                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        OCT 28 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

THERESA KIMES, Individually and as              No.    18-16249
Guardian Ad Litem for her minor daughter
R.K.,                                           D.C. No.
                                                1:16-cv-00264-JMS-RLP
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

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.

                   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).
                                                                           Page 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 deliberate indifference, Kimes had to show that DOE

(1) knew that its actions would likely result in a violation of R.K.’s right 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. The jury’s finding is supported by

substantial evidence.

      Kimes alleged that school officials denied R.K. a reasonable accommodation

in four different respects. First, she argued 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 previous 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, the
                                                                             Page 3 of 5

jury could reasonably have concluded that DOE thought its BSP would adequately

protect R.K.’s rights.

          Second, Kimes alleged that DOE denied R.K. a reasonable accommodation

when school officials forcibly restrained her on March 10, 2016. Several 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 education, not hinder it.

          Third, Kimes alleged 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,

officials 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). The jury heard that the disciplinary actions taken against R.K.

amounted to no more 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 these suspensions did not violate R.K.’s federally protected

rights.

          Fourth, Kimes challenged DOE’s decision to prohibit R.K.’s nurse from

accompanying her onto campus on March 11, 2016. DOE employees testified that
                                                                          Page 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 she

receive necessary support from these other nurses.

      Ample evidence supports the jury’s determination that DOE was not

deliberately indifferent to R.K.’s needs. The district court therefore correctly

denied Kimes’ motion for judgment notwithstanding the 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

Springs, 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. 1982). We need not decide whether Kimes is correct that deliberate

indifference suffices to show malice for purposes of overcoming a conditional
                                                                            Page 5 of 5

privilege. Cf. 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 Rehabilitation

Act claim. As discussed above, the jury expressly found that evidence was

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.
