Elizabeth Cornel v. STATE OF HAWAII ; HAWAII PAROLING AUTHORITY ; DEXTER KAUAHI , Badge No. 1199

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH CORNEL ,
Plaintiff-Appellant,
v.
STATE OF HAWAII ; HAWAII
PAROLING A UTHORITY ; DEXTER
KAUAHI , Badge No. 1199,
Defendants-Appellees,
and
DOES , J OHN; 1–10; DOES , J ANE ; 1–
10; DOE PARTNERSHIPS , 1–10; DOE
CORPORATIONS , 1–10,
Defendants.
No. 20-17425
D.C. No.
1:19-cv-00236-
JMS-RT
OPINION
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

-- 1 of 19 --

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rescinded her parole suspension, restored her parole end date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.

-- 2 of 19 --

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.

-- 3 of 19 --

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.

-- 4 of 19 --

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).

-- 5 of 19 --

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.

-- 6 of 19 --

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.

-- 7 of 19 --

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

-- 8 of 19 --

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

-- 9 of 19 --

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.”

-- 10 of 19 --

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.

-- 11 of 19 --

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

-- 12 of 19 --

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

-- 13 of 19 --

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.”).

-- 14 of 19 --

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

-- 15 of 19 --

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

-- 16 of 19 --

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,

-- 17 of 19 --

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

-- 18 of 19 --

CORNEL V . STATE OF HAWAII 19
false imprisonment or false arrest and she cannot establish
the elements of her remaining claims.
AFFIRMED.

-- 19 of 19 --