United States District Court, D. Hawaii
ORDER GRANTING STATE DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANT
NAGAMINE'S MOTION FOR JUDGMENT ON THE PLEADINGS, AND
GRANTING DEFENDANT HERMOSURA'S MOTION FOR JUDGMENT ON THE
A. OTAKE, UNITED STATES DISTRICT JUDGE
case concerns the alleged sexual harassment of Plaintiff by
her softball coach at James P. Campbell High School
(“Campbell”) and the school's alleged failure
to prevent it. Plaintiff also asserts that Campbell's
female athletic facilities were not equal to the male
athletic facilities in violation of Title IX. Plaintiff
brings her claims against two defendants in their individual
capacities, Kevin Nagamine and Michael Hermosura, (the
“Individual Defendants”); the State of
Hawai‘i Department of Education; and certain
individuals in their official capacities (collectively the
“State Defendants”). Before the Court are
Nagamine's Motion for Judgment on the Pleadings,
Hermosura's Motion for Judgment on the Pleadings, and the
State Defendants' Motion for Summary Judgment. ECF Nos.
39, 43, 44.
reasons set forth below, the Court GRANTS the State
Defendants' Motion for Summary Judgment, GRANTS IN PART
AND DENIES IN PART Defendant Nagamine's Motion for
Judgment on the Pleadings, and GRANTS Defendant
Hermosura's Motion for Judgment on the Pleadings.
following facts are undisputed. Plaintiff entered Campbell in
2012 and graduated in 2016. ECF No. 1 ¶¶ 38, 39.
She was a standout softball player at Campbell, playing for
both the junior varsity and varsity teams her freshman year
and the varsity team until she graduated. Id.
¶¶ 41, 42, 45; ECF No. 52-2 ¶ 17. Defendant
Kevin Nagamine was the head coach of the junior varsity team
and was an assistant coach of the varsity team. ECF No. 1
¶ 45. Defendant Hermosura was the head varsity softball
coach. ECF No. 52-3 ¶¶ 12, 14.
Complaint alleges that during her time at Campbell, Nagamine
gave Plaintiff special attention by buying her gifts and
snacks, giving her rides to practice, and befriending her.
ECF No. 1 ¶¶ 47-57. Nagamine engaged in
conversations with her about her menstrual cycles and birth
control methods and his own deteriorating marital sex life.
Id. ¶¶ 54, 56. Then, when Plaintiff turned
eighteen years old but was still a student at Campbell, the
two engaged in a sexual relationship. ECF No. 1 ¶ 59.
Defendant Nagamine graduated from high school roughly twenty
years before Plaintiff. See ECF No. 58 at 4.
opposition to the State Defendants' Motion for Summary
Judgment, Plaintiff submitted her own declaration and a
declaration of one of her teammates at Campbell, Kyra
Hoohuli. In her declaration, Plaintiff alleges that Nagamine
often showed her and other teammates photos of naked women on
his phone, complained about his relationship with his wife,
and asked Plaintiff about who she was dating and suggested
she date certain people. ECF No. 52-2 ¶¶ 16, 19,
20, 22, 23, 29, 30, 31. Hoohuli's declaration states that
Nagamine showed the softball players pictures of porn stars
and asked them which one they would rather have sex with; all
of the softball coaches constantly made sexual jokes and
openly discussed which former softball players they would
most like to have sex with; and coach Hermosura told the
players they were getting fat and that they needed to lose
weight or they wouldn't “get any guys.” ECF
No. 52-3 ¶¶ 25-30.
to Plaintiff's declaration, Nagamine's harassment of
Plaintiff increased significantly during her senior year,
when Nagamine began to openly tell Plaintiff that he could
“treat her better” than the person she was dating
and that he would “show her how it was supposed to be
done.” Id. ¶ 32. For Plaintiff's
eighteenth birthday in February of 2016, Nagamine allegedly
gave her a gift bag of sports bras, athletic wear, snacks,
and balloons. Id. ¶ 35. Shortly after that, the
softball team traveled to Maui for a tournament. Id.
¶ 36. One night during the trip, Plaintiff and other
female players were in the coaches' hotel room when
Nagamine allegedly offered her a sip of alcohol and told her
that if she was not comfortable sleeping there, she could
sleep in his room with his daughter. Id.
¶¶ 38-39. When she said she was fine, he insisted
and said that he would carry her to his room if he had to.
Id. Plaintiffs declaration does not indicate what
else, if anything, happened that night. After the trip,
Nagamine began sending Plaintiff approximately ten to fifteen
text messages a day, explicitly stating he wanted to be with
her. Id. ¶ 41. He sent Plaintiff messages such
as “I want to be with you, ” and
“you're all I think about.” Id.
after the trip, Nagamine picked up Plaintiff for practice but
instead drove her to a nearby shopping center. He then told
her that he planned to leave his wife for her. Id.
¶ 42. Plaintiff told him that was not a good idea, but
she also felt uncomfortable disagreeing with him and did not
want to do anything to upset him because he was her coach.
Plaintiff still had to play her senior year under him, which
she believed was critical to her college softball
recruitment. Id. ¶¶ 43-44. Nagamine made
Plaintiff promise not to tell anyone about their potential
relationship, and then forced Plaintiff to kiss him before
taking her to practice. Id. ¶ 46.
that, Nagamine and Plaintiff engaged in a sexual relationship
that Plaintiff felt pressured into continuing. Id.
¶¶ 43, 44, 67. While Plaintiff was still a
senior in high school, Nagamine and Plaintiff had sex in the
back of his truck before practices, and sometimes during
school hours. Id. ¶¶ 50-52. After
graduating from Campbell, Plaintiff began playing softball at
the University of Hawai‘i. ECF No. 52-2
¶¶ 58, 71. Plaintiff and Nagamine
continued their sexual relationship during Plaintiff's
freshman year in college. ECF No. 52-2 ¶¶
58-60. Then, when Nagamine's wife discovered the
relationship in the fall of 2016, she informed
Plaintiff's parents that Plaintiff and Nagamine were
having sex. When Plaintiffs father found out, he brutally
assaulted her. Id. ¶¶ 64-67. After the
assault Plaintiff began suffering from depression and
attempted suicide. Id. ¶¶ 68-70. She no
longer enjoys softball as much as she used to and remains
emotionally distraught. Id. ¶¶ 71-74.
this lawsuit, Plaintiff had not informed the school about the
inappropriate comments Nagamine made or the nude photos he
showed the players. Nor did Plaintiff inform the school about
Nagamine's pursuit of Plaintiff or their sexual
relationship. Plaintiff did, however, inform one of the
assistant coaches about her sexual relationship with
Nagamine: toward the end of her senior year, Plaintiff and
Nagamine were having sex at his house when his wife came
home, and Plaintiff ran from the house. Id.
¶¶ 52-54. She called assistant coach Ryan Palipti
for a ride home and told him what happened. Id.
Complaint also alleges that the State Defendants were aware
that Nagamine had previously had a sexual relationship with
an underaged softball player at Campbell while he was a
coach, but still re-hired him back to the softball program.
ECF No. 1 ¶¶ 67-68, 74; ECF No. 51 ¶ 6.
Hoohuli states in her declaration that “it was well
known that Coach Kevin [Nagamine] was let go from the
Campbell girls' softball program [in or around 1997]
because he was fooling around with an underage softball
player and student at Campbell High.” ECF No. 52-3
¶ 17. It is undisputed that: (1) at the time, Nagamine
was a recent graduate of Campbell; (2) Nagamine married this
player; and (3) Nagamine and this player are still married.
ECF No. 1 ¶¶ 61-65.
filed her Complaint against Nagamine, Hermosura, and the
State Defendants on February 16, 2018. ECF No. 1. She asserts
the following claims against all Defendants: Violation of 42
U.S.C. § 1983 (Count 1); Violations of Title IX for both
sexual harassment and unequal athletic treatment (Count 2);
Negligence (Count 3); Negligent Hiring, Training and
Supervision (Count 4); Battery (Count 5); Negligent
Infliction of Emotional Distress (Count 6); Intentional
Infliction of Emotional Distress (Count 7); Punitive Damages
STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
State Defendants move for summary judgment on all
Plaintiffs' claims. For the reasons set forth below, the
Court GRANTS the State Defendants' Motion for Summary
Judgment on Plaintiff's federal claims (Counts 1 and 2)
and DISMISSES Plaintiff's state law claims (Counts 3-8)
WITHOUT PREJUDICE for lack of jurisdiction.
Standard of Review
judgment is proper when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil
Procedure 56(a) mandates summary judgment “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); see also Broussard v. Univ. of Cal. at
Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323). “When the moving
party has carried its burden under Rule 56[(a)], its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts [and] . . . come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586-87 (1986) (internal quotation
marks and citations omitted). “[A] party opposing a
properly supported motion for summary judgment may not rest
upon the mere allegations or denials of his [or her]
pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(internal quotation marks omitted).
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248). When considering the
evidence on a motion for summary judgment, the Court must
draw all reasonable inferences on behalf of the nonmoving
party. Matsushita Elec. Indus. Co., 475 U.S. at 587;
see also Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that
“the evidence of [the nonmoving party] is to be
believed, and all justifiable inferences are to be drawn in
his [or her] favor”).
Constitutional Violation under 42 U.S.C. § 1983 (Count
initially brought a claim against the State Defendants under
42 U.S.C. § 1983. ECF No. 1 at 17. But in her
Opposition, Plaintiff expressly abandoned that claim against
the State Defendants. ECF No. 52-1 at 13. Thus, the State
Defendants' Motion for Summary Judgment on the §
1983 claim (Count 1) is GRANTED.
Plaintiff's Title IX Sexual Harassment Claim (Count
alleges that the State Defendants are liable for
Nagamine's sexual harassment of her under Title IX. The
State Defendants move for summary judgment on the grounds
that they did not have actual knowledge of the harassment and
did not act deliberately indifferent to Plaintiff's
harassment. See Gebser v. Lago Vista Independent Sch.
Dist., 524 U.S. 274 (1998).
Gebser, the Supreme Court addressed the question of
“when a school district may be held liable . . . for
the sexual harassment of a student by one of the
district's teachers.” 524 U.S. at 277. There, a
high school teacher made sexually suggestive comments to his
students, and then engaged in a sexual relationship with an
underaged student in his class. Id. at 278. The
Court held that, in order to establish damages against a
school district for a teacher's sexual harassment or
abuse of a student under Title IX, a plaintiff must show that
“an official who at a minimum ha[d] authority to
address the alleged discrimination and to institute
corrective measures on the recipient's behalf ha[d]
actual knowledge of discrimination” and responded with
“deliberate indifference.” Id. at
290. Critically, the school district must have had actual
knowledge of the harassment; evidence that a reasonable
official should have known is insufficient to impose
liability on the school district. See Oden v. N. Marianas
Coll., 440 F.3d 1085, 1089 (9th Cir. 2006); Simpson
v. Univ. of Colo. Boulder, 500 F.3d 1170, 1175 (10th
have also held that a school district may be liable where
there is actual knowledge of a teacher's prior sexual
harassment but was deliberately indifferent to it, resulting
in the plaintiff's harm. See, e.g., Doe v.
Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1257-59
(11th Cir. 2010). Under this theory of liability, actual
knowledge of prior similar abuses which put the school on
notice that the teacher was at a “substantial
risk” of abusing other students is sufficient.
Escue v. N. OK Coll., 450 F.3d 1146, 1154 (10th Cir.
2006); Broward, 604 F.3d at 1259; see also
Thomas v. Bd. of Trs. of the Neb. State Colls., 667
Fed.Appx. 560, 562 (8th Cir. 2016). But see Baynard v.
Malone, 268 F.3d 228, 237- 38 (4th Cir. 2001) (holding
that district's liability arises only on actual knowledge
“of the discriminatory conduct in question”).
opposition, Plaintiff does not offer any evidence that the
State Defendants had actual knowledge of Nagamine's
alleged sexual harassment of Plaintiff. In
Plaintiff's Concise Statement of Facts, the only person
alleged to have had actual knowledge of Nagamine's sexual
relationship with Plaintiff is Ryan Palipti, one of the
softball assistant coaches. See ECF No. 51 ¶
15. But there is no indication that Palipti, as an assistant
coach, had the “authority to address the alleged
discrimination and to institute corrective measures on the
recipient's behalf.” Gebser, 524 U.S. at
290; see also DeCecco v. Univ. of S.C., 918
F.Supp.2d 471, 492 (D.S.C. 2013) (finding that a head coach
did not have sufficient authority over assistant coach
harasser to warrant the university's liability, because
the assistant coach reported to the administration not to the
head coach); Baynard v. Malone, 268 F.3d 228 (4th
Cir. 2001) (“It appears that the person who receives
notice of the alleged wrongdoing must have the power to fire
or impose discipline.”). Thus, the State Defendants
cannot be liable based on Palipti's actual knowledge of
Plaintiff's relationship with Nagamine, and Plaintiff
does not argue otherwise.
Plaintiff's theory rests on the allegation that the State
Defendants had actual knowledge that Nagamine had a prior
sexual relationship with an underaged Campbell softball
player while he was a coach, and yet were deliberately
indifferent by re-hiring him. See ECF No. 52-1 at
7-9. But Plaintiff has also failed to offer any evidence that
the State Defendants had actual knowledge of Nagamine's
alleged prior sexual relationship with a student.
Plaintiff's Concise Statement of Facts, Plaintiff alleges
that the State Defendants terminated Nagamine for a prior
sexual relationship with a student. ECF No. 51 ¶¶
2, 6, 7. The evidentiary support for this comes from the
allegations in the Complaint-which are insufficient to defeat
a motion for summary judgment, Anderson, 477 U.S. at
248-and from Hoohuli's declaration. Id. But
Hoohuli's declaration does not establish a genuine issue
of fact about whether the State Defendants had actual
knowledge of Nagamine's alleged prior sexual
relationship. Hoohuli states:
[I]t was well known that [Nagamine] was let go from the
Campbell girls' softball program because he was fooling
around with an underage softball player and student at
Campbell High. He ended up getting her pregnant. The softball
girl that he got pregnant is his current wife[.] . . . It was
also well known that [Nagamine] left the Campbell High School
softball coaching staff twice. The first time was on or
around 1997, when [another coach] found out that [Nagamine]
got [his current wife] pregnant while she was a player and
student on the Campbell team.
ECF No. 52-3 ¶¶ 17, 18, 21, 22.
the Court is aware of the need to draw all reasonable
inferences in favor of Plaintiff here, alleging that
Nagamine's prior relationship was “well
known” is not evidence that someone with sufficient
authority actually knew about it. Constructive knowledge-that
is, what the State Defendants should have known-is
insufficient to impose liability on the State. See
Oden, 440 F.3d at 1089. Further, there is nothing in
Hoohuli's declaration establishing that she has personal
knowledge of what the State Defendants knew about
Nagamine's alleged prior sexual relationship.
See Fed. R. Civ. P. 56(c)(4) (requiring declaration
“be made on personal knowledge” and setting forth
facts “that would be admissible in evidence”);
see also Block v. City of L.A., 253 F.3d 410, 419
(9th Cir. 2001) (abuse of discretion to rely on declaration
not made on personal knowledge). Indeed, at the time of
Nagamine's alleged prior sexual relationship with a
student in 1997, Hoohuli was not even born yet. See
ECF No. 52-3 ¶ 6.
has not established a genuine dispute of fact regarding
whether the State Defendants knew of Nagamine's alleged
prior sexual relationship with a student and then re-hired
him despite this knowledge. ECF No. 51 ¶¶ 2, 6, 7.
Despite ample time to conduct discovery,  Plaintiff
continues to rely on bare allegations and innuendo, which are
insufficient to defeat a motion for summary judgment. See
Githere v. Consolidated Amusement Corp. Inc., 258 Fed.
App'x. 122, 124 (9th Cir. 2007). Thus, because Plaintiff
has failed to present any evidence that the State Defendants
had actual knowledge of any of ...