Nakamura v. Univ. of Hawai‘i

• Decision Date: 07 November 2019
• Docket Number: NO. CAAP-16-0000095,CAAP-16-0000095
• Citation: 451 P.3d 875 (Table)
• Parties: Bruce Ryan NAKAMURA, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI‘I, Defendant-Appellee
• Court: Hawaii Court of Appeals

451 P.3d 875 (Table)

Bruce Ryan NAKAMURA, Plaintiff-Appellant,

v.UNIVERSITY OF HAWAI‘I, Defendant-Appellee

NO. CAAP-16-0000095

Intermediate Court of Appeals of Hawai‘i.

November 7, 2019.

On the briefs:

Bruce Ryan Nakamura, Self-represented Plaintiff-Appellant.

Carrie K. S. Okinaga, Derek T. Mayeshiro, Associate General Counsel, Honolulu, for Defendant-Appellee.

Paul Alston, Honolulu, John-Anderson L. Meyer, Maile Osika, for Defendant-Appellee.

(By: Ginoza, Chief Judge, Fujise and Hiraoka, JJ.)

MEMORANDUM OPINION

Self-represented Plaintiff-Appellant Bruce Ryan Nakamura (Nakamura ) was a student at, and a part-time employee of, Defendant-Appellee University of Hawai‘i (UH ). He claims that UH failed to stop another UH student from "attempting to impose a relationship on" him by subjecting him to "unwanted advances or unwanted flirting." Nakamura appeals from the Judgment in favor of UH entered by the Circuit Court of the First Circuit (Circuit Court )¹ on September 18, 2015. Nakamura contends that the Circuit Court erred by granting UH's motion for summary judgment, denying his motion for reconsideration, and failing to allow him to file a second amended complaint. For the reasons explained below, we affirm the Judgment.

I.

Nakamura's original complaint was filed on August 29, 2013.² Named as defendants were Honolulu Community College (HCC ) and seven individuals who were alleged to be HCC employees. Each individual defendant moved to dismiss the complaint. The Circuit Court granted the motions to dismiss. Nakamura filed two motions for leave to amend his complaint (it appears that the second motion was filed to correct errors in the proposed amended complaint attached to the first motion). The Circuit Court granted leave to amend.

Nakamura’s amended complaint was filed on December 19, 2013. It was sixty-six pages long and contained 214 numbered paragraphs. UH was the only named defendant. The amended complaint alleged that Nakamura worked part-time as a lab monitor in UH’s HCC computer lab. A female student (JC ) was a regular user of the computer lab. Nakamura claimed that JC sexually harassed him by pursuing him romantically in the HCC computer lab and in the HCC parking lot. Nakamura alleged that JC is mentally ill, and that he "does not have an organic brain syndrome

also known as a mental illness." He claimed to have written to an HCC mental health specialist complaining about JC’s behavior, "but all six letters were totally ignored." He claimed to have written six more letters to an HCC vice-chancellor asking for intervention, but the vice-chancellor "never confirmed talking with [JC] about [Nakamura]'s complaints."

Nakamura claimed to have had a conference with three HCC employees "to discuss the problem of [JC]'s unwanted advances." He claimed to have asked for recordings of HCC's parking lot security cameras, but was told there was no video available. After another alleged incident occurred off-campus (on the street where JC allegedly lives), Nakamura claimed to have written nine letters to an HCC vice-chancellor complaining about JC's alleged behavior. The vice-chancellor and an HCC mental health specialist telephoned Nakamura and asked to see him in person. Nakamura asked them why. They did not answer. Nakamura became upset. The vice-chancellor cut off the call. The vice-chancellor then allegedly sent Nakamura a letter "denying his complaint." Nakamura claimed to have written "a total of [sixty-seven] letters all over the place" complaining about JC's alleged actions before "his patience ran out[.]"

Nakamura allegedly also reported JC's behavior to the police but was told "that he had to give [JC] [a] warning that she is bothering [him] before the police can get involved." Nakamura claimed to have randomly encountered JC on the HCC campus mall and told her the "police told me to warn you that if you continue to sit directly in front of me [in the computer lab], the police will be called." JC reported Nakamura to HCC, and an HCC vice-chancellor sent Nakamura a letter "threatening ... in polite language that I will be kicked off all HCC campuses if [JC] accuses me of harassment again." Later, JC allegedly attempted "to take revenge on [Nakamura] by again falsely accusing him of harassing and/or following her, and DEMANDING that he be kicked out from the [HCC] cafeteria or she would report HCC to a higher authority." (Capitalization in original.)

Nakamura's amended complaint purports to state causes of action for: (1) failure to stop prima facie sexual harassment; (2) failure to stop harassment; (3) failure to stop unwanted advances; (4) gross negligence; (5) dereliction of duty; (6) deliberate indifference; and (7) failure to promote an academic environment conducive to learning. In addition to an award of damages, the amended complaint seeks to have letters of reprimand or censure sent to various HCC employees and to transfer some of them to middle and elementary schools, and a letter "to advise [JC] not to jump to negative conclusions if she sees [Nakamura] on the HCC campus, its cafeteria, on [the street where JC allegedly lives], which is a public street with public sidewalks or the University of Hawaii campus or anywhere else."

On March 3, 2015, UH filed a motion for summary judgment (MSJ ). An order granting UH's MSJ was entered on August 12, 2015. Nakamura moved for reconsideration. An order denying reconsideration was entered on December 8, 2015. This appeal followed.

II.

UH notes — accurately — that Nakamura's opening brief fails to comply with Rule 28(b)(3), (4), and (7) of the Hawai‘i Rules of Appellate Procedure (HRAP ) (eff. 2015). UH contends that we should disregard Nakamura's points of error pursuant to HRAP Rule 28(b)(4) and dismiss his appeal. However, because Nakamura is self-represented, and because it is our policy to reach the merits of an appeal if possible, Housing Fin. & Dev. Corp. v. Ferguson, 91 Hawai‘i 81, 85-86, 979 P.2d 1107, 1111-12 (1999) (quoting Bettencourt v. Bettencourt, 80 Hawai‘i 225, 230, 909 P.2d 553, 558 (1995) ), we will address Nakamura's arguments to the extent we can ascertain them. See also O'Connor v. Diocese of Honolulu, 77 Hawai‘i 383, 386, 885 P.2d 361, 364 (1994).

A.

Nakamura contends that the Circuit Court erred by granting UH's MSJ. We review a circuit court's grant of summary judgment de novo using the same standard applied by the circuit court. Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai‘i 331, 338, 418 P.3d 1187, 1194 (2018). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. at 342, 418 P.3d at 1198. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Id.

Count I of Nakamura's amended complaint alleged sexual harassment. Sexual harassment is a form of discrimination prohibited by Hawaii Revised Statutes (HRS ) § 378-2 (Supp. 2012).³ Nelson v. Univ. of Hawai‘i, 97 Hawai‘i 376, 387, 38 P.3d 95, 106 (2001). There are two different forms of sexual harassment: "quid pro quo" and "hostile environment." Id. "Quid pro quo" cases involve allegations that an employer conditioned employment benefits on sexual favors. Id. That situation is not presented here. "Hostile environment" sexual harassment (HESH ) is defined as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when ... [t]hat conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Id. (quoting Hawaii Administrative Rules § 12-46-109(a)(3) ). To prove an HESH claim a claimant must show that:

(1) [they were] subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature;

(2) the conduct was unwelcome;

(3) the conduct was severe or pervasive;

(4) the conduct had the purpose or effect of either:

(a) unreasonably interfering with the claimants work performance, or

(b) creating an intimidating, hostile, or offensive work environment;

(5) the claimant actually perceived the conduct as having such purpose or effect; and

(6) the claimant's perception was objectively reasonable to a person of the claimant's gender [identity] in the same position as the claimant.

Id. at 390, 38 P.3d at 109 (reformatted). Nakamura's opening brief concedes that there are no facts supporting the "sexual element" of his HESH claim, and states that he "has decided to drop Count 1 Failure [sic] to stop prima facie sexual harassment." The Judgment is affirmed as to Count 1.

Counts 2 and 3 claim that UH failed to stop JC's alleged "harassment" and "unwanted advances." To the extent those counts could be construed to plead sexual harassment, summary judgment was appropriate because of Nakamura's concession that there are no facts supporting the "sexual element" of an HESH claim. To the extent those counts could be construed to allege some other tort claim, such as negligence, "[a] basic tort principle is that breach of a legal duty is an essential element of any cause of action[.]" Fink v. Kasler Corp., 3 Haw. App. 270, 273, 649 P.2d 1173, 1175 (1982) (citations omitted). The general rule is that a person does not have a duty to act affirmatively to protect another person from harm. Lee v. Corregedore, 83 Hawai‘i 154, 159, 925 P.2d 324, 329 (1996). Exceptions to this general rule exist where there is a "special relationship" between a "defendant and either the third person who may threaten harm or the party who is the [potential] victim of the harm[.]" Knodle v. Waikiki...