Theresa Kimes v. Kathryn Matayoshi ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA KIMES, Individually and as No. 18-16249
Guardian Ad Litem for her minor daughter
R.K., D.C. No.
1:16-cv-00264-JMS-RLP
Plaintiff-Appellant,
v. MEMORANDUM*
KATHRYN MATAYOSHI, in her official
capacity as Superintendent of the State of
Hawaii Department of Education; NICOLE
CARLSON; BURT NAKAMOTO; PETER
TOVEY; STATE OF HAWAII
DEPARTMENT OF EDUCATION,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief District Judge, Presiding
Submitted October 24, 2019**
Honolulu, Hawaii
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 5
1. To recover damages on her Rehabilitation Act claim against the
Department of Education (DOE), Theresa Kimes was required to show not only
that school officials denied R.K. a reasonable accommodation, but also that they
did so with deliberate indifference. Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th
Cir. 2008). To prove deliberate indifference, Kimes had to show that DOE
(1) knew that its actions would likely result in a violation of R.K.’s right to an
equal public education and (2) took those actions anyway. Mark H. v. Hamamoto,
620 F.3d 1090, 1102 (9th Cir. 2010). The jury returned a special verdict that found
DOE did not act with deliberate indifference. The jury’s finding is supported by
substantial evidence.
Kimes alleged that school officials denied R.K. a reasonable accommodation
in four different respects. First, she argued that DOE adopted a Behavior Support
Plan (BSP) that inappropriately authorized the use of restraints and that DOE did
so without input from R.K.’s previous school. However, the jury heard testimony
that DOE met monthly with administrators from R.K.’s previous school in the
lead-up to creating its own BSP, and that DOE justified its authorization of
restraints in part because R.K.’s new school had 350 students, whereas her former
school had only 10. DOE also offered evidence that Kimes herself had attended
the meeting at which R.K.’s BSP was developed and the restraint techniques were
authorized, and that Kimes had raised no objection. Relying on this evidence, the
Page 3 of 5
jury could reasonably have concluded that DOE thought its BSP would adequately
protect R.K.’s rights.
Second, Kimes alleged that DOE denied R.K. a reasonable accommodation
when school officials forcibly restrained her on March 10, 2016. Several witnesses
testified that this decision responded to R.K.’s verbal and physical threats to kill
herself and occurred after half an hour of attempted de-escalation. The jury could
reasonably have concluded that school officials decided to restrain R.K. to protect
her, and thus meant to further her right to safe education, not hinder it.
Third, Kimes alleged that DOE took impermissible disciplinary action
against R.K. for behavior stemming from her disability. The Supreme Court has
held that, “where a student poses an immediate threat to the safety of others,
officials may temporarily suspend him or her for up to 10 schooldays” without
violating the Individuals with Disabilities Education Act. Honig v. Doe, 484 U.S.
305, 325 (1988). The jury heard that the disciplinary actions taken against R.K.
amounted to no more than two isolated half-day suspensions, both on days when
R.K. had acted violently toward others. The jury thus could reasonably have found
that DOE believed these suspensions did not violate R.K.’s federally protected
rights.
Fourth, Kimes challenged DOE’s decision to prohibit R.K.’s nurse from
accompanying her onto campus on March 11, 2016. DOE employees testified that
Page 4 of 5
the school had a back-up nurse that day and that officials were in the process of
communicating with R.K.’s previous school to request that they send another
nurse. This testimony supports a finding that DOE did not know it was likely R.K.
would be deprived of her right to a safe education, but rather intended that she
receive necessary support from these other nurses.
Ample evidence supports the jury’s determination that DOE was not
deliberately indifferent to R.K.’s needs. The district court therefore correctly
denied Kimes’ motion for judgment notwithstanding the verdict.
A similar analysis governs the district court’s denial of Kimes’ motion for a
new trial. New trials should be granted when the jury’s “verdict is contrary to the
clear weight of the evidence.” Silver Sage Partners, Ltd. v. City of Desert Hot
Springs, 251 F.3d 814, 819 (9th Cir. 2001) (internal quotation marks omitted).
Because the jury’s verdict was supported by substantial evidence, the district court
did not abuse its discretion in denying Kimes’ request for a new trial. See Hung
Lam v. City of San Jose, 869 F.3d 1077, 1085 (9th Cir. 2017).
2. We affirm the district court’s grant of summary judgment to defendants
on Kimes’ state law claims. Under Hawaii law, state officials are shielded by a
conditional privilege unless they act with malice. Towse v. State, 647 P.2d 696,
701–02 (Haw. 1982). We need not decide whether Kimes is correct that deliberate
indifference suffices to show malice for purposes of overcoming a conditional
Page 5 of 5
privilege. Cf. Awakuni v. Awana, 165 P.3d 1027, 1042 (Haw. 2007). At the
summary judgment stage, Kimes relied on the same evidence to establish
deliberate indifference that she later presented at trial to prove her Rehabilitation
Act claim. As discussed above, the jury expressly found that evidence was
insufficient to establish deliberate indifference, a finding that is amply supported
by the trial record. Thus, the individual officials are shielded from liability on
Kimes’ state law claims, so those claims would have failed had the district court
permitted them to go to trial.
AFFIRMED.