposition to the present Motion, Plaintiff states that he
“now also alleges that [Vice Chancellor Reed
Dasenbrock's] active concealment of the Fact Finders
Report constitutes another specific action, the injury of
which came to pass on September 11, 2012.” ECF No. 55.
The Court rejects Plaintiff's attempt to resurrect this
time-barred claim by stating that the “injury”
from this action “came to pass on September 11,
2012.” Id. In the Second Amended Complaint,
Plaintiff alleges that he requested the Fact Finder's
Report from Vice Chancellor Dasenbrock on July 9, 2012. ECF
No. 36 ¶ 145. Further, Plaintiff alleges that he
submitted additional requests for the Report on July 18,
2012, and July 19, 2012, with copies of the request sent to
the Office of General Counsel and the Chancellor's
office. Id. ¶¶ 146-148. Plaintiff alleges
that he submitted his appeal without the benefit of the
Report on July 20, 2012. Id. ¶ 149. All of the
acts related to the Fact Finder Report as alleged in the
Second Amended Complaint occurred before September 11, 2012.
Plaintiff was “injured” when he was not provided
with a copy of the Fact Finder Report as requested and when
he submitted his appeal without the benefit of the Report,
all of which occurred in July 2012, before the four-year
statute of limitations. See De Anza Props. X, Ltd. v.
Cnty. of Santa Cruz, 936 F.2d 1084, 1086 (9th Cir. 1991)
(“The statute of limitations begins to run when a
potential plaintiff knows or has reason to know of the
asserted injury.”). This time-barred claim was
dismissed with prejudice in the Court's prior order. The
only claims that remain in this action are Plaintiff's
claims related to the September 11, 2012 denial of
Plaintiff's appeal of the decision finding no
discrimination by Dr. Jerris Hedges and Dr. Richard Smerz.
ECF No. 36 ¶¶ 152-161.
Defendant's Request for Summary Judgment on