                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARIA THERESE RICKS, Individually               No.    17-17038
and as Guardian Ad Litem for her minor
son, M.R.,                                      D.C. No. 1:16-cv-00044-HG

                Plaintiff-Appellant,
                                                MEMORANDUM*
 v.

STATE OF HAWAII DEPARTMENT OF
EDUCATION and KATHRYN
MATAYOSHI, in her official capacity as
Superintendent of the State of Hawaii
Department Of Education,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Hawaii
                   Helen W. Gillmor, District Judge, Presiding

                          Submitted February 11, 2019**
                               Honolulu, Hawaii

Before:      TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

      Maria Ricks, mother of student M.R., appeals the district court’s judgment in


      *
             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).
favor of the defendants after a four-day jury trial. She sued the State of Hawaii

Department of Education (“DOE”) and various officials including her son’s

preschool teacher under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,

and Hawaii state law. Ms. Ricks challenged the decision to occasionally seat M.R.

in a specialized, belted chair (“Rifton chair”) in the classroom. Ms. Ricks also

appeals the district court’s order on partial summary judgment and challenges

certain of the district court’s rulings on evidence and the jury instructions. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court did not err in denying Ms. Ricks partial summary

judgment on her Section 504 claim. The undisputed fact that use of the Rifton

chair was not documented in M.R.’s Individualized Education Program (“IEP”) or

Behavioral Plan, standing alone, is insufficient to render the DOE liable as a matter

of law under Section 504 for violating 34 C.F.R. § 104.33(b). See Mark H. v.

Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008). Implementing an IEP developed in

accordance with the Individuals with Disabilities Education Act, 20 U.S.C.

§§ 1400-1491 (“IDEA”), is only one means of ensuring compliance with 34 C.F.R.

§ 104.33(b)(1)(i)’s requirement that educational aids and services are “designed to

meet individual educational needs.” See 34 C.F.R. § 104.33(b)(2). Therefore, it

does not follow that the use of a Rifton chair, above and beyond the aids and

services listed in the IEP, necessarily violates Section 504’s regulations requiring


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provision of a free and appropriate public education (“FAPE”). Disputed issues of

material fact regarding use of the chair properly precluded summary judgment in

favor of Ms. Ricks and required the trial. See A.G. v. Paradise Valley Unified Sch.

Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016).

      The district court also did not err in dismissing Ms. Ricks’ state law assault

and battery and negligent infliction of emotional distress claims at the summary

judgment stage. Under Hawaii law, state employees acting in the performance of

their duties enjoy a “qualified or conditional privilege.” Towse v. State, 647 P.2d

696, 702 (Haw. 1982). The privilege protects them from individual liability for

tortious acts unless the injured party demonstrates by clear and convincing proof

that the employee was motivated by malice and not by an otherwise proper

purpose. See id.; see also Medeiros v. Kondo, 522 P.2d 1269, 1272 (Haw. 1974).

Viewed in the light most favorable to her, see A.G. v. Paradise Valley, 815 F.3d at

1202, the evidence Ms. Ricks offered was insufficient as a matter of law to

demonstrate the level of malice required to overcome the qualified privilege

defense.

      We conclude the district court did not err in formulating the final

instructions to the jury. The court drew a careful distinction between a claim for

denial of a FAPE under the IDEA—which could not be adjudicated in this case

because it was unexhausted, see Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 754–


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55 (2017)—and a claim of discrimination based on the denial of meaningful access

to public education under Section 504. The district court properly instructed the

jury to consider M.R.’s IEPs and the evidence regarding the IDEA only as relevant

to the question of intent under Section 504. See Mark H., 513 F.3d at 938

(plaintiffs must show a mens rea of intentional discrimination to prevail on a claim

for monetary damages under Section 504). Considering this limitation, there was

no abuse of discretion in excluding the portion of M.R.’s expert testimony

regarding whether use of a Rifton chair was required to be included in the IEP. See

Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1057 (9th Cir.

2008) (the district court’s decision to exclude expert testimony is reviewed for an

abuse of discretion).

      AFFIRMED.




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