Doe ex rel. Doe v. Keala

• Decision Date: 11 February 2005
• Docket Number: No. CIV.00-00044 ACK/KSC.,CIV.00-00044 ACK/KSC.
• Citation: 361 F.Supp.2d 1171
• Parties: John DOE, a Minor, (born 01/28/90) by his Next Friend, Jane Doe, and Jane, Doe, Individually, Plaintiffs, v. David KEALA, Defendant.
• Court: U.S. District Court — District of Hawaii

361 F.Supp.2d 1171

John DOE, a Minor, (born 01/28/90) by his Next Friend, Jane Doe, and Jane, Doe, Individually, Plaintiffs, v. David KEALA, Defendant.

No. CIV.00-00044 ACK/KSC.

United States District Court, D. Hawai'i.

February 11, 2005.

COPYRIGHT MATERIAL OMITTED

Stanley E. Levin, Davis Levin Livingston Grande, Edie A. Feldman, Law Office of Edie A. Feldman, Honolulu, HI, for Plaintiffs.

Russell A. Suzuki, Cindy S. Inouye, Office of the Attorney General — Hawaii, Heidi M. Rian, Laurence K. Lau, Office of the Attorney General — State of Hawaii, Awilda R. Marquez, Attorney General of Hawaii, Dept of the Attorney General, State of HI, John Cregor, Jr., Office of the Attorney General — Hawaii, Nelson Y. Nabeta, Gary Hynds, Department of the Attorney, General-State of Hawaii, Employment Law Division, Kathleen N.A. Watanabe, James Earl Halvorson, Department of the Attorney, General-State of Hawaii, Department of Education, Honolulu, HI, Defendants.

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT OF THE SPECIAL MASTER ON PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS, DEFENDANT DAVID KEALA'S BILL OF COSTS AND PLAINTIFFS' MOTION TO STRIKE DEFENDANT DAVID KEALA'S NOTICE OF BILL OF COSTS

KAY, District Judge.

BACKGROUND AND PROCEDURAL HISTORY¹

On January 14, 2000, Plaintiffs John ("John") and Jane Doe ("Jane") filed a complaint against the State of Hawaii Department of Education ("State D.O.E."), A-Plus Program, Herman Aizawa ("Aizawa"), Ralph Murakami ("Murakami"), Maude Yamakawa ("Yamakawa"), Sonia Zane ("Zane"), and David Keala ("Keala") (collectively "Defendants"),² based on two incidents that occurred at Pukalani Elementary School while John Doe was a second grade student: (1) the alleged assault on John Doe by Zane (an employee of the A-PLUS Program at Pukalani School) on or about February 4, 1998 and (2) the alleged taping of John Doe's head to a tree by Keala (a vice-principal of Pukalani School at the time) on or about February 19, 1998. In their Complaint filed January 14, 2000, Plaintiffs asserted the following claims in the Complaint: Count 1 (Violation of 42 U.S.C. § 1983 ("Section 1983") and 42 U.S.C. § 1981), Count 2 (Negligence and Gross Negligence), Count 3 (False Imprisonment), Count 4 (Assault and Battery), Count 5 (Negligent Infliction of Emotional Distress), Count 6 (Violation of Title IX), Count 7 (Violation of Hawaii Revised Statutes ("HRS") § 302A-1001 ("302A-1001 Claim")), Count 8 (Loss of Consortium), and Count 9 ("Punitive Damages").³

On November 29, 2001, this Court issued an Order Granting in Part and Denying in Part Defendant Keala's Motion for Judgment on the Pleadings and for Summary Judgment ("November 29, 2001 Order"), finding in part that Defendant Keala was not entitled to the defense of qualified immunity and could be held civilly liable for damages brought pursuant to Section 1983.⁴ The November 29, 2001 Order also dismissed Plaintiffs' Section 1983 claims against Defendant Keala in his official capacity. See November 29, 2001 Order at 11-12, n. 7. Subsequently, Keala appealed the qualified immunity issue to the Ninth Circuit and on January 15, 2002, the Court granted Keala's Motion to Stay Pending Appeal.

Plaintiffs filed a First Amended Complaint on February 6, 2002 setting forth an additional claim for violation of the Rehabilitation Act ("Section 504"). Plaintiffs alleged that the State did not follow regulations implementing Section 504 before imposing discipline on John. See First Am. Compl. ¶ 41-49. Plaintiffs also asserted claims for (2) Violation of Section 1983, (3) Negligence and Gross Negligence, (4) False Imprisonment, (5) Assault and Battery, (6) Negligent Infliction of Emotional Distress, (7) Violation of HRS § 302A-1001, (8) Loss of Consortium, and (9) Punitive Damages.

On June 12, 2002, the deadline to file dispositive motions, Zane filed a Motion for Judgment on the Pleadings ("Zane's MJP"), the State Defendants a filed a Motion for Judgment on the Pleadings and for Summary Judgment ("State's MJP/MSJ"), and Plaintiffs filed a Motion for Partial Summary Judgment ("Plaintiff's MPSJ"). On June 24, 2002, Plaintiffs filed an Amended and Supplemental Memorandum of Law in Support of Motion for Partial Summary Judgment Filed June 12, 2002 ("Supplemental Memo"). On July 1, 2002, the State Defendants filed a Motion to Strike the Supplemental Memo. Following a number of disputes with respect to these motions and other issues, the parties stipulated in mid-July 2002, to stay the above motions until the Ninth Circuit issued a decision on Keala's interlocutory appeal on the qualified immunity issue.

On June 20, 2003, the Ninth Circuit affirmed the Court's November 29, 2001 decision. See Doe v. State, 334 F.3d 906 (9th Cir.2003). The parties reinstated their motions in October and November of 2003. In her MJP, Zane argued, among other things, that she was entitled to judgment on the pleadings on all of the state law claims except Count 5 (Assault and Battery) and on Count 2 (Section 1983) because she was entitled to qualified immunity. The State's MJP/MSJ raised numerous arguments, including without limitation: (1) State agencies and the administrators as officials were not liable for federal civil rights violations under § 1983, (2) the Administrators (Aizawa, Murakami and Yamakawa) are not individually liable for alleged violations of federal laws under § 1983, (3) the State Defendants are not liable for violations of Section 504, (4) the State Defendants are not liable for alleged violations of state laws, (5) the Administrators are not individually liable for alleged violations of state laws, (6) punitive damages are inappropriate. Plaintiffs' MPSJ ruested partial summary judgment on issues of liability under Section 504 on grounds that (1) the State and A-Plus are liable under respondeat superior; (2) Keala, acted with deliberate indifference; (3) John was denied a free appropriate education; and (4) A-Plus violated Section 504. On December 18, 2003, Plaintiffs filed a "Counter-Motion for Summary Judgment" with their opposition to Defendant's MJP/MSJ ("Plaintiff's Counter-MSJ") requesting that the Court grant summary judgment on the waiver of the Eleventh Amendment defense by Keala in his official capacity. After a few scheduling changes, the above motions (as well as the State's Motion to Strike) were set for hearing on February 2, 2004.

On December 24, 2003, Defendants served upon Plaintiffs a Rule 68 Offer of Judgment pursuant to Fed.R.Civ.P. 68. See Exhibit B to Defendant Keala's Memorandum in Opposition to Plaintiffs' Motion for an Award of Attorneys' Fees and Costs ("Offer of Judgment"). The Offer of Judgment stated, in pertinent part:

Defendants State of Hawai'i Department of Education, A-Plus Program at Pukalani Elementary School, Defendants Maude Yamakawa, Herman Aizawa, Ralph Murakami, David Keala and Sonia Zane in the official capacities, and Defendants David Keala, Maude Yamakawa, Herman Aizawa and Ralph Murakami in their individual capacities, by and through their attorneys of record, pursuant to Fed.R.Civ.P. 68, hereby offer to allow judgment to be taken against the Defendants in their official capacities in the amount of Ninety Thousand Two Hundred Fifty ($90,250.00), inclusive of all allowable attorneys fees and costs accrued to date, which sum is to be paid by the State of Hawai'i.

This Offer of Judgment is conditioned upon the Plaintiffs' dismissal with prejudice of Defendants David Keala, Maude Yamakawa, Ralph Murakami and Herman Aizawa in their individual capacities with regard to all claims that are or could have been brought in this action, including any and all claims for attorneys' fees and costs.

This Offer of Judgment is conditioned upon its acceptance by Plaintiffs. This Offer shall be in complete satisfaction of all liability, damages, injuries, and claims against the State Defendants in the above-entitled action had or asserted by Plaintiffs.

Offer of Judgment. The parties agree that the Offer was not accepted by Plaintiffs.

The Court heard oral argument on the motions on February 2, 2004. At the hearing, the parties averred that they reached a settlement agreement dismissing Zane from the lawsuit;⁵ Zane's MJP was withdrawn from consideration.

On February 23, 2004, the Court issued an Order Dismissing Plaintiffs' Counter-Motion for Summary Judgment; Granting in Part and Denying in Part State Defendants' Motion to Strike; Granting in Part and Denying in Part State Defendants' Motion for Judgment on the Pleadings and Summary Judgment; and Denying Plaintiffs' Motion for Summary Judgment ("February 23, 2004 Order"). Summarizing, the Court (1) dismissed Plaintiff's Counter-MSJ on grounds that it was not timely filed, (2) denied the State's Motion to Strike as to the expert witness disclosure, (3) found that Plaintiffs had not properly plead their purported IDEA claims, (4) dismissed Aizawa in his individual and official capacities based on Plaintiffs' conceded abandonment of claims, (5) dismissed Plaintiffs' 302A-1001 Claim on grounds that Plaintiffs did not assert any facts or allegations in support of their complaint and on Plaintiffs' conceded abandonment of this claim, (6) dismissed the Section 504 claims against Defendants Murakami and Yamakawa in their individual capacity because Section 504 cannot support a lawsuit against a public official in his or her individual capacity, (7) dismissed the Section 504 claims against the State Defendants on grounds that the Plaintiffs could not show exclusion from benefits or services, or discrimination, and could not show that any Defendant intentionally discriminated or acted with deliberate indifference toward John, (8) dismissed the Section 1983 claim against the State Defendants based on Eleventh Amendment immunity,⁶ (9) dismissed Plaintiffs' state law claims against the State D.O.E., A-Plus, and Murakami and Yamakawa in their official capacity, based on ...