Fullum Et Al v. Kishimoto Et Al

Case 1:18-cv-00332-KJM-NONE Document 1 Filed 08/30/18 Page 1 of 32 PageID #: 1
ERIC A. SEITZ
ATTORNEY AT LAW
A LAW CORPORATION
ERIC A. SEITZ 1412

GINA SZETO-WONG 10515
JONATHAN M.F. LOO 10874
820 Mililani Street, Suite 714
Honolulu, Hawaiì 96813
Telephone: (808) 533-7434
Facsimile: (808) 545-3608
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAIÌ
MARCHET DENISE FULLUM, ) Civil No. 18-00332

on behalf of minor child J.F.; )
ANNA GROVE, on behalf of ) CLASS ACTION COMPLAINT
minor child T.G.; GERALD M ) FOR DAMAGES, INJUNCTIVE,
and SANDEE NIBLOCK, on ) AND DECLARATORY RELIEF;
behalf of minor child K.N., ) EXHIBIT A; DEMAND FOR
individually and on behalf of all ) JURY TRIAL
others similarly situated, )
)
Plaintiffs, )
)
vs. )
)
DR. CHRISTINA KISHIMOTO, )
Superintendent of the State of )
Hawaiì Department of Education; )
ELYNNE E. CHUNG, Principal )
of Mililani Middle School; )
DR. BERNADETTE TYRELL, )
Principal of Castle High School; )
BEVERLY STANICH, Principal )
of Wailuku Elementary School; )

ROBERT DAVIS, Central Oahu )
Complex Area Superintendent; )
and DOE DEFENDANTS 1-20, )
)
Defendants. )
______________________________ )
COMPLAINT FOR DAMAGES
Plaintiffs MARCHET DENISE FULLUM, on behalf of minor child
J.F.; ANNA GROVE, on behalf of minor child T.G.; GERALD M. and SANDEE
J.C. NIBLOCK, on behalf of minor child K.N. (collectively the “Plaintiffs”), in
their individual and representative capacities and on behalf of the class of all other
persons similarly situated, by and through their undersigned attorneys, allege as
follows:
INTRODUCTION
1. This is a civil action seeking damages, injunctive, and declaratory
relief from the Defendants: DR. CHRISTINA KISHIMOTO, individually and in
her official capacity as Superintendent of the State of Hawaiì Department of
Education (“Department of Education” or the “Department”); ELYNNE E.
CHUNG, individually and in her official capacity as Principal of Mililani Middle
School; DR. BERNADETTE TYRELL, individually and in her official capacity as
President of Castle High School; BEVERLY STANICH, individually and in her
official capacity as Principal of Wailuku Elementary School; ROBERT DAVIS,
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individually and in his official capacity as Central Oahu Complex Area
Superintendent; and DOE DEFENDANTS 1-20, whose true names and identities
are not yet known to the Plaintiffs (collectively the “Defendants”). Plaintiffs also
seek appointment of a Special Master to manage the Department of Education.
2. School safety is at the forefront of national concern. In the current
climate of school shootings and rising mental health issues among teens the
schools more than any other institution must strive to remain a place where
children can safely interact with their peers and parents can confidently rely on the
school staff and administration to maintain that environment.
3. This action arises from the Defendants’ deliberate and ongoing failure
to satisfy their obligation to provide for the basic safety and well-being of students
throughout the state and from the Department’s grossly inadequate policies,
procedures, and practices for responding to and preventing student harassment and
bullying.
4. Hawaiì is not immune to national trends. Nearly 40% of Hawaiì’s
students report feeling unsafe at school because of bullying or harassment while
over 60% agree that bullying is a problem. Those numbers are not surprising given
that approximately one third of all Hawaiì students have themselves been victims
of bullying or harassment while at school. The negative impacts are well
documented, ranging from long-term mental health issues and relationship
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struggles to substance use and conduct disorders, and even mere observation of the
behavior has lasting harmful effects.
5. As the agency overseeing Hawaiì’s public schools, the Department of
Education is responsible for creating the policies, procedures, and practices to be
implemented at every school and for providing the necessary education, training,
and supervision to its staff members. At a minimum, the Department failed to
meet baseline federal standards as evidenced by the Office for Civil Rights
(“OCR”) Compliance Review findings in January of 2018 (hereinafter “OCR
Compliance Review”), attached hereto and incorporated herein as Exhibit A.
Those findings concluded the Hawaiì Department of Education is not in
compliance with numerous federal regulations governing the response to
harassment based on race, color, national origin, sex, or disability. On a deeper
level, the Department failed to adhere to even the basic expectations of parents and
students attending public schools by neglecting its responsibility as policymaker,
and by the blatant and repeated failure to protect victims of bullying and
harassment.
6. The continuing practice of the Defendants and their deliberate
indifference towards victims of bullying and harassment harms all of Hawaiì’s
students by systemically supporting the behavior, and needlessly puts the entire
student population at risk of significant and irreparable damage.
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JURISDICTION and VENUE
7. This Court has original jurisdiction to hear this matter pursuant to 28
U.S.C. Sections 1331 and 1343, inter alia. Any and all state law claims contained
herein are part of the same case or controversy giving rise to the federal law claims
and therefore fall within the Court’s supplemental jurisdiction pursuant to 28
U.S.C. Section 1367.
8. Venue is proper in the United States District Court for the District of
Hawaiì pursuant to 28 U.S.C. Section 1391 as all Defendants to the litigation
reside in the state of Hawaiì, and all actions and/or omissions giving rise to the
claim occurred and continue to occur in the state of Hawaiì.
PARTIES
9. Plaintiff MARCHET DENISE FULLUM is and has been a resident of
the County of Honolulu, State of Hawaiì, at all times pertinent hereto.
10. Plaintiff ANNA GROVE is and has been a resident of the County of
Maui, State of Hawaiì, at all times pertinent hereto.
11. Plaintiffs GERALD M. and SANDEE J.C. NIBLOCK are and have
been residents of the County of Honolulu, State of Hawaiì, at all times pertinent
hereto.
12. Defendant DR. CHRISTINA KISHIMOTO is and has been a resident
of the State of Hawaiì at all times pertinent hereto. Defendant KISHIMOTO is
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sued herein individually and in her official capacity as Superintendent of the State
of Hawaiì Department of Education.
13. Defendant ELYNNE E. CHUNG is and has been a resident of the
State of Hawaiì at all times pertinent hereto. Defendant Chung is sued herein
individually and in her official capacity as Principal of Mililani Middle School.
14. Defendant DR. BERNADETTE TYRELL is and has been a resident
of the State of Hawaiì at all times pertinent hereto. Defendant TYRELL is sued
herein individually and in her official capacity as Principal of Castle High School.
15. Defendant BEVERLY STANICH is and has been a resident of the
State of Hawaiì at all times pertinent hereto. Defendant STANICH is sued herein
individually and in her official capacity as President of Wailuku Elementary
School.
16. Defendant ROBERT DAVIS is and has been a resident of the State of
Hawaiì at all times pertinent hereto. Defendant DAVIS is sued herein
individually and in his official capacity as Complex Area Superintendent of the
Oahu Central District, Leilehua-Mililani-Waialua.
17. DOE DEFENDANTS 1-20 (hereinafter “Doe Defendants”) are sued
under fictitious names for the reason that their true names and capacities remain at
present unknown to the Plaintiffs except that they are connected in some manner
with the named Defendants as agents, servants, employees, representatives,
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contractors, assignees, and licensees and/or in some manner presently unknown to
the Plaintiffs were engaged in the activities alleged herein and/or proximately
caused the injuries or damages complained of by the Plaintiffs. The identities of
the DOE DEFENDANTS will be included in Plaintiffs’ complaint at such times as
their true names and capacities become known. The DOE DEFENDANTS are
sued both in their individual and in their official capacities.
CLASS ALLEGATIONS
18. Plaintiffs bring this action in their individual capacities and in their
representative capacities on behalf of all others similarly situated pursuant to Fed.
R. Civ. P. Rule 23. This action satisfies all requirements of Rule 23: numerosity,
commonality, typicality, fair and adequate representation, and predominance and
superiority.
19. The proposed class members consist of:
All students who are attending public school in

Hawaiì, or who attended public school in Hawaiì
within the applicable statute of limitations period
preceding the filing of this action, and who have been
personally bullied or harassed at school, on the way to
or from school, or at a school-sponsored off-campus
function (the “Class”).
20. The proposed definition of the Class may be amended by the Plaintiffs
prior to certification by the Court if such amendment is deemed necessary or
appropriate, including the addition or removal of any subclasses.
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A. Class Action Requirements
21. The proposed members of the Plaintiffs’ Class are so numerous that
joinder of all the members is impracticable. The Class consists of thousands of
students attending public school in Hawaiì who have been personally subjected to
bullying and harassment. The OCR Compliance Review findings indicate more
than 20,000 students during the 2014-2015 school year alone fit within the
definition of the Class. The Department of Education has readily obtainable
records detailing complaints of harassment or bullying and the resulting
disciplinary action, thus making practical the identification and notification of
potential class members.
22. There are significant questions of law and fact in this case that are
common to the Class as a whole, and central to resolution of the core issues in this
matter. The nature and scope of the Class claims expose the gravity of the
Defendants’ reckless disregard for the safety and well-being of students and the
full extent of the damage. Moreover, a class action proceeding will best equip the
Court with the information necessary to resolve the fundamental problems within
the Department. Class litigation is the superior method to manage such
comprehensive claims and will afford a large number of similarly harmed persons
the ability to pursue this action in circumstances where individual claims are
minimal, thus promoting economic efficiency and promoting a fair and judicially
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efficient resolution of the issues. Without such litigation Defendants may stay the
current course of deliberate inaction and neglect of responsibility, bringing about
continued and intolerable harm to students.
23. Some questions of law and fact that are common to the Class include
whether Defendants:
a. Were negligent in failing to enact and/or enforce acceptable

policies, procedures, and regulations for reporting and
preventing student harassment and bullying;
b. Failed to report or investigate student and parent complaints of

harassment and bullying, or otherwise take appropriate remedial
action to prevent and/or address harassment and bullying;
c. Failed to enact and/or enforce acceptable policies, procedures,

and regulations to ensure uniformity of punishment for
offending students;
d. Failed to enact and/or enforce acceptable policies, procedures,

and regulations detailing the investigative steps required of
school officials in reaching a conclusion involving harassment
and bullying;
e. Failed to exercise reasonable care or otherwise take

reasonable precautions to prevent retaliation against
victims of harassment and bullying;
f. Failed to provide any policies, procedures, or regulations to

protect victims during the pendency of an investigation of
harassment or bullying;
g. Minimized and misrepresented student conduct involving

incidents of harassment and bullying;
h. Neglected to inform victims and their families of the outcome

following complaints of harassment or bullying, or to enact
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and/or enforce policies, procedures, or regulations providing for

the same;
i. Failed to afford victims of harassment and bullying adequate

due process by allowing only the accused to present evidence
and testimony on appeal from a disciplinary decision.
j. Violated federal requirements under Title VI of the Civil Rights

Act of 1964 (hereinafter “Title VI”), Title IX of the Education
Amendments of 1972 (hereinafter “Title IX”), Section 504 of
the Rehabilitation Act of 1973 (hereinafter “Section 504”),
and Title II of the Americans With Disabilities Act of 1990
(hereinafter “Title II”), inter alia, by failing to adopt an
effective grievance procedure, failing to propound
and disseminate anti- harassment and non-discrimination
information, and failing to designate a coordinator and notify
students and employees of the coordinator’s name and contact
information;
k. Misused federal funds which were accepted and expended upon

the premise that the Department was in compliance with all
applicable federal laws and regulations; and
l. Failed to provide employees with the proper education,

training, and oversight to appropriately respond to complaints
of bullying and harassment.
24. The questions of law and fact are common questions which are
capable of class-wide resolution. The means by which individual Class members
have been victimized are varied, but central to every incident is the Defendants’
failure to provide for the safety and well-being of students. Judicial intervention is
necessary to spur rehabilitation of the grievance process and the Department’s
enactment and enforcement of effective policies and procedures, thus driving the
resolution of this litigation.

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25. The claims of the representative Plaintiffs are typical of the claims of
the Class. The representatives attended public schools in Hawaiì and were
personally subjected to bullying and harassment at school, on the way to or from
school, or at a school-sponsored off-campus function. The claims of the
representatives are closely related to those of the absent Class members in that
Defendants failed to provide for the safety and well-being of all students who are
or were victims of harassment or bullying. Because the claims of the
representatives are typical of the Class as a whole, the absent Class members will
be protected in a manner that is both economic and efficient.
26. The representative parties will fairly and adequately protect the
interests of the Class. Plaintiffs have suffered adverse consequences as a direct
result of the Defendants’ inaction when faced with legitimate and repeated
complaints of harassment and bullying, and are committed to vigorously pursuing
all available legal remedies. All Class representatives have a strong desire to see
that corrective action is taken in an effort to prevent future harm to their children,
and the children of others. Similarly, Plaintiffs’ counsel has an extensive history as
one of Hawaiì’s leading civil rights litigation firms. Counsel has always been
firmly resolved to protecting the rights and interests of clients, and will zealously
pursue this matter on behalf of the Class. Neither counsel nor the representative
Plaintiffs have any conflicts of interest with other class members that would
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prevent or interfere in any way with counsel’s representation or the claims asserted
and relief sought herein.
27. The Defendants, having been presented with innumerable
opportunities to protect the student population and prevent systemic bullying and
harassment, have refused to act on behalf of the named Class. Such inaction
applies generally to the entire Class, and injunctive relief and/or declaratory relief
are the appropriate means to protect the Class as a whole.
28. The questions of law and fact regarding the Defendants’ repeated and
deliberate indifference towards the safety and well-being of students are central to
the Plaintiffs’ Complaint, and are the predominant questions driving this litigation.
The differing factual claims of individual Class members and the variety of
damages suffered are not a roadblock to Class certification when the claims central
to all Class members predominate, and a Class-wide judicial solution is not only
practical, but remains the superior method for a fair and efficient resolution of the
Plaintiffs’ claims. The primary interest of Class members is to see change in the
Defendants’ policies, procedures, and practices, and there is little interest to
individually control separate actions. Moreover, maintaining class status is
preferable for achieving the desired results, and will not present any exceptional
difficulties.
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COMMON FACTUAL ALLEGATIONS
29. The State of Hawaiì Department of Education is responsible for
oversight of Hawaiì’s 256 public schools. According to its website, the
Department’s mission is to “serve our community by developing the academic
achievement, character and social-emotional well-being of our students to the
fullest potential.”
30. Within the Department, the Civil Rights Compliance Office (the
“CRCO”) is responsible for overall compliance with State and Federal rules and
policies.
31. As part of its responsibilities, the Department has an obligation to
maintain a safe environment at all 256 public schools within its control, during
transportation to and from school, and during any school-sponsored off-campus
functions.
32. A necessary component to student safety is the development,
implementation, and enforcement of effective policies, procedures, and regulations
to respond to complaints and incidents of harassment and bullying.
33. The Department is further responsible for providing appropriate
training, education, and oversight of its employees and the conduct of its
employees when they are acting within the scope of their employment.
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34. The hierarchy and dissemination of policies, procedures, and practices
within the Department begins with the Superintendent. Management of each
Department Complex is then overseen by the Complex Area Superintendent and
school Principals are responsible for ensuring that individual schools are in
compliance with the policies, procedures, and practices enacted by the Department.
35. As of the filing of this Complaint the Department continues to operate
under the same set of policies, procedures, and regulations that have been in place
and that have been severely criticized by the OCR after a years-long investigation.
36. Based upon the OCR Compliance Review, and upon information and
belief, the only policies, procedures, and regulations utilized by the Department for
investigating and responding to harassment and bullying are those laid out in
Chapter 19 of Title 8 of the Hawaiì Administrative Rules (hereinafter “Chapter
19”).
37. Chapter 19 is the Department-wide source used primarily for
responding to disciplinary problems, entitled “Student Misconduct, Discipline,
School Searches and Seizures, Reporting Offenses, Police Interviews and Arrests,
and Restitution for Vandalism.”
38. Chapter 19 divides prohibited student conduct into Class A, B, C, and
D, with Class A being the most serious.
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39. Harassment and bullying are specific offenses listed in Class B and
sexual harassment and fighting are specific offenses listed in Class A.
40. Chapter 19 provides that an investigation must take place: (1)
immediately following a crisis removal of a student; (2) whenever a principal or
designee has reason to believe a student engaged in conduct warranting the
imposition of suspension; and (3) as a matter of course following the report of any
teacher, official, or employee of the Department who is witness to a Class A or
Class B offense, or has reasonable cause to believe a Class A or Class B offense
has been or will be committed.
41. Plaintiffs are informed and believe, and thereupon allege, that
Defendants’ policies, procedures and practices for responding to and preventing
incidents of harassment and bullying are grossly inadequate and/or not enforced
and fall far below federal statutory requirements and the basic obligation of the
Defendants to provide for the safety and well-being of students.
42. The OCR Compliance Review concluded that Chapter 19, the sole
grievance procedure by which the Department responds to complaints of
harassment and bullying, fails to afford victims their basic due process rights by
preventing alleged student victims from the opportunity to participate or present
evidence and testimony of their own during an appeal, but allowing for the
participation and evidence of the accused.
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43. The OCR Compliance Review concluded that Chapter 19 fails
entirely to “provide a complaint process for student victims and instead only
provides a disciplinary process for students who commit harassment.”
44. Under Chapter 19 there is no requirement that victims of harassment
and bullying be notified of the outcome or any decisions by the complex area
superintendent concerning an appeal.
45. The Department of Education provides no indication of how
investigations are to be conducted or the procedures for safeguarding the
investigation and maintaining its impartiality and adequacy, thus failing to provide
appropriate policies, procedures, and regulations to guarantee that sufficient and
reliable investigations are conducted following complaints or incidents of
harassment or bullying.
46. The Hawaiì Department of Education receives substantial funding
from both state and federal sources to fund its operations.
47. Nearly fifteen percent of the Department’s fiscal budget is comprised
of federal funds received primarily from the United States Department of
Education.
48. In fiscal years 2015 through 2017 the Department received 774
million dollars in federal funding, averaging nearly a quarter of a billion dollars
annually.
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49. As a public entity and recipient of federal financial assistance from
the United States Department of Education the Department must comply with all
the laws of Title VI, Title IX, Section 504, and Title II, inter alia.
50. Based on the investigation and conclusions of the OCR Compliance
Review of the Department’s policies, procedures, and processes, the Hawaiì
Department of Education is not in compliance with numerous federal laws and
regulations of Title VI, Title IX, Section 504, and Title II.
51. Under federal law, the Department’s receipt of federal financial
assistance was predicated on the expectation that the Department was in
compliance with all federal rules and regulations.
52. Plaintiffs are informed and believe, and thereupon allege, that the
receipt and expenditure of federal funds by the Department while knowingly and
deliberately failing to comply with federal requirements constitutes a misuse of
federal funding which was designated for use by public entities that adequately
prevent and protect against discrimination and harassment.
Defendants are systemically supporting harassment and bullying in schools by
failing to implement and/or enforce appropriate policies, procedures, and
regulations and failing to provide adequate, reliable, and impartial investigations.
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Defendants willfully, deliberately, and/or recklessly disregarded the safety and
well-being of students within their custody and care.
55. As a direct and proximate result of Defendants’ actions and/or
inactions the Representative Plaintiffs and the Class members have suffered and
will continue to suffer from various and lasting psychological and physical harm,
monetary damages, and other damages to be proven at trial.
PLAINTIFFS WERE HARMED BY DEFENDANTS
56. Plaintiffs hereby restate all of the allegations set forth above in
paragraphs 1 through 57 and incorporate those allegations by reference.
57. The Defendants’ systemic failure to respond appropriately to incidents
and complaints of harassment and bullying described herein harmed the
representative Plaintiffs and members of the Class. The following allegations of
individualized harm suffered by the representative Plaintiffs are illustrative of the
extent and severity of damages sustained by members of the Class resulting from
the Defendants’ conduct.
A. Marchet Denise Fullum, on behalf of her minor child J.F.
58. During the 2017-2018 school year J.F. attended school at Mililani
Middle School, a public school in Hawaiì within the oversight of the Department
of Education.
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59. Over the course of the school year J.F. was repeatedly subjected to
incidents of bullying and racial harassment from other students, including repeated
incidents where J.F. was called a “nigger” and one incident where she suffered
severe bruising and trauma as a result of being physically assaulted by multiple
students, which was recorded on video.
60. Plaintiff Fullum and J.F. reported the incidents to school officials,
including the video of the physical assault.
61. In accordance with the Department of Education’s policies,
procedures, and practices, Chapter 19 was the only instrument utilized by school
officials in response to the allegation of racially-discriminatory harassment and
bullying.
62. Mililani Middle School and its staff did not effectively address the
race-based harassment that J.F. was victim to through proper investigation,
mitigation, and reporting, and failed to take reasonable measures to prevent further
occurrences of harassment and bullying.
63. As a consequence of the school’s inaction, and the lack of policies,
procedures, regulations, and training from the Department of Education to
adequately respond to and prevent race-based harassment and bullying, J.F.
continued to be victimized by those same individuals with little hope that school
officials would take any action to address the situation.
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64. J.M. became severely depressed and was diagnosed with post-
traumatic stress disorder, suffering lasting and irreparable effects that ultimately
contributed to her plea for help by lashing out in frustration at those harassing her,
and at the school officials failing to prevent the harassment.
65. In accordance with the Department’s policies, procedures, and
practices, no consideration was given to the fact that J.F. was a recurrent victim of
hateful and offensive race-based harassment and the school had failed to protect
her.
66. The school’s only response was to utilize the Chapter 19 procedures
to discipline J.F. with no corrective actions taken to address or otherwise prevent
the reoccurrence of race-based harassment and bullying.
67. J.F. is no longer safe at Mililani Middle School as a result of the
Defendants’ inability to protect her, and Plaintiff Fullum has incurred and will
continue to incur substantial costs associated with the relocation of J.F. to a private
institution.
B. Anna Grove, on behalf of her minor child T.G.
68. During the 2017-2018 school year T.G. attended Wailuku Elementary
School, a public school in Hawaiì within the oversight of the Department of
Education.
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69. Throughout the course of the school year T.G. was sexually harassed
and bullied by another student at her school.
70. Complaints of sexual harassment and bullying were reported to school
officials, including teachers, counselors, and the Vice Principal, on multiple
occasions and through various means.
71. The school failed to investigate or take any actions to address the
behavior or otherwise protect T.G. despite receiving complaints on multiple
occasions, and consequently T.G. was subjected to escalating harassment,
including threats to kill her and choke her in the bathroom.
72. In May of 2018 T.G. was again sexually harassed by the same student
and continued to receive repeated threats of being choked in the bathroom.
73. Suffering from extreme emotional distress as a result of the threats,
T.G. was afraid to use the bathroom at school.
74. On or about June 5, 2018, T.G. was rushed to the hospital with severe
abdominal pain, where it was discovered she had a bowel obstruction likely
resulting from stress and her unwillingness to use the bathroom at school due to the
threats.
75. Long after the fact, and only after receiving yet another complaint
detailing the May incident and resulting medical complications, the school filed a
report with the police.
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76. In order to finally “protect” T.G. at this late stage the Principal offered
summer counseling should T.G. desire, and asked that she check in with a
counselor on a daily basis as the solution to this problem.
C. Gerald M. and Sandee J.C. Niblock, on behalf of minor child K.N.
77. During the 2015-2016 school year K.N. attended Castle High School,
a public school in Hawaiì within the oversight of the Department of Education.
78. On August 30, 2016, K.N. became informed that another student had
threatened her and was going to physically assault her.
79. K.N. feared for her safety and sought assistance from school officials
to provide protection from the physical assault.
80. On the morning of August 30, 2016, K.N. visited the office of her
school counselor to report the student’s threat and that she feared for her safety,
and a second counselor also was notified via telephone about the threat.
81. The school officials knew or had reason to know that a Class A
offense would likely be committed and thus had an obligation to document the
incident in an official report and conduct an investigation, and to provide for the
safety and well-being of K.N. by acting reasonably to prevent the physical assault.
82. In accordance with the policies, procedures, and practices of the
Department of Education, no written documentation or report of the threatened
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assault was ever made, no investigation took place, and no other school officials
were notified of the threat.
83. In accordance with the policies, procedures, and practice of the
Department of Education, the school neglected to notify the parents of K.N. that
she had been threatened and was in fear for her safety, and neglected to provide
K.N. with any security or protection from bodily injury after learning of the threat.
84. Later that day K.N. was violently assaulted by the student who had
threatened her.
85. K.N. suffered from a concussion and multiple cuts and bruises after
she was repeatedly struck in the head while other students filmed the incident, later
posting the assault on social media.
86. K.N. also experienced severe psychological trauma as a consequence
of the violent assault, and incurred and continues to incur costs and expenses
associated with psychological care.
87. In accordance with the policies, procedures, and practices of the
Department, no actions were taken to address or otherwise change the school’s
response, and there was no corrective action for school officials involved or
education and training provided to prevent similar incidents from happening in the
future.
88. In the weeks after the incident when K.M. returned to the same
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counselor to whom she first reported the threat, the counselor inconceivably
suggested to K.N., a teenage girl, that she was to blame for the violent assault, and
offered guidance on correcting K.N.’s behavior.
89. K.N. continues to be harassed and bullied by students at Castle High
School, and the Defendants have failed to provide for her safety and well-being,
prompting intervention by K.N.’s parents.
90. Because K.N. is no longer safe at Castle High School as a result of the
Defendant’s inability to protect her, she has been removed from Castle High
School and Plaintiff’s Gerald M. and Sandee J.C. Niblock have incurred and will
continue to incur costs and difficulties associated with the relocation of K.N. to a
different institution.
COUNT ONE
(Negligence)
92. Defendants have an affirmative obligation to provide for the safety
and well-being of students while under their care at school, on the way to or from
school, and at school-sponsored off-campus functions.
93. At all times relevant hereto, the Defendants acted with willful and/or
deliberate disregard towards the safety and well-being of students by failing to
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enact and/or enforce appropriate policies, procedures, and regulations to respond to
and prevent incidents of harassment and bullying.
94. Defendants’ actions and/or inactions were unreasonable and failed to
conform to the standard of conduct expected and required by law and constitute a
breach of the affirmative obligation to provide for the safety and well-being of
students.
95. The Defendants’ failure to enact and/or enforce appropriate policies,
procedures, and regulations posed a foreseeable and manifestly unreasonable risk
of harm to students subjected to harassment and bullying.
96. Predicated in part upon the OCR Compliance Review conclusions
contained in Exhibit A, Defendants knew or should have known that the policies,
procedures, and practices of the Department failed to provide for the safety and
well-being of students.
97. As a direct and proximate result of the Defendants’ failure to enact
and/or enforce appropriate policies, procedures, and practices for responding to
and preventing harassment and bullying Plaintiffs have suffered severe and lasting
harm, including but not limited to physical pain and suffering, mental anguish,
psychological damages, trauma, humiliation, academic suffering, stress, and
anxiety.
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COUNT TWO
(Negligent Training and Supervision)
99. The Department of Education had an affirmative duty to provide
proper training, education, and supervision to all employees for appropriately
responding to and preventing harassment and bullying in order to provide for the
safety and well-being of students.
100. Defendants knew or should have known that employees were not
provided with proper training, education, and supervision and that students faced a
foreseeable risk of serious harm as a result.
Defendants breached their duty by failing to provide employees with proper
training, education, and supervision for responding to and preventing harassment
and bullying.
102. Defendants did not enact and/or enforce appropriate policies,
procedures, and regulations on which to base any training, education, or guidance
for employees, and failed to provide any formal or written training, education, or
guidance.
103. Defendants’ actions and/or failure to act directly and proximately
caused severe and lasting harm to the Plaintiffs, including but not limited to
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physical pain and suffering, mental anguish, psychological damages, trauma,
humiliation, academic suffering, stress, and anxiety.
COUNT THREE
(Intentional Infliction of Emotional Distress)
105. The Defendants’ willfully and deliberately breached their duty to
provide for the safety and well-being of students, constituting intentional infliction
of emotional distress.
106. The Defendants acted malignantly and with intent to cause harm, and
did directly and proximately cause severe and lasting physical and emotional harm
to the Plaintiffs, including but not limited to, physical pain and suffering, mental
anguish, psychological damages, trauma, humiliation, academic suffering, stress,
and anxiety.
COUNT FOUR
(Negligent Infliction of Emotional Distress)
108. The Defendants’ actions and/or inactions in failing to enact and/or
enforce appropriate policies, procedures, and practices constitute recklessness and
27
negligence, and Defendants knew or should have known that harm was likely to
occur as a result.
109. Defendant’s actions and/or inactions constitute negligent infliction of
emotional distress and did directly and proximately harm the Plaintiffs, including
but not limited to physical pain and suffering, mental anguish, psychological
damages, trauma, humiliation, academic suffering, stress, and anxiety.
COUNT FIVE
(Child Abuse)
111. Hawaiì law defines child abuse under H.R.S. § 351-1(1) as:
The acts or omissions of any person who, or legal

entity which, is in any manner or degree related to the
child, is residing with the child, or is otherwise
responsible for the child’s care, that have resulted in
the physical or psychological health or welfare of the
child, who is under the age of eighteen, to be harmed,
or to be subject to any reasonably foreseeable,
substantial risk of being harmed. . . .
112. Defendants are persons and the Department of Education is a legal
entity. The Defendants have a heightened custodial duty to provide for the safety
and well-being of students within their complete custody, care and control.
113. The Defendants’ actions and/or failure to act as persons and/or as a
legal entity responsible for the custody, care, and control of children constitutes a
28
breach of Defendants’ duty, and has resulted in harm to the physical and/or
psychological health and welfare of the Plaintiffs and other children within
Defendants’ care.
114. The Defendants’ actions and/or inactions continue to expose Plaintiffs
and the Class to a substantial risk of physical and psychological harms reasonably
likely to occur, including hateful race-based harassment, sexual harassment, bodily
harm, and extreme physical and mental distress.
115. The Defendants’ conduct in knowingly, intentionally and with willful
and/or reckless disregard failing to report, investigate, prevent, and otherwise enact
and/or enforce adequate policies and procedures to protect the physical and
psychological well-being of children in school constitutes child abuse under the
laws of the State of Hawaiì, inter alia.
116. As a direct and proximate result of the Defendants’ carelessness and
willful disregard for the safety and well-being of students within their custody, care
and control, the Plaintiffs have suffered irreparable harm both psychologically and
physically, including but not limited to, physical pain and suffering, mental
and anxiety.
29
COUNT SIX
(Violation of Title VI, Title IX, Section 504, and Title II)
118. The Department of Education is a public entity in receipt of federal
financial assistance and must comply with applicable federal rules and regulations
at all times.
119. The OCR Compliance Review concluded the Department is not in
compliance with numerous federal regulations, including: (1) failing to designate
and provide notice of a coordinator in violation of Title IX, Section 504, and Title
II; (2) failure to disseminate a notice of nondiscrimination in violation of Title VI,
Title IX, Section 504, and Title II; and (3) failing to provide appropriate grievance
procedures in violation of Title VI, Title IX, Section 504, and Title II.
120. As a direct and proximate result of the Defendant’s failure to comply
with federal rules and regulations the Plaintiffs have suffered severe and
irreparable harm, including but not limited to physical pain and suffering, mental
and anxiety.
30
COUNT SEVEN
(Misuse of Federal Funds)
122. The Department of Education is a public entity in receipt of federal
financial assistance disbursed on the premise that the Department is in compliance
with all federal rules and regulations.
123. The Department knowingly, intentionally, and deliberately failed to
comply with numerous rules and regulations of Title VI, Title IX, Section 504, and
Title II.
124. The expenditure of federal funds by the Defendants while knowingly
and deliberately failing to comply with federal requirements constitutes a misuse of
federal funds which were to be disbursed to and expended only by entities in
compliance with federal anti-discrimination rules, regulations, and policies.
125. As a direct and proximate result of the Defendants’ misuse of federal
funds the Plaintiffs have suffered harm both physically and psychologically,
including but not limited to physical pain and suffering, mental anguish,
psychological damages, trauma, humiliation, academic suffering, stress, and
anxiety.
WHEREFORE, Plaintiffs pray for relief as follows:
1. For injunctive and declaratory relief against the Defendants;

31
2. For special damages in amounts to be proven at trial;
3. For general damages in amounts to be proven at trial;
4. For punitive damages in amounts to be proven at trial;
5. For appointment of a Special Master to operate the Hawaiì
Department of Education.
DATED: Honolulu, Hawaiì, August 30, 2018
/s/ Eric A. Seitz

ERIC A. SEITZ
GINA SZETO-WONG
JONATHAN M.F. LOO
32
Case 1:18-cv-00332-KJM-NONE Document 1-1 Filed 08/30/18 Page 1 of 22 PageID #:
33
EXHIBIT A
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53
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Case 1:18-cv-00332-KJM-NONE Document 1-2 Filed 08/30/18 Page 1 of 2 PageID #: 55
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAIÌ
MARCHET DENISE FULLUM, ) Civil No. 18-00332

on behalf of minor child J.F.; )
ANNA GROVE, on behalf of ) DEMAND FOR JURY TRIAL
minor child T.G.; GERALD M )
and SANDEE NIBLOCK, on )
behalf of minor child K.N., )
individually and on behalf of all)
others similarly situated, )
)
Plaintiffs, )
)
vs. )
)
DR. CHRISTINA KISHIMOTO, )
Superintendent of the State of )
Hawaiì Department of Education; )
ELYNNE E. CHUNG, Principal )
of Mililani Middle School; )
DR. BERNADETTE TYRELL, )
Principal of Castle High School; )
BEVERLY STANICH, Principal )
of Wailuku Elementary School; )
ROBERT DAVIS, Central Oahu )
Complex Area Superintendent; )
and DOE DEFENDANTS 1-20, )
)
Defendants. )
______________________________ )
DEMAND FOR JURY TRIAL
Plaintiffs MARCHET DENISE FULLUM, ANNA GROVE, and
GERALD M. and SANDEE J.C. NIBLOCK, in their individual and representative

Case 1:18-cv-00332-KJM-NONE Document 1-2 Filed 08/30/18 Page 2 of 2 PageID #: 56
capacities and on behalf of the class of all other persons similarly situated, by and
through their undersigned attorneys, demand a jury trial as to all issues so triable
herein.
DATED: Honolulu, Hawaiì, August 30, 2018
/s/ Eric A. Seitz

ERIC A. SEITZ
GINA SZETO-WONG
JONATHAN M.F. LOO
2

Case 1:18-cv-00332-KJM-NONE Document 1-3 Filed 08/30/18 Page 1 of 1

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Fullum Et Al v. Kishimoto Et Al

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Case 1:18-cv-00332-KJM-NONE Document 1 Filed 08/30/18 Page 1 of 32 PageID #: 1

ERIC A. SEITZ 1412

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI`I

MARCHET DENISE FULLUM, ) Civil No. 18-00332

of Wailuku Elementary School; )

COMPLAINT FOR DAMAGES

Plaintiffs MARCHET DENISE FULLUM, on behalf of minor child

J.C. NIBLOCK, on behalf of minor child K.N. (collectively the “Plaintiffs”), in

persons similarly situated, by and through their undersigned attorneys, allege as

1. This is a civil action seeking damages, injunctive, and declaratory

relief from the Defendants: DR. CHRISTINA KISHIMOTO, individually and in

her official capacity as Superintendent of the State of Hawai`i Department of

Education (“Department of Education” or the “Department”); ELYNNE E.

CHUNG, individually and in her official capacity as Principal of Mililani Middle

School; DR. BERNADETTE TYRELL, individually and in her official capacity as

President of Castle High School; BEVERLY STANICH, individually and in her

official capacity as Principal of Wailuku Elementary School; ROBERT DAVIS,

individually and in his official capacity as Central Oahu Complex Area

seek appointment of a Special Master to manage the Department of Education.

2. School safety is at the forefront of national concern. In the current

school staff and administration to maintain that environment.

4. Hawai`i is not immune to national trends. Nearly 40% of Hawai`i’s

students report feeling unsafe at school because of bullying or harassment while

of bullying or harassment while at school. The negative impacts are well

documented, ranging from long-term mental health issues and relationship

behavior has lasting harmful effects.

5. As the agency overseeing Hawai`i’s public schools, the Department of

Education is responsible for creating the policies, procedures, and practices to be

and supervision to its staff members. At a minimum, the Department failed to

(“OCR”) Compliance Review findings in January of 2018 (hereinafter “OCR

Compliance Review”), attached hereto and incorporated herein as Exhibit A.

Those findings concluded the Hawai`i Department of Education is not in

compliance with numerous federal regulations governing the response to

harassment based on race, color, national origin, sex, or disability. On a deeper

students attending public schools by neglecting its responsibility as policymaker,

6. The continuing practice of the Defendants and their deliberate

indifference towards victims of bullying and harassment harms all of Hawai`i’s

student population at risk of significant and irreparable damage.

JURISDICTION and VENUE

7. This Court has original jurisdiction to hear this matter pursuant to 28

and therefore fall within the Court’s supplemental jurisdiction pursuant to 28

U.S.C. Section 1367.

Hawai`i pursuant to 28 U.S.C. Section 1391 as all Defendants to the litigation

claim occurred and continue to occur in the state of Hawai`i.

9. Plaintiff MARCHET DENISE FULLUM is and has been a resident of

the County of Honolulu, State of Hawai`i, at all times pertinent hereto.

Maui, State of Hawai`i, at all times pertinent hereto.

12. Defendant DR. CHRISTINA KISHIMOTO is and has been a resident

of the State of Hawai`i at all times pertinent hereto. Defendant KISHIMOTO is

of Hawai`i Department of Education.

13. Defendant ELYNNE E. CHUNG is and has been a resident of the

individually and in her official capacity as Principal of Mililani Middle School.

14. Defendant DR. BERNADETTE TYRELL is and has been a resident

15. Defendant BEVERLY STANICH is and has been a resident of the

individually and in her official capacity as President of Wailuku Elementary

Hawai`i at all times pertinent hereto. Defendant DAVIS is sued herein

individually and in his official capacity as Complex Area Superintendent of the

Oahu Central District, Leilehua-Mililani-Waialua.

17. DOE DEFENDANTS 1-20 (hereinafter “Doe Defendants”) are sued

with the named Defendants as agents, servants, employees, representatives,

contractors, assignees, and licensees and/or in some manner presently unknown to