Maizner v. Hawaii, Dept. of Educ., Civil No. 05-00552 SOM/KSC.

CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)
Writing for the CourtMollway
Citation405 F.Supp.2d 1225
PartiesJeff MAIZNER, Plaintiff, v. State of HAWAII, DEPARTMENT OF EDUCATION and Robert Ginlack, in his individual and official capacity, Defendants.
Docket NumberCivil No. 05-00552 SOM/KSC.
Decision Date01 December 2005
405 F.Supp.2d 1225
Jeff MAIZNER, Plaintiff,
State of HAWAII, DEPARTMENT OF EDUCATION and Robert Ginlack, in his individual and official capacity, Defendants.
Civil No. 05-00552 SOM/KSC.
United States District Court, D. Hawai`i.
December 1, 2005.

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Michael G.M. Ostendorp, argued, Honolulu, HI, for Plaintiff.

Ryan W. Roylo, argued, Office of the Attorney General-Hawaii, Honolulu, HI, for Defendants.


MOLLWAY, District Judge.


In his First Amended Complaint, Plaintiff Jeff Maizner asserts claims against Defendants State of Hawaii, Department of Education ("the DOE"), and Robert Ginlack (collectively, "Defendants").1 Maizner asserts: (1) a violation of the Americans with Disabilities Act ("the ADA") (Claim 1); (2) a violation of chapter 378 of Hawaii Revised Statutes (Claim 2); (3)

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negligent infliction of emotional distress (Claim 3); (4) negligent investigation (Claim 4); and (5) a violation of his due process and equal protection rights under the United States and Hawaii constitutions (Claim 5). Defendants move to dismiss the First Amended Complaint, and Maizner opposes that motion with some concessions.

Because the Eleventh Amendment immunizes the State from liability for retrospective relief, the court dismisses the claims asserting that the State violated the ADA and the federal Constitution, to the extent those claims seek retrospective relief. However, the court declines to dismiss those claims insofar as Maizner seeks prospective relief. Based on Eleventh Amendment immunity, the court dismisses in their entirety all of the state law claims asserted against the State.

The court construes the portion of Claim 5 that asserts a federal constitutional violation by Ginlack as brought under 42 U.S.C. § 1983; the court exercises jurisdiction over that claim. The court dismisses Claim 2 against Ginlack, asserted under chapter 378 of Hawaii Revised Statutes, but retains supplemental jurisdiction over the remaining state law claims against Ginlack.


Defendants bring the present motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is proper only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir.1992). The court must accept as true all allegations of material fact in the complaint and must construe these facts in the light most favorable to the plaintiff. See Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1306 (9th Cir.1992).

Because the State asserts Eleventh Amendment immunity, the court notes that there has been some confusion over whether Eleventh Amendment immunity is a component of this court's subject matter jurisdiction and so must be raised in a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure, rather than under Rule 12(b)(6). Appellate courts have issued seemingly conflicting statements on this point. The Supreme Court, for example, has stated that the "fact that the State appeared and offered defenses on the merits does not foreclose consideration of the Eleventh Amendment issue; `the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar' that it may be raised at any point of the proceedings." Fla. Dep't of State v. Treasure Salvors, 458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) (quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). The Ninth Circuit has similarly stated that "Eleventh Amendment sovereign immunity limits the jurisdiction of the federal courts and can be raised by a party at any time during judicial proceedings or by the court sua sponte." Cal. Franchise Tax Bd. v. Jackson (In re Jackson), 184 F.3d 1046, 1048 (9th Cir.1999); see also Charley's Taxi Radio Dispatch Corp. v. SIDA of Haw., Inc., 810 F.2d 869, 873 n. 2 (9th Cir.1987).

Other appellate decisions, however, have noted that sovereign immunity may be waived. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); ITSI TV Prods., Inc. v. Agric. Assocs., 3 F.3d 1289, 1291-92 (9th Cir. 1993); Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 760, as amended, 201 F.3d 1186 (9th Cir.1999). Under this line

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of cases, Eleventh Amendment immunity is treated as an affirmative defense that the defendant claiming immunity has the burden of demonstrating. ITSI, 3 F.3d at 1291-92.

The Ninth Circuit has attempted to reconcile these cases, calling states' Eleventh Amendment immunity "quasi-jurisdictional." Arizona v. Bliemeister (In re Bliemeister), 296 F.3d 858, 861 (9th Cir.2002). Under Bliemeister, sovereign immunity "may be forfeited where the state fails to assert it and therefore may be viewed as an affirmative defense." Id. In cases subsequent to Bliemeister, the Ninth Circuit has not expressly ruled on whether district courts should apply Rule 12(b)(1) or Rule 12(b)(6) of the Federal Rules of Civil Procedure to claims of Eleventh Amendment immunity. This court need not resolve whether to apply Rule 12(b)(1) or 12(b)(6) to the present motion, as both rules essentially apply the same standard under the circumstances of this case.

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1973, 161 L.Ed.2d 856 (2005). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Id. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Id.; see also Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005) (noting that a party bringing a Rule 12(b)(1) motion may assert "that the allegations in the complaint are insufficient to establish subject matter jurisdiction as a matter of law" or "that the allegations on which jurisdiction depends are not true as a matter of fact" (citation omitted)). In resolving a facial attack, all allegations in the complaint are taken as true. Whisnant, 400 F.3d at 1179. However, in resolving a factual attack, the court need not presume the truthfulness of the plaintiff's allegations. Safe Air, 373 F.3d at 1039.

Because the State's claim of immunity does not challenge the truth of Maizner's allegations, but asserts that they are insufficient on their face to invoke subject matter jurisdiction, the State's attack is facial. Accordingly, whether this court reviews the State's claim of sovereign immunity under Rule 12(b)(6) or 12(b)(1), this court must accept as true the allegations in the First Amended Complaint.


Maizner was hired by the DOE in December 2002 as a special education teacher at Mililani High School. Am. Complaint ¶ 10. Ginlack was the principal of Mililani High School "during the relevant time period," but was replaced by Dr. John Brummel at the start of the 2004-05 school year. Id. ¶¶ 6, 19.

Maizner says he suffers from rheumatoid arthritis, which causes difficulty with walking, performing manual tasks, and working. Id. ¶ 11. According to Maizner, he gave Ginlack three doctor's notes describing his disability on three different occasions, starting on or about April 21, 2003. Id. ¶ 12. Maizner says he asked Ginlack for reasonable accommodations at those times, including permission to wear flip flops when his feet swelled from the arthritis. Id. ¶¶ 12, 14. Maizner alleges that, although Ginlack refused his request to wear flip flops, Ginlack allowed nondisabled employees to wear that footwear to school. Id. ¶ 14.

According to the First Amended Complaint, Ginlack ignored Maizner's requests for accommodations and did not inform Maizner of the formal procedures for requesting accommodations. Id. ¶ 13. Maizner

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says that Ginlack also failed to initiate an interactive process with Maizner to identify the precise limitations caused by his disability and failed to make a good faith effort to identify potential accommodations that could address those limitations. Id. ¶ 15. Maizner also alleges that Ginlack told other employees that he did not believe Maizner had arthritis or was otherwise disabled. Id. ¶ 17. Maizner says Ginlack's statements defamed and humiliated him. Id.

During the 2004 spring semester, Ginlack allegedly took Maizner away from his classroom duties and placed him in a small, windowless room to perform nonteaching administrative tasks. Id. ¶ 16. Maizner says that his new duties required him to sit for long periods of time, which aggravated his disability. Id. Additionally, Maizner alleges that Ginlack prohibited Maizner's students from contacting Maizner while he was performing the administrative duties. Id. ¶ 17.

Maizner says that Brummel replaced Ginlack as the principal of Mililani High School at the start of the 2004-05 school year. Id. ¶ 19. Maizner alleges that, unlike Ginlack, Brummel informed him of the formal procedures for requesting accommodations. Id.

Maizner alleges that, in late 2004 and early 2005, he requested accommodations from the DOE's Office of Civil Rights Compliance. Id. ¶ 20. In response, the DOE allegedly failed to initiate a good faith interactive process with him, to conduct an objective and thorough investigation, or to offer reasonable accommodations. Id.

Maizner alleges that, on January 20, 2005, Dr. Kristine Uramoto, his physician, sent a letter to the DOE, describing the nature of his disability and the resulting limitations. Id. ¶ 21. Maizner says that, even after receiving...

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