Elizabeth Cornel v. State of Hawaii

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH CORNEL, No. 20-17425

Plaintiff-Appellant,

D.C. No.

v. 1:19-cv-00236-

JMS-RT

STATE OF HAWAII; HAWAII

PAROLING AUTHORITY; DEXTER

KAUAHI, Badge No. 1199, OPINION

Defendants-Appellees,

and

DOES, JOHN; 1–10; DOES, JANE; 1–

10; DOE PARTNERSHIPS, 1–10; DOE

CORPORATIONS, 1–10,

Defendants.

Appeal from the United States District Court

for the District of Hawaii

J. Michael Seabright, Chief District Judge, Presiding

Argued and Submitted February 16, 2022

Honolulu, Hawaii

Filed June 10, 2022

Before: Michael Daly Hawkins, Ryan D. Nelson, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge R. Nelson

2 CORNEL V. STATE OF HAWAII

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of defendants in an action alleging

constitutional and state law violations when plaintiff was

arrested seven years after the suspension of her parole.

Plaintiff was on parole when she was evicted from her

apartment. She sent a letter to the parole office about her

eviction and provided updated contact information, but the

parole office was unable to contact her with the information

provided. The parole office then suspended plaintiff’s

parole and issued a “retake warrant.” Plaintiff was arrested

seven years later. At the revocation hearing, the parole

office decided not to revoke plaintiff’s parole, retroactively

rescinded her parole suspension, restored her parole end date

to March 2015, and released her from custody. During the

two months she was detained, plaintiff lost her home,

business, and pets.

The panel held that the parole officer permissibly

suspended plaintiff’s parole. Plaintiff’s arrest was

reasonable under the Fourth Amendment because the parole

office had a reasonable belief that she violated her parole.

Because the Fourteenth Amendment does not require notice

to a parolee before a parole suspension hearing, and because

plaintiff was largely responsible for the seven-year delay in

her arrest, her arrest did not violate due process. Plaintiff’s

state law claims failed because the defendants had not

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CORNEL V. STATE OF HAWAII 3

waived immunity for false imprisonment or false arrest, and

she could not establish the elements of her negligence and

intentional infliction of emotional distress claims.

COUNSEL

Paul V.K. Smith (argued) and Terrance M. Revere, Revere

& Associates, Kailua, Hawaii, for Plaintiff-Appellant.

William K. Awong (argued) and Caron M. Inagaki, Deputy

Attorneys General; Clare E. Connors, Attorney General;

Office of the Attorney General, Honolulu, Hawaii; for

Defendants-Appellees.

OPINION

R. NELSON, Circuit Judge:

Elizabeth Cornel was on parole when she was evicted

from her apartment. When the parole office could not find

her, it suspended her parole and issued a “retake warrant.”

Cornel was arrested seven years later. We hold that the

seven-year delay in Cornel’s arrest did not violate due

process because Cornel was largely responsible for the

delay. We also hold that the parole office permissibly

suspended Cornel’s parole and that her arrest was not

unreasonable under the Fourth Amendment. Cornel’s state

law claims fail because Hawai‘i is immune from liability for

her intentional tort claims and Cornel failed to establish

negligence.

4 CORNEL V. STATE OF HAWAII

I

Elizabeth Cornel was released on parole in 2007, with

her sentence set to expire in March 2015. As a condition of

her parole, Cornel had to keep the parole office informed of

her whereabouts.

The first four years of Cornel’s parole proceeded

uneventfully—so uneventfully, Cornel says, that her parole

officer intended to apply for Cornel’s early discharge. The

record does not show that the parole officer ever submitted

a discharge application. But it does show that Cornel was

evicted from her apartment in 2011. She sent a letter to the

parole office about her eviction and provided an updated

P.O. box address, temporary physical address, and phone

number. After receiving Cornel’s letter, the parole office

tried—and failed—to contact Cornel. Her phone number

would not receive incoming calls. Mail sent to the P.O. box

was returned as undeliverable. And when a parole officer

visited the address, Cornel was not there.

The parole office issued a “retake warrant” for Cornel’s

arrest and suspended her parole. Cornel had no contact with

the parole office after her eviction but assumed that

“everything was fine” and that she had been discharged from

parole. Cornel lived openly on Oahu from 2011 until 2018.

Over the course of those years, she visited city, county, and

state offices, filed tax returns, registered a business with

Hawai‘i’s Department of Commerce and Consumer Affairs

(in 2016), and renewed her driver’s license (in 2017). She

also signed leases for two Oahu properties.

The record does not show how frequently the parole

office sought to locate Cornel. But the parole office

periodically reviews available records and social media

accounts to generate leads on outstanding retake warrants.

CORNEL V. STATE OF HAWAII 5

These reviews generally occur about once a month. During

one of these routine checks, the parole office learned that

Cornel had used a Waimanalo address to renew her driver’s

license. Cornel was arrested in February 2018 by Officer

Dexter Kauahi—shortly after renewing her license but

almost seven years after the retake warrant was issued.

Following Cornel’s arrest, the parole office extended her

maximum parole term to account for her suspension and

advised Cornel of her right to appear at a preliminary hearing

and present evidence. Cornel waived her right to a pre-

revocation hearing and acknowledged that she would be

detained. At the revocation hearing, the parole office

decided not to revoke Cornel’s parole, retroactively

rescinded her parole suspension, restored her parole end date

to March 2015, and released her from custody.

During the two months she was detained, Cornel lost her

home, business, and pets. Cornel sued Kauahi, the parole

office, and the State of Hawai‘i for violating her Fourth and

Fourteenth Amendment rights and for various torts under

Hawai‘i law. The district court granted summary judgment

to the defendants.

II

We review de novo the district court’s decision to grant

summary judgment, viewing the evidence in the light most

favorable to the nonmoving party. Frudden v. Pilling,

877 F.3d 821, 828 (9th Cir. 2017). “When interpreting state

law, we are bound to follow the decisions of the state’s

highest court . . . .” Diaz v. Kubler Corp., 785 F.3d 1326,

1329 (9th Cir. 2015) (citation omitted).

6 CORNEL V. STATE OF HAWAII

III

We start with Cornel’s constitutional claims. Section

1983 provides a cause of action against “[e]very person who,

under color of” law deprives another of “rights, privileges,

or immunities secured by the Constitution.” 42 U.S.C.

§ 1983. “States or governmental entities that are considered

‘arms of the State’ for Eleventh Amendment purposes are

not ‘persons’ under § 1983.” Doe v. Lawrence Livermore

Nat’l Lab’y, 131 F.3d 836, 839 (9th Cir. 1997) (quoting Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)).

There are thus two situations in which a state official might

be liable to suit under the statute. First, plaintiffs may seek

damages against a state official in his personal capacity.

Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016).

Second, state officials are “persons” under § 1983 when sued

for prospective injunctive relief. Will, 491 U.S. at 71 n.10.

This exception for prospective injunctive relief, called the Ex

parte Young doctrine, applies where a plaintiff “alleges an

ongoing violation of federal law, and where the relief sought

is prospective rather than retrospective.” Doe, 131 F.3d at

839 (quoting Idaho v. Coeur d’Alene Tribe, 521 U.S. 261,

294 (1997) (O’Connor, J., concurring)).

Cornel cannot seek damages from Hawai‘i and the parole

office because they are not “persons” under § 1983. 1

Although Kauahi could be subject to suit under Ex parte

Young, 209 U.S. 123 (1908), Cornel identifies no ongoing

violation of federal law to enjoin. Her § 1983 claim is

1

Cornel contends that Hawai‘i and the parole office consented to

jurisdiction over her § 1983 damages claims by removing the case to

federal court. But she confuses state waiver of Eleventh Amendment

immunity with the separate inquiry of whether state defendants are

“persons” under § 1983.

CORNEL V. STATE OF HAWAII 7

therefore limited to damages against Kauahi in his personal

capacity.

As a state official, Kauahi is entitled to qualified

immunity from a claim for damages unless Cornel raises a

genuine issue of fact showing (1) a violation of a

constitutional right that (2) was clearly established at the

time of the alleged misconduct. See Evans v. Skolnik,

997 F.3d 1060, 1064 (9th Cir. 2021) (quoting Pearson v.

Callahan, 555 U.S. 223, 232 (2009)). “We may address

these two prongs in either order.” Id. (quoting Sandoval v.

Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th

Cir. 2014)). The Supreme Court recognizes two

circumstances where reaching the constitutional issue first

would be beneficial: “[1] cases in which the court cannot

readily decide ‘whether a right is clearly established without

deciding precisely what the existing constitutional right

happens to be,’ [2] and cases involving ‘questions that do not

frequently arise in cases in which a qualified immunity

defense is unavailable.’” Id. at 1065 (quoting Pearson,

555 U.S. at 236). We conclude that both circumstances

apply here and therefore begin with the constitutional issues

raised by Cornel’s claims.

A

Cornel argues that her arrest violated the Fourth

Amendment in four ways. First, she contends that the retake

warrant was “stale” by the time of her arrest in 2018.

Second, she labels her arrest unreasonable because it was

three years after the “maximum parole date” noted on the

retake warrant. Third, Cornel asserts that the government’s

interest in arresting her seven years after the alleged

violation was de minimis. Finally, she argues that the arrest

violated Hawai‘i law.

8 CORNEL V. STATE OF HAWAII

The Fourth Amendment prohibits “unreasonable

searches and seizures.” U.S. Const. amend IV. “Under the

general Fourth Amendment approach, we assess

reasonableness by examining the totality of the

circumstances and balancing the intrusion on the

individual’s privacy against the promotion of legitimate

governmental interests.” Sherman v. U.S. Parole Comm’n,

502 F.3d 869, 883 (9th Cir. 2007) (citing Samson v.

California, 547 U.S. 843, 848 (2006)). In most criminal

cases, we interpret “reasonableness” to require “a judicial

warrant issued upon probable cause.” Id. (quoting Skinner

v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989)). But

these requirements do not always apply to searches and

seizures of parolees. Because “[r]evocation of parole is not

part of a criminal prosecution,” we do not extend parolees

“the full panoply of rights” promised to people not yet

convicted of a crime. Id. at 883 (citation omitted). Although

a parolee is not “at the unfettered mercy of the parole

authorities, [s]he is justifiably subjected to restrictions not

applicable to the population as a whole.” Latta v. Fitzharris,

521 F.2d 246, 250 (9th Cir. 1975).

For these reasons, “probable cause is not required to

arrest a parolee for a violation of parole.” Sherman, 502 F.3d

at 884 (citation omitted). Instead, a parole officer may arrest

a parolee if the officer “reasonably believes a parolee is in

violation of [her] parole.” United States v. Rabb, 752 F.2d

1320, 1324 (9th Cir. 1984). In the search context, we have

permitted searches of a parolee and her home based on a

“hunch” arising from what an officer has learned or observed

about the parolee. Latta, 521 F.2d at 250.

Of course, an officer’s reasonable belief—like probable

cause—can become “stale” over time. Cornel argues that is

the case here—i.e., that her arrest was unreasonable because

CORNEL V. STATE OF HAWAII 9

seven years had passed since the retake warrant was issued.

But “[t]he mere lapse of substantial amounts of time is not

controlling in a question of staleness.” United States v. Lacy,

119 F.3d 742, 745 (9th Cir. 1997) (quoting United States v.

Dozier, 844 F.2d 701, 707 (9th Cir. 1988)). Rather, “[w]e

evaluate staleness in light of the particular facts of the case

and the nature of the criminal activity.” Id. (quoting United

States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993)). If “there

is sufficient basis to believe, based on a continuing pattern

or other good reasons,” that the basis for a parole officer’s

reasonable belief still exists, a retake warrant is still valid.

See id. at 745–46 (quoting United States v. Gann, 732 F.2d

714, 722 (9th Cir. 1984)).

The evidentiary support for Cornel’s arrest is not the

kind that dissipates over time. The parole office had a

reasonable belief that Cornel violated her parole because it

could not contact her with the information she provided.

Although Cornel argues there is a material dispute of fact

whether she violated her parole conditions, there is no

evidence that Cornel could, in fact, be contacted with the

information she provided. Cornel says that she provided the

parole office with updated contact information and it never

contacted her. Notably missing is any declaration that

Cornel was, in fact, able to be reached at the phone number,

mailing address, and physical address provided. The parole

office asserts Cornel could not be reached. And Cornel does

not raise a genuine dispute of fact on that point.

We also disagree with Cornel’s assertions that the

government’s interest in her arrest was de minimis and that

her arrest was unreasonable because the retake warrant noted

a 2015 maximum parole date. We have recognized that the

government’s interest in monitoring parolees is more than de

minimis. See Rabb, 752 F.2d at 1324 (“[O]nce a violation is

10 CORNEL V. STATE OF HAWAII

established, the public interest in apprehending parole

violators outweighs the parolee’s privacy interest.”). And

although Cornel argues that she had no reason to believe that

she could be in violation of her parole three years after her

original maximum parole date, “Fourth Amendment

reasonableness is predominantly an objective inquiry.”

Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (quotation

marks and citation omitted). So Cornel’s subjective

expectations do not render the arrest unreasonable. Instead,

we ask “whether the circumstances, viewed objectively,

justify the challenged action.” Id. (brackets, quotation

marks, and citation omitted).

Cornel’s arrest was reasonable. Kauahi reasonably

believed that Cornel was in violation of her parole because

Cornel could not be contacted and, other than the one letter

that she sent with insufficient contact information, she took

no action to ensure that the parole office could maintain

contact with her. Her parole was lawfully suspended, and

the retake warrant was properly issued. See Haw. Rev. Stat.

§ 353-66(c). Kauahi had more than a “hunch” that Cornel

violated her parole; he had a properly issued arrest warrant.

See Rabb, 752 F.2d at 1324. The maximum parole date on

the retake warrant was not a magical deadline for the parole

office. As Kauahi explains, a retake warrant does not reflect

adjusted parole dates after a parole suspension. Even though

Cornel was arrested after the maximum parole date on the

warrant, nothing about the date suggests unreasonableness.

Cornel also contends that her arrest violated Hawai‘i

law. According to Cornel, the parole office could only

suspend her parole if her whereabouts were not known

because of her neglect. Cornel also points to Hawai‘i Penal

Code Rule 9(c), which requires that arrest warrants be

executed “without unnecessary delay.”

CORNEL V. STATE OF HAWAII 11

Even if Cornel’s arrest violated state law, it was not

necessarily a violation of her Fourth Amendment rights. The

Supreme Court has rejected the notion that a violation of

state law automatically violates the Fourth Amendment.

Virginia v. Moore, 553 U.S. 164, 173 (2008). “[W]hen a

State chooses to protect . . . beyond the level that the Fourth

Amendment requires, these additional protections

exclusively are matters of state law.” Tabares v. City of

Huntington Beach, 988 F.3d 1119, 1122 (9th Cir. 2021)

(quoting Moore, 553 U.S. at 171) (quotation marks and

brackets omitted). We hold that Cornel’s arrest was

reasonable under the Fourth Amendment despite the parole

office’s possible violation of the Hawai‘i Penal Code.

B

Cornel next argues that her parole suspension and arrest

violated due process. In particular, she contends that she was

entitled to a hearing before her parole was suspended and

that the parole office’s seven-year delay violated the

Fourteenth Amendment.

1

The parole office’s decision to suspend Cornel’s parole

in 2011—after trying and failing to contact her with the

information she provided—did not violate due process

because the Fourteenth Amendment does not require notice

before a parole suspension hearing. See Morrissey v.

Brewer, 408 U.S. 471, 485–90 (1972). Indeed, at the earliest

available opportunity, Cornel was given due process and a

hearing. Furthermore, Cornel was not prejudiced by the

suspension because the parole office ultimately did not

revoke her parole.

12 CORNEL V. STATE OF HAWAII

2

Nor did the delay in Cornel’s arrest violate her due

process rights. Fifty years ago, we stated that “[t]here is

substantial authority for the position that due process

requires reasonable diligence in the issuance and execution

of a warrant for arrest for an alleged parole violation.”

McCowan v. Nelson, 436 F.2d 758, 760 (9th Cir. 1970) (per

curiam) (collecting cases). We have never explained what

“reasonable diligence” requires. We now clarify that

“reasonable diligence” is but one factor to consider when

evaluating whether a delay in arrest violates due process, and

we hold that a delay in a parolee’s arrest does not violate due

process when the parolee is largely responsible for the delay

and cannot demonstrate prejudice.

We have considered similar timeliness concerns in the

context of the Speedy Trial Clause, parole revocation

proceedings, and a now-repealed federal statute that granted

jurisdiction to issue retake warrants. 2 In Speedy Trial cases, 3

2

Timeliness challenges under the retake-warrant statute are “not a

jurisdictional issue but, instead, . . . one of due process.” United States

v. Berry, 814 F.2d 1406, 1410 (9th Cir. 1987). The analogy is apt

because both inquiries address the concern that “a warrant issued ex

parte could be held against an unknowing [parolee] indefinitely, and

executed at any time for reasons unrelated to the original violation.”

United States v. Hill, 719 F.2d 1402, 1405 (9th Cir. 1983). Although

Hill concerned a warrant for a probation violation, the same principles

apply because “[p]arole, probation, and supervised release revocation

hearings are constitutionally indistinguishable and are analyzed in the

same manner.” United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir.

2005).

3

“In the context of revocation of supervised release [or parole],

Speedy Trial Clause authority is applicable only by analogy, but in the

past we have found that analogy helpful, though we have not probed how

CORNEL V. STATE OF HAWAII 13

we balance the “‘[l]ength of delay, the reason for the delay,

the defendant’s assertion of [her] right, and prejudice to the

defendant.’ None of these four factors are either necessary

or sufficient, individually, to support a finding that a

defendant’s speed[y] trial right has been violated.” United

States v. Mendoza, 530 F.3d 758, 762 (9th Cir. 2008)

(quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). At

about one year, a delay becomes presumptively prejudicial.

Id.

Of course, timeliness in going to trial differs from the

administration of parole. Parolees challenging the

timeliness of parole revocation hearings must show both

unreasonable delay and prejudice to obtain relief. Santana,

526 F.3d at 1260. The length of delay is a factor in

evaluating whether the delay was reasonable, 4 but is not

dispositive when “the [parolee’s] own conduct caused the

delay between issuance and execution of the warrant.” See

Hill, 719 F.2d at 1405. And even if the delay is

unreasonable, parolees must show that they suffered

prejudice. 5

far the analogy goes.” United States v. Santana, 526 F.3d 1257, 1260

(9th Cir. 2008).

4

See, e.g., Hill, 719 F.2d at 1405 (two-and-a-half-year delay was

unreasonable when the government knew where to find the probationer

and no effort was made to serve the warrant); Santana, 526 F.3d at 1260

(distinguishing Hill and Speedy Trial presumption of prejudice for lack

of extreme delay).

5

At least two other circuits agree that delay without prejudice does

not violate due process in the post-sentencing context. See, e.g., United

States v. Sanchez, 225 F.3d 172, 175–77 (2d Cir. 2000) (delay between

violation and issuance of summons does not violate due process absent

prejudice); United States v. Tippens, 39 F.3d 88, 90 (5th Cir. 1994) (per

14 CORNEL V. STATE OF HAWAII

The Sixth Circuit has similarly held that a parolee’s

partial responsibility for the delay in his arrest precludes a

due process violation. Bennett v. Bogan, 66 F.3d 812, 819

(6th Cir. 1995). In Bennett, a parolee challenged his arrest

that occurred five and a half years after the retake warrant

was issued. Id. at 818. As here, the parolee lived openly in

the jurisdiction and filed tax returns. Id. at 814. Even so,

the Sixth Circuit held that the parolee was “in part

responsible for the delayed execution of the warrant”

because he “failed to report to his probation officer and

failed to remind the State . . . that he was required to serve a

state sentence.” Id. at 819. Although the State’s delay

bordered on inexcusable neglect, the parolee’s lack of

diligence precluded a due process violation. Id.

Like the parolee in Bennett, a prompt arrest by the

Hawai‘i parole office would have resolved the matter

quickly and allowed Cornel to “pa[y any] debt to society and

return[] to [her] community unencumbered.” See id. And,

like the Bennett parolee, Cornel was the main reason for the

delay in her arrest. See id. To be sure, notions of

fundamental fairness seem to require that the government

execute a retake warrant with reasonable speed. But we have

never held that the Due Process Clause requires the

government to find and arrest a suspect in a specified amount

of time. We would face a thornier question if there were

evidence that the parole office had actual knowledge of

Cornel’s whereabouts. Instead, Cornel gave the parole

office new contact information, never responded to the

parole office’s attempts to contact her with that information,

curiam) (citation omitted) (“[A] delay in executing a violator’s warrant

may frustrate a [parolee’s] due process rights if the delay undermines

[her] ability to contest the issue of the violation or to proffer mitigating

evidence.”).

CORNEL V. STATE OF HAWAII 15

and now blames the parole office for taking too long to figure

out where she was.

Cornel failed to fulfill her parole obligation to provide

the parole office with correct and up-to-date contact

information. Even if the parole office should have acted

more diligently, Cornel was not deprived of due process

when the delay was mainly caused by her failure to inform

the parole office of her whereabouts. We therefore affirm

the district court’s grant of summary judgment to Kauahi on

Cornel’s § 1983 claim.

C

Aside from her constitutional claims, Cornel also brings

state law claims for false arrest, false imprisonment,

intentional infliction of emotional distress (IIED), negligent

infliction of emotional distress (NIED), and gross

negligence. The district court granted summary judgment to

Kauahi because he was entitled to qualified privilege. It

granted summary judgment to Hawai‘i and the parole office

because (1) they had not waived liability for false

imprisonment and false arrest under the State Tort Claims

Act, Haw. Rev. Stat. ch. 66; and (2) Cornel had failed to

establish elements of her IIED, NIED, and gross negligence

claims. We affirm.

1

Under Hawai‘i law, nonjudicial government officials

have a qualified privilege for tortious actions taken in the

performance of their public duty. Towse v. State, 647 P.2d

696, 702 (Haw. 1982). “[I]n order for an action to lie against

an official acting under a claim of privilege, . . . the injured

party [must] allege and prove . . . that the official had been

motivated by malice and not by an otherwise proper

16 CORNEL V. STATE OF HAWAII

purpose.” Id. Although malice is usually a question for the

jury, the court may rule on the existence or absence of malice

based on uncontroverted affidavits or depositions. Runnels

v. Okamoto, 525 P.2d 1125, 1129 (Haw. 1974).

On appeal, Cornel argues that Kauahi is not shielded by

qualified privilege because he arrested her on a “facially

invalid” warrant and acted unreasonably in doing so. She

does not argue that Kauahi was motivated by malice; instead,

she contends that a malice requirement is unconstitutional

because malice is not required under the Fourth Amendment.

Cornel’s argument impermissibly conflates the legal

standards under the Fourth Amendment and Hawai‘i law.

Cf. Tabares, 988 F.3d at 1122. Hawai‘i is not

constitutionally required to provide a cause of action for

Fourth Amendment violations, so Cornel must establish

malice to prevail on her state law claims. Kauahi asserts that

warrants with maximum parole term dates that have already

expired are still considered outstanding and should be

served. He believed that the retake warrant was still

outstanding, valid, and needed to be served. Before the

arrest, Kauahi had never met Cornel and “had no ill-will or

malice toward [her].” Because there is no evidence of

malice, the district court properly granted summary

judgment to Kauahi.

2

Cornel argues that Hawai‘i and the parole office can be

liable for false arrest and false imprisonment through

respondeat superior liability, and because her arrest was

“outrageous” (presumably under Hawai‘i’s standard for

IIED).

Neither Hawai‘i nor the parole office can be vicariously

liable for false imprisonment or false arrest because the State

CORNEL V. STATE OF HAWAII 17

Tort Liability Act does not waive immunity for those claims.

Haw. Rev. Stat. § 662-15 (State Tort Liability Act “shall not

apply to . . . [a]ny claim arising out of . . . false imprisonment

[or] false arrest.”); see Doe Parents No. 1 v. State, Dep’t of

Educ., 58 P.3d 545, 578–79 (Haw. 2002), as amended (Dec.

5, 2002).

Cornel’s IIED claim also fails because she cannot

identify sufficiently “outrageous” conduct. Under Hawai‘i

law, “the elements of IIED are ‘(1) that the act allegedly

causing the harm was intentional or reckless, (2) that the act

was outrageous, and (3) that the act caused (4) extreme

emotional distress to another.’” Enoka v. AIG Haw. Ins. Co.,

128 P.3d 850, 872 (Haw. 2006), as corrected (Feb. 28, 2006)

(citation omitted). “The term ‘outrageous’ has been

construed to mean ‘without just cause or excuse and beyond

all bounds of decency.’” Id. (citation omitted). “The

question whether the actions of the alleged tortfeasor are . . .

outrageous is for the court in the first instance, although

where reasonable persons may differ on that question it

should be left to the jury.” Shoppe v. Gucci, 14 P.3d 1049,

1068 (Haw. 2000) (quotation marks and citations omitted).

Although the seven-year delay in executing Cornel’s

retake warrant was far from ideal, it was not “outrageous”

for purposes of IIED. Cornel had not served her sentence,

and her parole had not been discharged at the time of her

arrest. Perhaps the parole office should have acted more

diligently in locating Cornel after she failed to keep it

informed of her whereabouts, see State v. Owens, 172 P.3d

484, 492 (Haw. 2007), but Cornel has identified no conduct

“beyond all bounds of decency,” see Enoka, 128 P.3d at 872

(quotation marks and citation omitted).

Cornel’s negligence-based claims also fail. A

negligence action under Hawai‘i law requires “(1) [a] duty,

18 CORNEL V. STATE OF HAWAII

or obligation, recognized by the law,” (2) a breach of that

duty or obligation, “(3) [a] reasonably close causal

connection between the conduct and the resulting injury; and

(4) [a]ctual loss or damage resulting to the interests of

another.” Molfino v. Yuen, 339 P.3d 679, 682 (Haw. 2014)

(quoting Takayama v. Kaiser Found. Hosp., 923 P.2d 903,

915–16 (Haw. 1996)). Absent certain circumstances, NIED

requires that someone was physically injured by the

defendant’s conduct. Doe Parents No. 1, 58 P.3d at 580.

“Gross negligence is an aggravated form of negligence,

which differs from ordinary negligence only in degree and

not in kind.” State v. Bunn, 440 P.2d 528, 534 (Haw. 1968).

Hawai‘i law requires parole arrest warrants to be

executed “without unnecessary delay.” See Haw. Rev. Stat.

§ 353-66(c). But even if the defendants had a duty to execute

the arrest warrant within a reasonable time, Cornel fails to

show that the parole office’s alleged delay caused damages.

If Kauahi had arrested Cornel earlier, she still would have

faced the same loss of liberty. She therefore fails to establish

the damages element of her negligence-based claims.

IV

The parole office permissibly suspended Cornel’s

parole. Cornel’s arrest was reasonable under the Fourth

Amendment because the parole office had a reasonable

belief that she violated her parole. Because the Fourteenth

Amendment does not require notice to a parolee before a

parole suspension hearing, and because Cornel was largely

responsible for the seven-year delay in her arrest, her arrest

did not violate due process. And Cornel’s state law claims

fail because the defendants have not waived immunity for

CORNEL V. STATE OF HAWAII 19

false imprisonment or false arrest and she cannot establish

the elements of her remaining claims.

AFFIRMED.