NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA KIMES, Individually and as Guardian Ad Litem for her minor daughter R.K.,
Plaintiff

- Appellant,

v. 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. No. 18

- 16249
D.C. No. 1: 16

- cv - 00264

- JMS

- RLP

MEMORANDUM *

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). 

# FILED

OCT 28 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSPage 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 d eliberate indifference, Kimes had to show that DOE (1) knew that its actions would likely result in a violation of R.K. ’s r ight 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. Th e jury’s finding i s supported by
substantial evidence

. Kimes al leged that school officials denied R.K. a reasonable accommodation in four different respects

. First , she argue d 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 pr evious 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, t hePage 3 of 5

jury could reasonably have concluded that DOE thought its BSP would adequately
protect R.K

. ’s rights.
Second , Kimes allege d that DOE denied R.K. a reasonable accommodation
when school officials forcibly restrained her on March 10, 2016. S everal 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 ed ucation , not hinder it

. Third , Kimes allege d 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,
off icials 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). T he jury heard that the disciplinary actions taken against R.K.
amounted to no m ore 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 the se suspensions did not violat e R.K.’s federally protected right s
. Fourth , Kimes challenge d DOE’s decision to prohibit R.K.’s nurse from accompanying her onto campus on March 11 , 2016 . DOE employees testified thatPage 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 s he
receive necessary support from these other nurses

. Ample evidence supports t he jury’s determination that DOE was not deliberately indifferent to R.K.’s needs

. The district court therefore correct ly
denied Kimes’ motion for judgment notwithstanding th e 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 Sp rings , 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. 19 82 ). W e need not decide whether Kimes is correct that deliberate
indifference suffices to show malice for purposes of overcoming a conditionalPage 5 of 5

privilege

. C

f. 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 Re habilitation Act claim. As discussed above, the jury expressly found that evidence w as 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.