Case 1:16-cv-00044-HG-KSC Document 9 Filed 02/22/16 Page 1 of 10

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ERIC A. SEITZ
ATTORNEY AT LAW
A LAW CORPORATION
ERIC A. SEITZ
1412
SARAH R. DEVINE
9673
820 Mililani Street, Suite 714
Honolulu, Hawaii 96813
Telephone: (808) 533-7434
Facsimile: (808) 545-3608
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARIA THERESE RICKS,
Individually and as Guardian
Ad Litem for her minor son,
M. R.,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
KATHRYN MATAYOSHI, in her )
official capacity as Superintendent
)
of the State of Hawaii Department )
of Education; JOY YOSHIMURA; )
JEFFREY SHITAOKA; MARIE
)
IKEDA; JODY YAMAUCHI-OKU; )
JENNY ZABOORI; JOANNE
)
ALLAGONEZ; KASEY ARITA;
)
And JOHN DOES 1-10,
)
)
Defendants.
)
)

CIVIL NO. 16-00044 HG-KSC
FIRST AMENDED COMPLAINT;
DEMAND FOR JURY TRIAL

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COMPLAINT
Plaintiff MARIA THERESE RICKS, by and through her undersigned
attorneys, alleges as follows:
JURISDICTION AND VENUE
This Court has jurisdiction over the subject matter and the parties pursuant
to the Rehabilitation Act of 1973, Section 504 ("Rehabilitation Act") for
deprivation of civil rights pursuant to 42 U.S.C. §§ 1983 et seq, and under 28
U.S.C. §§ 1331 and 1343, inter alia, which afford original jurisdiction for actions
arising from federal questions under the Constitution or laws of the United States.
The Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over claims
arising under state law. Venue is proper in the District of Hawaii pursuant to
U.S.C. § 1391(b) because the events giving rise to Plaintiff's claims occurred in
this District.
PARTIES
(1)

Plaintiff MARIA THERESE RICKS (“Plaintiff”) is and has been a

resident of the County of Honolulu, State of Hawaii at all times pertinent hereto
and is the natural mother and custodial parent of M. R., a minor born in 2009.
(2)

Defendant KATHERYN MATAYOSHI is and has been the

superintendent of the State of Hawaii Department of Education ("DoE") and is and

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has been a citizen of the State of Hawaii at all times pertinent hereto. Defendant
Matayoshi is sued herein only in her official capacity.
(3)

Defendant JOY YOSHIMURA ("Defendant Yoshimura") was at all

pertinent times employed by the DoE as a special education teacher at Koko Head
Elementary School and a citizen of the State of Hawaii. Defendant Yoshimura is
sued herein in both her official and her individual capacities.
(4)

Defendant JEFFREY SHITAOKA ("Defendant Shitaoka") was at all

times pertinent hereto principal of Koko Head Elementary School, a public school
operated by the DoE, and a citizen of the State of Hawaii. Defendant Shitaoka is
sued herein in both his official and his individual capacities.
(5)

Defendant JODY YAMAUCHI-OKU ("Defendant Yamauchi-Oku")

was at all times pertinent hereto employed by the DoE as the student services
coordinator at Koko Head Elementary School and a citizen of the State of Hawaii.
Defendant Yamauchi-Oku is sued herein in both her official and her individual
capacities.
(6)

Defendant MARIE IKEDA (“Defendant Ikeda”) was at all times

pertinent hereto employed by the DoE as the District Resource Teacher at Koko
Head Elementary School and a citizen of the State of Hawaii. Defendant Ikeda is
sued herein in both her official and individual capacities.

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(7)

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Defendant JENNY ZABOORI (“Defendant Zaboori”) was at all times

pertinent hereto employed by the DoE as the Occupational Therapist at Koko Head
Elementary School and a citizen of the State of Hawaii. Defendant Zaboori is sued
herein in both her official and her individual capacities.
(8)

Defendant JOANNE ALLAGONEZ (“Defendant Allagonez”) was at

all times pertinent hereto employed by the DoE as the Speech and Language
Pathologist at Koko Head Elementary School and a citizen of the State of Hawaii.
Defendant Allagonez is sued herein in both her official and her individual
capacities.
(9)

Defendant KASEY ARITA (“Defendant Arita”) was at all times

pertinent hereto employed by the DoE as a School Psychologist at Koko Head
Elementary School and a citizen of the State of Hawaii. Defendant Arita is sued
herein in both her official and her individual capacities.
(10) Defendants JOHN DOES 1-10 (hereinafter Doe Defendants) are sued
herein under fictitious names for the reason that their true names and capacities are
presently unknown to Plaintiff except that they are connected in some manner with
the named Defendants as agents, servants, employees, representatives, contractors,
assignors, assignees, and licensees and/or in some manner presently unknown to
Plaintiff were engaged in the activities alleged herein and/or proximately caused
the injuries or damages of which Plaintiff complains herein. Plaintiff will amend
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her complaint or identify the Doe Defendants at such time as their true names and
capacities become known. The Doe Defendants are sued herein both in their
official and in their individual capacities.
FACTUAL ALLEGATIONS
(11) Plaintiff’s son M. R. was born in 2009 in Honolulu, Hawaii.
(12) In 2012, Plaintiff noticed M. R. was having difficulties with
communication, social skills and changes in his environment. At Plaintiff’s request
M. R. was seen by Dr. Ingrid N. Leckliter at the University of California at Davis
MIND Institute and was diagnosed with Autism Spectrum Disorder (ASD).
(13) M. R. attended New Adventures Preschool from the ages of two to
three years old, and attended an Applied Behavioral Analysis (ABA) program from
October 2012 to July 2013 in California.
(14) M. R. began school at Koko Head Elementary School in August of
2013 when his family relocated to Hawaii.
(15) During the spring of the 2013-2014 school year Plaintiff learned, for
the first time, that teachers and other staff at Koko Head Elementary School
repeatedly and nearly daily belted M. R. into a Rifton chair as a means of
restraining M. R.
(16) This particular form of discipline and/or restraint was not consistent
with M. R.’s IEP and had never been agreed to and/or approved by Plaintiff.
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(17) Plaintiff is informed and believes that all named Defendants knew
and/or were aware of the means by which M. R. was restrained at Koko Head
Elementary School and failed and/or refused to intervene or to inform Plaintiff.
(18) Immediately upon learning of the manner in which her son was being
restrained Plaintiff informed Defendants that she did not want M. R. restrained in a
chair.
(19) Based on Plaintiff’s knowledge and belief, Defendants continued to
restrain M. R. in the chair in deliberate violation of Plaintiff’s express instructions
and M. R.’s IEP.
(20) At M. R.’s preschool graduation in June of 2014 he was restrained by
a belt in the Rifton chair during the ceremony in the presence of Plaintiff and other
attendees.
(21) At M. R.’s IEP meeting in November of 2015, Plaintiff again
expressed her concerns regarding the Defendants’ improper restraint of M. R. in a
Rifton chair and again asked that they not, under any circumstances, physically
restrain him in a chair or in any other manner.
(22) Based on Plaintiff’s knowledge and belief, Defendants continued to
restrain M. R. in the chair in deliberate violation of Plaintiff’s instructions and M.
R.’s IEP after the November 2015 meeting.

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(23) M. R.’s IEP contains no information regarding behavior problems that
would warrant the use of physical restraint, nor does he have a Behavior Support
Plan.
(24) Plaintiff is informed and believes that if her son M. R. had behavioral
problems that warranted physical restraint those should be addressed in a Behavior
Support Plan as well as his IEP. Since no such concerns are addressed in his IEP,
and he has NO Behavior Support Plan, Plaintiff is informed and believes that the
use of the chair to restrain M. R. was impermissible.
(25) Plaintiff expressed her concerns regarding the repeated and continued
use of the Rifton chair in letters and emails sent to Defendant Shitaoka on January
20, 2015 and January 27, 2015 respectively.
(26)

In response to those emails and letters, Defendant Shitaoka mailed a

letter to Plaintiff dated February 6, 2015 that stated that the use of the Rifton chair
“was not related to any specific goal or objectives”.
(27) As a direct and proximate result of the foregoing, Plaintiff removed
M. R. from Koko Head Elementary School and placed him in an autism school at
her own expense.
(28) As a direct and proximate result of the foregoing M. R. experienced
physical pain and enormous emotional distress in amounts to be proven at trial.
(29) Plaintiff has exhausted all of her administrative remedies.
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(30) As a direct and proximate result of the foregoing M. R. was subjected
to a cruel and unusual punishment and denied his rights to due process of law in
accordance with the Rehabilitation Act, inter alia.
FIRST CAUSE OF ACTION
(31) Plaintiff hereby incorporates all of the allegations set forth in the
paragraphs above.
(32) Acting in their official capacities, all of the named Defendants
violated § 504 of the Rehabilitation Act by denying M. R. adequate, reasonable,
and essential programs and services 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. 34 C.F.R. § 104.33(b)(1)(i).
(33) This denial of programs and services constituted a deliberate
indifference to M. R.’s rights guaranteed by the Rehabilitation Act inter alia, and
resulted in and proximately caused the injuries and damages set forth herein.
SECOND CAUSE OF ACTION
(34) Plaintiff hereby incorporates all of the allegations set forth in
paragraphs 1 through 30 and 32 above.

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(35) Acting in their individual capacities and under color of law
Defendants violated the Rehabilitation Act by denying M. R. adequate, reasonable,
and essential programs and services.
(36) This denial of programs and services constituted a deliberate
indifference to M. R.’s rights guaranteed by the Rehabilitation Act, inter alia, and
resulted in and proximately caused the injuries and damages set forth herein.
THIRD CAUSE OF ACTION
(37) Plaintiff hereby incorporates all of the allegations set forth in
paragraphs 1 through 29 above.
(38) The acts of Defendant JOY YOSHIMURA, and certain of the Doe
Defendants, acting in their individual capacities, constitute an assault and battery.
(39) The acts complained of herein were intentional and/or reckless and
outrageous and caused M. R. to suffer physical injuries and severe emotional
distress in amounts to be proven at trial.
FOURTH CAUSE OF ACTION
(40) Plaintiff hereby incorporates all of the allegations set forth in
paragraphs 1 through 29 above.
(41) All of the Defendants acted herein negligently hereby causing M. R.
and his mother to suffer immense mental distress in amounts to be proven at trial.

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WHEREFORE, Plaintiff prays for relief as follows:
1.

For entry of a judgment declaring that the actions of Defendants

violated the Rehabilitation Act, inter alia;
2.

For general damages in amounts to be proven at trial;

3.

For special damages, including consequential damages in amounts to

be proven at trial;
4.

For punitive damages in an amount sufficient to deter similar behavior

in the future;
5.

For an injunction preventing all employees of the DOE from using

physical means to restrain children in the Special Education program without first
having express written and informed consent from their parents and or legal
guardians;
6.

For reimbursement of Plaintiff's costs of suit herein including

reasonable provision for her attorneys’ fees; and
7.

For such further and additional relief as this Court deems appropriate

and just.
DATED:

Honolulu, Hawaii, February 22, 2016.
/s/ ERIC A. SEITZ
ERIC A. SEITZ
SARAH R. DEVINE
Attorneys for Plaintiff
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

MARIA THERESE RICKS,
Individually and as Guardian
Ad Litem for her minor son,
M. R.,
Plaintiff,
vs.
KATHRYN MATAYOSHI, et al,
Defendants.

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CIVIL NO. 16-00044 HG-KSC
DEMAND FOR JURY TRIAL

DEMAND FOR JURY TRIAL
Plaintiff

MARIA THERESE RICKS, by and through her undersigned

attorneys, hereby demands a jury trial as to all issues so triable herein.
DATED:

Honolulu, Hawaii, February 22, 2016.

/s/ ERIC A. SEITZ
ERIC A. SEITZ
SARAH R. DEVINE
Attorneys for Plaintiff