MICHELLE SHORES AND DANE SHORES, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR SON B.S. v. NIKITA HAY, PSY.D.; KURT HUMPHREY, M.D.; JANE AND/OR JOHN DOES 1-25, DOE ENTITIES 1-10
CIV. NO. 21-00455 LEK-WRP
UNITED STATES DISTRICT COURT DISTRICT OF HAWAII
August 21, 2023
Case 1:21-cv-00455-LEK-WRP Document 63 Filed 08/21/23 Page 1 of 29 PageID.566
On April 24, 2023, Plaintiffs Michelle Shores (“Mrs. Shores“) and Dane Shores (“Mr. Shores“), individually and on behalf of their minor son B.S., (collectively “Plaintiffs“) filed their Motion for Partial Summary Judgment as to Liability (“Plaintiffs’ Motion“). [Dkt. no. 31.] Also on April 24, 2023, Defendants Nikita Hay, Psy. D., (“Dr. Hay“) and Kurt Humphrey, M.D., (“Dr. Humphrey” and collectively “Defendants“) filed their Motion for Summary Judgment on All Claims (“Defendants’ Motion for Summary Judgment“). [Dkt. no. 34.] On July 7, 2023, Defendants filed their memorandum in opposition to Plaintiffs’ Motion (“Opposition to Plaintiffs’ Motion“). [Dkt. no. 48.] On July 8, 2023, Plaintiffs filed their memorandum in opposition to
The Court found these matters suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules“). See EO, filed 7/25/23 (dkt. no. 60). On July 27, 2023, the Court issued an entering order informing the parties of its summary ruling denying Plaintiffs’ Motion and granting Defendants’ Motion for Summary Judgment. [Dkt. no. 61.] This Order supersedes that entering order. Plaintiffs’ Motion is hereby denied, and Defendants’ Motion for Summary Judgment is hereby granted in part and denied in part for the reasons set forth below.
BACKGROUND
I. Relevant Allegations
Mrs. Shores and Mr. Shores (“Parents“) are B.S.‘s adoptive parents. [Complaint for Declaratory Relief and Damages (“Complaint“), filed 11/22/21 (dkt. no. 1), at ¶ 8.] B.S. suffers from numerous mental and emotional health conditions and is eligible for services and programs under the
II. Relevant Facts
During the 2019-2020 academic school year (“SY 2019-20“), B.S. was a student within the Hawai`i State Department of Education (“DOE“), and the DOE was responsible for providing B.S. with a public education. See Defs.’ Concise Statement of Material Facts (“Defs. CSOF“), filed 4/24/23 (dkt. no. 35), at ¶¶ 1-3; Pltfs.’ Concise Statement of Facts in Opposition to Defendants’ Motion for Summary Judgment (“Pltfs.’ Responsive CSOF“), filed 7/8/23 (dkt. no. 51), at pg. 2 (admitting Defs.’
During SY 2019-20, Dr. Hay and Dr. Humphrey were employed by the Hawai`i State Department of Health (“DOH“) Child and Adolescent Mental Health Division (“CAMHD“). During some of SY 2019-20, B.S. received his education and related IEP services at Detroit Behavioral Institute Capstone Academy (“Capstone“) in Michigan. See Defs.’ CSOF at ¶¶ 11-13; Pltfs.’ Responsive CSOF at pg. 2. “By at least December of 2019, B.S.‘[s] parents . . . were aware that B.S.‘[s] placement at Capstone required termination.” [Defs.’ CSOF at ¶ 14; Pltfs.’ Responsive CSOF at pg. 2.]
Around November 2019, B.S.‘s IEP team began efforts to place B.S. in another treatment program. Dr. Hay evaluated B.S. and submitted a report to Parents and the IEP team. See Pltfs.’ Concise Statement of Facts in Support of Motion for Partial Summary Judgment as to Liability (“Pltfs.’ CSOF“), filed 4/24/23
In a January 30, 2020 letter, signed by Dr. Humphrey for Dr. Hay, Parents were informed that B.S. was going to be discharged from Capstone, and Capstone requested that B.S. be discharged as soon as possible. The letter stated that the DOH would place B.S. in the CAMHD‘s Residential Crisis Stabilization Program (“RCSP“) if Parents consented. If they did not consent, then B.S. would be returned to Parents’ care. The change was to take effect on February 9, 2020. See Defs.’ CSOF, Decl. of Kurt Humphrey (“Humphrey Decl.“), Exh. E (Notice of Action, dated 1/30/20 (“Notice of Action“)).
An Interstate Compact on the Placement of Children (“ICPC“) Request form for B.S. was signed by the receiving state - i.e., Michigan - on June 29, 2018. See Defs.’ CSOF, Decl. of Janet Ledoux (“Ledoux Decl.“),2 Exh. F (“B.S.‘s ICPC Request“) at 1. According to B.S.‘s ICPC Report on Child‘s Placement Status (“B.S.‘s ICPC Report“), signed on October 29, 2020, B.S.‘s placement at Capstone was terminated on February 13, 2020, and the report indicated he was transferred to Hawai`i. See id. at 2; see also Humphrey Decl., Sealed Exh. C (Detroit Behavioral Institute Capstone Academy - Residential Discharge Summary, stating B.S. was released from Capstone on February 12, 2020).3
When B.S. arrived in Hawai`i, Plaintiffs did not take B.S. back into their custody, and Dr. Hay notified Child Welfare
On February 7, 2020, Plaintiffs filed a due process request. See Seitz Decl., Exh. 4 (Order Granting Petitioner‘s Motion for Entry of ‘Stay Put’ Order) at 2. On March 11, 2020, a hearings officer for the State Department of the Attorney General‘s Office of Dispute Resolution issued an Order Granting Petitioners’ Motion for Entry of ‘Stay Put’ Order, ordering that B.S. remain placed at a private residential facility while the due process request was pending. See generally id. In May 2020, B.S. was transported to a residential treatment program in Kansas. See Pltfs.’ CSOF at ¶ 21; Defs.’ Responsive CSOF at
In Plaintiffs’ Motion, Plaintiffs seek summary judgment against Defendants as to the issue of liability because, according to Plaintiffs, Defendants violated
In Defendants’ Motion for Summary Judgment, Defendants argue summary judgment is appropriate because: (1) Dr. Hay is an improper defendant for any Fourteenth Amendment claim; (2) there is no private right of action under Article I of the Hawai`i Constitution; (3) Dr. Hay and Dr. Humphrey are improper defendants under the IDEA and Rehab Act; (4) any claim under the IDEA fails because Plaintiffs did not exhaust the administrative remedy process; (5) Dr. Hay is entitled to qualified immunity; and (6) Plaintiffs’ medical malpractice claim fails because Plaintiffs have not provided any expert opinion. See Defs.’ Motion for Summary Judgment at PageID.197-98.
DISCUSSION
I. Defendants’ Motion to Strike
On June 21, 2023, Defendants filed their Motion to Strike Plaintiffs’ Motion for Partial Summary Judgment as to Liability [DKTS 31-32] (“Motion to Strike“). [Dkt. no. 44.] On
In the Motion to Strike, Defendants request that the Court strike Plaintiffs’ Motion because Plaintiffs purportedly failed to comply with Local Rule 7.8 when they did not meet and confer with Defendants regarding Plaintiffs’ Motion. See Motion to Strike at 3-6. Plaintiffs argue they complied with Local Rule 7.8. See generally Pltfs.’ Opp. to Motion to Strike. After reviewing the parties’ submissions, the Motion to Strike ultimately amounts to he-said-she-said. Moreover, in light of the importance of the issues raised in Plaintiffs’ Motion, the Court declines to make any finding regarding the contentions raised in connection with the Motion to Strike. The Motion to Strike is therefore denied.
II. Plaintiffs’ Motion
Plaintiffs’ Motion consists of only two and a half pages of argument as to why they are entitled to summary judgment as to the issue of liability. See Pltfs.’ Motion, Mem. of Law at 1-3. Plaintiffs make arguments that Defendants are not entitled to summary judgment as to their claims against
Moreover, it appears Plaintiffs contend that Defendants violated B.S.‘s right to a free appropriate public education (“FAPE“) under the IDEA, and they therefore seek to vindicate such a violation. Plaintiffs’ IDEA claim against Defendants is confusing because Plaintiffs initially requested a due process hearing under the IDEA against the DOE. See Defs.’ CSOF, Decl. of Custodian of Records - Michelle M.L. Puu (“Puu
Plaintiffs have not proffered any evidence that they have exhausted their administrative remedies under the IDEA. Moreover, Plaintiffs seek monetary damages and, thus, insofar as
III. Defendants’ Motion for Summary Judgment
A. Plaintiffs’ Count I
1. Section 1983 Claims
Plaintiffs allege their Fifth and Fourteenth Amendment claims against Dr. Hay in her individual and official capacity and against Dr. Humphrey in his official capacity. It is undisputed that, at the time of the alleged events, both Dr. Hay and Dr. Humphrey were DOH employees. See Defs.’ CSOF at ¶¶ 11-13; Pltfs.’ Responsive CSOF at pg. 2. Plaintiffs’ claims against Dr. Hay and Dr. Humphrey in their official capacities are claims against the State. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials in their official capacity therefore should be treated as suits against the State.” (citation omitted)). “[N]either a State nor its
Insofar as Plaintiffs bring Fifth Amendment due process claims against Dr. Hay in either her individual capacity or her official capacity, and Dr. Humphrey in his official capacity, those claims necessarily fail as a matter of law because “the Fifth Amendment‘s due process clause only applies to the federal government.” See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (some citations omitted) (citing Betts v. Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942)). Because Plaintiffs are not raising claims against the federal government, summary judgment must be granted in favor of Defendants as to Plaintiffs’ Fifth Amendment claims against them.
Further, because Plaintiffs bring their Fourteenth Amendment due process claims against Defendants in their official capacities, the State is entitled to Eleventh Amendment immunity. See Will, 491 U.S. at 66 (“That Congress, in passing
As to Plaintiffs’ Fourteenth Amendment due process claim against Dr. Hay in her individual capacity, Plaintiffs do not allege whether the claim is regarding substantive or procedural due process. Regardless,
“[i]n a
§ 1983 action, the plaintiff must demonstrate that the defendant‘s conduct was the actionable cause of the claimed injury.” Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). Such causation “can be established” either “by some kind of direct personal participation in the deprivation” or “by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Gini v. Las Vegas Metro. Police Dep‘t, 40 F.3d 1041, 1044 (9th Cir. 1994) (quoting Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987)).
Plaintiffs allege the due process violation occurred when Defendants “unilaterally, arbitrarily, and deliberately den[ied] B.S. adequate, reasonable, and essential programs and services including, but not limited to the ‘special education and related aids and services’ provided to students with disabilities to ‘meet [the] individual education needs of [those students] as adequately as the needs of non[disabled] persons are met.[‘]” [Complaint at ¶ 23 (quoting
Under
- Is provided special education and related services:
- In conformance with an IEP that meets the requirements of sections 8-60-44 through 8-60-49; and
- At no cost to the parents;
- Is provided an education that meets the standards that apply to education provided by the [DOE] including the [DOE]‘s responsibility to ensure the provision of a FAPE and the requirements of the [IDEA]; and
- Has all of the rights of a student with a disability who is served by the [DOE].
“In implementing section 8-60-29, the [DOE] shall monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires.”
Although, in Hawai`i, the DOE and the DOH are required “to work together to provide the services necessary to enhance the likelihood of positive learning outcomes for students with disabilities, . . . [u]ltimately, . . . [the] DOE is responsible for ensuring that its students receive appropriate special education services.” Mark H. v. Hamamoto, 620 F.3d 1090, 1093 (9th Cir. 2010).
Here, Dr. Hay would sometimes participate in B.S.‘s IEP meetings. See Hay Decl. at ¶ 11. In November 2019, Dr. Hay completed a clinical psychological evaluation of B.S. “to make
Once Capstone decided to discharge B.S., Dr. Hay attempted to acquire Parents’ consent to authorize a new placement. See e.g., id. at 2 (“To pursue either of these options, we would first need your consent.“). In finding out that Capstone was discharging B.S., Parents requested an emergency IEP team meeting. See id. (“This meeting was called as an emergency meeting yesterday . . . . However, I understand that there was not a lot of notice as this meeting is in reaction to the information we discussed on Wednesday. Thanks for the information, we will take it to the IEP meeting today.“). Even though Dr. Hay could not attend the emergency
Viewing the “evidence in the light most favorable to Plaintiffs as the nonmoving parties,” see Harris v. Cnty. of Orange, 17 F.4th 849, 855 (9th Cir. 2021) (brackets, quotation marks, and citation omitted), there is not a genuine dispute of material fact as to whether Dr. Hay‘s “conduct was the actionable cause of the claimed injury,” see Chaudhry, 68 F.4th at 1169 (quotation marks and citation omitted). There is no evidence that Dr. Hay caused Capstone‘s request that B.S. be transferred as soon as possible. Dr. Hay worked for the DOH - not Capstone or the DOE. Once Capstone decided to discharge B.S., Dr. Hay attempted to work with Parents to have B.S. transferred to RCSP.
Plaintiffs also appear to take issue with B.S. being sent back to Hawai`i after being discharged from Capstone. See e.g., Complaint at ¶ 17. Insofar as Plaintiffs’ Fourteenth Amendment due process claim stems from those events, summary judgment in favor of Dr. Hay is also appropriate. Under
The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency‘s state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. . . .
Here, an ICPC request was completed for B.S. At the time of B.S.‘s transfer to Capstone, the ICPC stated that B.S.‘s “Current Legal Status” was “Parent Relative Custody/Guardianship.” [Ledoux Decl., Exh. F at 1 (B.S.‘s ICPC Request).] B.S.‘s ICPC Report stated B.S. was being transferred from Capstone to the sending state, i.e., Hawai`i, because his treatment was completed. See id. at 2 (B.S.‘s ICPC Report). Dr. Hay attempted to receive Parents’ consent to have B.S. transferred to RCSP. See, e.g., Hay Decl., Exh. H (email from Dr. Hay to Parents, dated 2/10/20). In a text message to Dr. Hay, Mr. Shores stated: “I‘m in a meeting with my boss. What is the emergency? Our lawyer is on a flight to the mainland right now so we cannot get legal counsel to sign any additional consent forms until sometime tomorrow.” [Id., Exh. I
Under
There is insufficient evidence to create a genuine issue of fact for trial as to whether Dr. Hay was the cause-in-fact of B.S. getting discharged from Capstone or being sent back to Hawai`i. Conversely, the evidence shows Dr. Hay requested the Parents to either complete consent forms so that B.S. could be placed at another facility or take custody of B.S. after he arrived in Hawai`i. Parents refused both requests because, in part, they wanted to consult their attorney first. But, Dr. Hay‘s attempts and contacts with Parents do not, without
2. Claim Under the Hawai`i Constitution
Plaintiffs also bring a due process claim under Article I Section 5 of the
1) The entry of a judgment declaring that the Defendants’ unilateral removal of B.S. from his I.E.P. placement and transportation of B.S. back to Hawaii without any suitable placement were unlawful and violated rights guaranteed to the Plaintiffs and B.S. by the Rehabilitation Act,
3. Section 504 of the Rehab Act Claim
At the onset, Plaintiffs’ Rehab Act claim is unclear. They allege in the introduction to their Complaint that Defendants “violat[ed] [the] rights guaranteed to Plaintiffs and
Section 504 of the Rehab Act states, in pertinent part:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by
Because Plaintiffs bring their § 504 claim against Dr. Hay and Dr. Humphrey in their official capacities, that claim is treated as a claim against the DOH. See Gomez v. Vernon, 255 F.3d 1118, 1126 (9th Cir. 2001) (“A suit, like this one, against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself.” (citation omitted)). Section 504 applies to the DOH if it is a state department that receives federal funding. See
To prevail on a Section 504 claim, a plaintiff must show:
- he is a qualified individual with a disability;
- the school receives federal financial assistance; and,
- he was excluded from participating in, denied the benefits or services of, or
A.G. v. Paradise Valley Unified School Dist. No. 69, 815 F. 3d 1195, 1204 (9th Cir. 2016); Doe v. State of Hawaii Dep‘t of Education, 351 F. Supp. 2d 998, 1012 (D. Haw. 2004).
To receive damages pursuant to Section 504, a plaintiff must show the public entity acted with intent to deny him the benefits of a public education. T.B. ex rel. Brenneise v. San Diego Unified School Dist., 806 F.3d 451, 467 (9th Cir. 2015). Intent is demonstrated by showing either intentional discrimination or deliberate indifference. Mark H. v. Hamamoto, 620 F.3d 1090, 1097-98 (9th Cir. 2010).
Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood. A.G., 815 F.3d at 1204 (citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)). Ricks v. Matayoshi, CIV. NO. 16-00044 HG-KSC, 2017 WL 1025170, at *6 (D. Hawai`i Mar. 16, 2017).
Here, there is no evidence that the DOH initiated or caused B.S.‘s transfer from Capstone. The DOH, therefore, could not have “acted with intent to deny him the benefits of a public education” because it was not the “entity” that caused B.S.‘s discharge from Capstone. See id. Plaintiffs’ Rehab Act claim fails, then, insofar as the claim is based on the DOH purportedly discharging B.S. from Capstone.
Plaintiffs’ Rehab Act claim also fails because they have not proffered sufficient evidence to raise a genuine issue
4. IDEA Claim
There is not a genuine issue of material fact as to Plaintiffs’ IDEA claim because they did not exhaust their administrative remedies. See supra Discussion Section II. In any event, insofar as Plaintiffs seek a remedy for a purported violation of B.S.‘s right to a FAPE, their claim
B. Plaintiffs’ Count II - Medical Malpractice
Under
But, the Court points out that, if it had chosen to rule on the medical malpractice claim, Plaintiffs fail to present any expert testimony on the requisite standard of care required for a medical negligence claim. See Craft v. Peebles, 78 Hawai`i 287, 298, 893 P.2d 138, 149 (1995). Giving Plaintiffs the benefit of the doubt, it appears they invoke the “common knowledge” exception. See, e.g., Opp. to Defs.’ Motion for Summary Judgment at 3 (“Unlike typical medical cases where the diagnoses or performance of medical procedures are at issue, in this case the finders of fact do not need and will not benefit from the opinions of an expert who will testify that by
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to Strike Plaintiffs’ Motion for Partial Summary Judgment as to Liability [DKTS 31-32], filed June 21, 2023, is HEREBY DENIED; Plaintiffs’ Motion for Partial Summary Judgment as to Liability, filed April 24, 2023, is HEREBY DENIED; and Defendants’ Motion for Summary Judgment on All Claims, filed April 24, 2023, is HEREBY GRANTED IN PART AND DENIED IN PART. Defendants’ Motion for Summary Judgment is GRANTED to the extent that summary judgment is GRANTED in favor of Defendants as to Count I. Defendants’ Motion for Summary Judgment is DENIED to the extent
In light of the Court‘s rulings, the September 18, 2023 nonjury trial date and all trial-related dates and deadlines are VACATED. If reconsideration of the instant Order is granted, a trial re-setting conference will be held.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 21, 2023.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MICHELLE SHORES, ET AL. VS. NIKITA HAY, PSY.D., ET AL; CV 21-00455 LEK-RT; ORDER: DENYING DEFENDANTS’ MOTION TO STRIKE; DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT