*1 1020 ninety

stayed and allowed Downs its order Crystal AMMONS, Plaintiff-Appellee, discovery. He did not do days to conduct so, his mo- choosing rather withdraw v. appeal. tions instant Because and file State WASHINGTON DEPART op- his diligently pursue Downs failed AND MENT OF SOCIAL HEALTH portunity discovery, find no to conduct we SERVICES; Webster, Norm individu abuse of the district court’s discretion. ally capacity acting and in his official Cal., Inc., Qualls Blue Cross See v. law; Mary under color of state La- (9th Cir.1994). 839, F.3d Fond, Defendants-Appellants. support any

Downs fails to of his re- No. 09-36130. argument. According- maining issues of Appeals, United States Court ly, we them waived. deem See Greenwood Ninth Circuit. (9th FAA, 971, Cir.1994); v. 28 F.3d Argued and Nov. Submitted 2010. (9th Leer 844 F.2d Murphy, Cir.1988) (issues argued not are deemed Aug. Filed abandoned). Conclusion

V. prohibition

We hold that NDOC’s possession typewriters

inmate does not

unconstitutionally infringe rights upon the The appellants. ban was enacted to

reasonably a legitimate advance correc- goal ap-

tional of institutional As safety. inmates,

plied to these result in does not

an unconstitutional denial of access to

courts to demon- because failed injury.

strate actual court district did admitting abuse its discretion either

the NDOC’s affidavits or on sum- ruling

mary when it did.

AFFIRMED. *3 Moody, Hagens

David P. Berman Sobol LLP, Seattle, Shapiro WA, plain- for the tiff-appellee. M.

Ian Bauer and Campbell Patricia Fetterly, Office the Attorney General of Washington, WA, Olympia, for the defen- dants-appellants.

Before: BETTY B. FLETCHER and BYBEE, JAY S. Judges, Circuit WILKEN, Judge.* CLAUDIA District FLETCHER; Opinion by B. Judge Partial Concurrence and Partial Dissent by Judge BYBEE.

OPINION FLETCHER, B. Circuit Judge: Appellants Mary (“LaFond”) (“Webster”) (collec- and Norman Webster * Wilken, California, The Honorable Claudia United sitting designation. States Judge District for the Northern District Services, Nursing qualified Mary Director of CSTC tively relying “Appellants”), raised, Rutherford, among court’s order appeal the district Claire immunity, summary judg- for improper motion concerns about clin- denying things, their (“Am- Ammons Crystal Appellee handling reported ment. sexual inci- ical staff mons”) under LaFond and Webster sued cottages. in the resident dents violating her Four- 42 U.S.C. during early also LaFond’s ten- pro- due substantive teenth Amendment (“Resident A”) ure, patient at CSTC in the conditions while right cess to safe named alleged that male staff member institution. custody of a state-run mental sexually Anthony molested her. Grant had mo- Appellants’ court denied district *4 reported to allegations These were Child judgment, rejecting both summary tion for (“CPS”) and, according Protective Services qualified claims and Webster’s LaFond’s LaFond, the female Grant’s access to record, It immunity. concluded during restricted the result- patients was favorable to light in most when read ing investigation. CPS conducted inter- Ammons, Appel- the claim that supported A, Grant, staff, views with Resident professional judg- to exercise lants failed patient. at one A re- and least Resident safety. respect to Ammons’s ment with investigator that peated to the CPS Grant ju- timely appealed. We have Appellants her. speaking had molested While later 1291, and we under 28 U.S.C. risdiction Bacon, psycholo- Dr. with Jan resident part. in part affirm in and reverse however, accusation, she recanted her gist, stating time she at the same was I. losing upset about contact with Grant. Af- place in case took at the The events investigator ter LaFond informed CPS Department of Social Washington State recanted, A had CPS con- Resident (“DSHS”) Child and Health Services’s allegations cluded that the were “unfound- (“CSTC”). Study Treatment Center and investigation. ed” and closed hos- psychiatric is a residential CSTC and severely emotionally behav- pital for 2001, In October after CPS closed its which, 2001, children, iorally in disturbed Grant, investigation Crystal Ammons forty-eight inpa- approximately served admitted Ammons was was CSTC. both patients tients. residents are CSTC’s thirteen-year-old girl who had become custody. in at and its CSTC Washington at dependent of the State at age placement of four. Prior to her was Appellant Mary LaFond CSTC’s CSTC, by Ammons raised her 1995 to the had been Executive from Chief Officer Norm then an Appellant grandmother Web maternal and end March 2003. intermittently uncle; in var at CSTC her ster worked and she was removed from aunt 1970 and 1990. capacities ious between reported aunt and uncle’s care after she Nursing the Director of He then served as her. sexually that her uncle had abused January April 2003.1 from Services ultimately uncle convicted Ammons’s was 2003, upon departure April LaFond’s molesting her. She was moved into CSTC, her as succeeded CSTC’s Webster 1995, age in March at seven. foster care CEO. eighteen, ages of seven and Between placed in 2000, Ammons was various residential 10, February during LaFond’s

On CEO, hospitals, one psychiatric from care facilities she received letter tenure as ployed or 2001. re- at CSTC 2000 February left of 1990 and 1. Webster January 2003. He was not em- turned in In October incidents Ammons’s be- of which was CSTC.2 flirtatious CSTC, Am residing with male staff. The began when she havior notes associ- foster care of social work with mons was ated her evaluations that she indicate (“Tienhaara”) her “boundary problems” staff, er Tienhaara Corrie had with the family. closely staff direct members to specifically monitor her interactions with CSTC, stayed While Ammons was she employees. Throughout early male regular Tienhaara, contact with who part of Ammons left the facili- before pre- became concerned about Ammons’s ty, was further noted that Ammons had seemingly close relation- occupation a “crush” on one of the male mem- staff with ship Grant. Tienhaara’s concerns bers, and that she spending time with upon learning grew given that Grant had seeking him alone and out his attention. gifts, including Ammons a stuffed animal compact discs. visited Tienhaara Ramsey, a patient Jessica fellow CSTC the first time in November Ammons, who CSTC was friends tes- at which time she communicated con- “extremely tified Grant was flirta- Ilys cerns about Hernandez Grant *5 Ammons, tious” with her and and that (“Hernandez”), the head of cot- Ammons’s their apparent flirtatious interactions were at tage CSTC. Tienhaara voiced her con- and to Hernandez Dr. Bacon. She further straightforward manner, cerns and it was testified that obvious how infatuated specifically requested she that Grant not Grant, Ammons with was but no that re- permitted be to be alone Ammons. strictions were ever in- placed Grant’s response, Hernandez told her that teractions Ramsey. with Ammons or Grant was never alone with Ammons and Rather, according Ramsey, to frequen- policy against that CSTC a strict had male cy of Grant’s interactions with her and being pa- counselors alone with female Ammons Ramsey continued to escalate. tients. Hernandez did reveal that stated that she and pass Ammons would allegations abuse had been made through *6 timely appealed. The of and sexual intercourse described included immunity qualified are is entitled took activity of types sexual now us. before in “canteen occasions the place multiple on II. relationship At the this sexual

area.” time old, twenty-nine years began, Grant was resolve whether we have We first fourteen. Tienhaara Ammons was interlocutory ap jurisdiction hear this molestation, this contacted CSTC about court’s denial of a claim peal. “[A] district After placed on leave. and CSTC Grant immunity, to the qualified of extent matter several investigating the for law, appealable is an turns on an issue of had, months, that Grant CSTC concluded meaning of 28 ‘final the decision’ within in inter duty, engaged on sexual while notwithstanding the absence 1291 U.S.C. during Ammons her residence course with Forsyth, judgment.” v. of a final Mitchell eventually fired facility. the CSTC at 2806, 511, 530, 105 86 472 U.S. S.Ct. Grant.3 (1985). This 411 is because L.Ed.2d ato summary judgment is denied LaFond, DSHS, “[w]hen

Ammons sued immu qualified who Court, urges defendant County Superior in Webster Pierce suit, court’s from (1) nity shelters her un- negligent was alleging DSHS conclusively finally disposes of order failing protect law der state for right to stand the defendant’s claim of dangerous proclivities from “known Jordan, - U.S. -, (2) v. 131 Grant,” Web- trial.” Ortiz Anthony LaFond and (2011) 884, 891, to Am- 178 L.Ed.2d 703 deliberately indifferent S.Ct. ster were charge charged plea criminally three entered an was 3. Grant Alford/Newton degree rape in third immoral counts of of a child with a minor for of communication in the child molestation Washington and one count of in law. purposes violation 2005, 22, degree. February Grant third On 1026 Mitchell, 527, 105

(citing appellants 472 U.S. S.Ct. lished law” such that are not (internal 2806) quotation Lytle Wondrash, marks and altera- immune from suit. v. omitted). (9th (internal appealable 1083, 1086 Cir.1999) tion issue is a “[T]he 182 F.3d legal omitted). purely alleged one: whether the facts quotation citation and marks ... by plaintiff support claim of [ ] Qualified immunity shields state clearly violation of established law.” liability damages officers from civil un Mitchell, 472 U.S. 528 n. 105 S.Ct. (1) alleged by plaintiff less the facts Accordingly, jurisdiction “[o]ur 2806. establish violation the plaintiffs con generally ques- these matters is limited to (2) rights; stitutional the constitution law tions of and does not extend to claims al right question was “clearly estab qualified determination of im- lished” when the defendant committed his depends disputed munity issues of ma- alleged Callahan, misconduct. Pearson v. Gomez, fact.” terial 267 F.3d Jeffers 808, 815-16, 129 S.Ct. (9th Cir.2001); Ortiz, see also (2009). L.Ed.2d 565 Put way, another exist, 891. disputed S.Ct. at “Where facts qualified principles “[t]he immunity however, we can determine whether personal shield an officer liability qualified immunity denial appropri- when an reasonably officer believes that by ate assuming the version of the complies his or her conduct with the law.” by material facts asserted non-moving given Id. at 823. Courts are the discretion Jeffers, party is correct.” F.3d at 903 to decide “which of prongs the two (citations omitted). qualified immunity analysis be should ad appeal, In this arewe asked to resolve dressed first in light of the circumstances law, multiple issues including the cor- particular case at hand.” Id. rect standard under which to assess al- Here, it is difficult to assess whether the leged violations of Fourteenth Amend- facts alleged Ammons al- establish the ment due process rights by substantive leged constitutional violation without set- hospital administrators, state and the ex- ting governing Therefore, forth the law. tent to which law estab- *7 we clearly first examine the established lished. We must also determine whether respect law with alleged to the Fourteenth alleged by Ammons, facts and shown violation, Amendment and then determine some of which in dispute, support are a whether the facts us support before such a constitutional Accordingly, violation. we violation. jurisdiction have appeal, to hear this Appellants’ we evaluate of qualified claims IV. immunity by resolving all disputes factual right For a constitutional “clearly to be Ammons’s favor. See id.

established,” contours of right “[t]he III. sufficiently must be clear that a reasonable official would understand that what he is We a review de novo district doing right.” violates that v. Anderson qualified denial immunity court’s of by 635, 640, Creighton, 483 U.S. 107 S.Ct. summary judgment. City Davis v. Las 3034, (1987). 97 L.Ed.2d 523 In other 1048, (9th Vegas, Cir.2007) 478 F.3d 1053 words, light “in pre-existing law the (citing Bingham City v. Manhattan apparent.” must Beach, (9th unlawfulness be Id. 939, Cir.2003)). 341 F.3d 945 In reviewing qualified the denial of immu A. Right The Constitutional nity, we “purely legal consider the issue of whether facts alleged by plaintiff sup Although asserts in com- Ammons her port a claim of plaint violation of Appellants estab- violated her consti-

1027 Youngberg, According to the Con protection, as “equal well right to tutional officials, in requires hospital stitution constitutionally protected right to as [her] right a protect patient’s to safe law,” order to process due procedural conditions, judgment. exercise professional that La- facts her contention alleged 321-22, 102 2452. The Court Id. S.Ct. “deliberately in- were and Webster Fond may be for explained liability imposed safety make clear that to her different” “when provide failure to safe conditions her Four- is based on 1983 claim by professional made is the decision due pro- substantive Amendment teenth accepted a from departure such substantial involun- conditions while right safe cess judgment, practice, or stan professional custody of a to the state tarily committed person that the dards as to demonstrate actor. actually the deci responsible did base Involuntarily patients committed 323, judgment.” Id. sion on such a a hospitals have Four mental health state then, 2452.4 created Youngberg, S.Ct. process right due to be Amendment teenth whereby hospital ad standard whether by hospital safe conditions provided patient’s ministrator has violated consti Romeo, administrators. In v. Youngberg rights by tutional whether determined 2452, 102 S.Ct. 457 U.S. from diverges the administrator’s conduct (1982),the Court was Supreme L.Ed.2d 28 that of re professional. a reasonable involuntarily committed an confronted with “Youngberg fer to this as the hospital in a state who al patient mental judgment distinguishing standard.” he hospital, at the had leged while this standard the “deliberate indiffer “by injured on numerous occasions been Eighth -in Amend ence” standard used the reactions of his own violence cases, punishment ment cruel and unusual him.” patient, Ro other residents “[p]ersons Court noted meo, sued three administrators involuntarily who been committed are failing appropriate procedures to institute entitled to more considerate treatment injuries they “knew, or prevent than crimi conditions of confinement receiving, have known” Romeo was should are nals whose conditions confinement rights under the thereby violating Romeo’s 321-22, designed punish.” Id. Noting added). Fourteenth Amendment. Id. (emphasis The Court S.Ct. 2452 security constitutes right personal “the approvingly Youngberg profes cited the liberty protected ‘historic interest’ sub County an sional standard Clause,” Lewis, Due stantively by Process n. Sacramento *8 it is 12, 1708, held cruel and unusual “[i]f Court that 140 1043 118 S.Ct. L.Ed.2d (1998), hold convicted criminals of a punishment noting to that combination “[t]he conditions, it must be unconstitu commitment and his patient’s involuntary unsafe involuntarily obliges confíne commit to the total on his custodians dependence tional punished government thought at all-in the to and make may not be take ted-—who 315-16, patient’s wel provision Id. at 102 reasonable for the unsafe conditions.” 5 (citations omitted). fare.” 2452 S.Ct. judg- directly requisite professional Although ture from the the issue was not before 4. it, ment.” Id. held district court the Court also that the testimony expert that should have admitted testimony may Youngberg was excluded because such 5. The dissent's formulation the misleading. professional judgment standard is [the been to whether adminis- have “relevant dissenting colleague, we According our depar- were a substantial trators'] decisions 1028 upon Youngberg, the Ninth Cir

Relying B. Violation Constitutional Right recognized Four repeatedly cuit has involuntarily right teenth Amendment light clearly of the established law safe patients to confinement committed hospital provide officials must safe Feinstein, Neely See 50 involuntarily pa- conditions. conditions for committed tients, (9th Cir.1995) (“A we now examine the 1502, circumstances F.3d 1507 mental hospital may under state officials be patient’s right personal security in the responsible held do failing to so. to which he or she is committed institution year established 1988 applied [the previously Youngberg violation].”); professional by judgment Neely, Flores standard alleged Galvez- 1507, 50 F.3d at a case with facts remark- se, 1352, v. Mee Maldonado 942 F.2d ably similar presented to those here. (9th Cir.1991) (describing Youngberg’s There, patient (Neely), a female who had “when holding as individual is in state allegedly by hospital been molested a staff custody, may acquire state constitutional (Terry), member sued state mental hospi- care”); duty to ensure individual’s safe Es tal Neely administrators and staff. named O’Connor, by tate Meredith v. Conners Feinstein, as defendants hospital su- Cir.1988) 1205, (9th (holding 846 F.2d perintendent; Hosley, the Director of patients Youngberg, under who Nursing; Murgo, the chairperson of the involuntarily been committed to a state committee assigned investigate prior ac- liberty mental hospital retain interests against Terry; Brown, cusations Therefore, safety). at the time the events building supervisor. Id. at 1506-07. Prior alleged place, in this case took it was clear Neely’s allegations, patients two other ly Webster, established that LaFond and had also alleged Terry had sexually officials, duty as state had a to exercise assaulted them. Id. at In response 1505. professional judgment provide con safe prior incidents, to both Feinstein convened ditions for Ammons and the other patients investigate committee to allegations and, times, CSTC. both the committee determined only should Youngberg. examine whether exer- Youngberg While does state that all, professional judgment cised cause, be- by public decisions pre- made official are Youngberg, "exercising pro- under matter, sumptively valid as an initial judgment fessional will shield a state case also makes clear that the method professional liability.” from presumption- which that is overcome is the standard, however, per- is not so application Youngberg professional requiring "professional judg- missive. In itself, is, judgment by assessing standard exercised, ment” be the Court made clear whether the actions of the meet judgment professionals depart must not 323, objective standard. Id. at 102 S.Ct. substantially "accepted professional words, Youngbergprofes- In other standards,”

judgment, practice, or 457 U.S. at sional standard does contain respect protect- 102 S.Ct. any presumption government in favor of offi- ing patient's right safely, id. at cials; instead, *9 the standard is the mecha- therefore, "any” judgment, S.Ct. Just 2452. we pre- nism assess whether the do; will judg- the official must exercise task, sumption has been Our overcome. comports objective ment that an with stan- therefore, apply Youngberg profes- is to the 322-23, (noting dard. Id. 102 S.Ct. 2452 sional standard to determine whether the that "pro- the courts must make certain that presumptive validity of and LaFond's Web- exercised"). judgment fessional in fact was ster’s conduct has been rebutted. This is Moreover, the dissent na- misconstrues the precisely opinion. what we do in this ture presumption of the articulated in ” Neely, 50 negligence.’ F.3d ing gross to the evidence substantiate was no “there O’Connor, at 1506. 846 F.2d at Terry.” (quoting Id. at 1507 against allegations concluded, added).6 1208) investigation (emphasis the second After reprimand however, issued a Feinstein this “con explained that further We in judgment” “very poor showing Terry for the is not indifference” standard scious where he was situations in himself placing stan indifference” same as the “deliberate Hosley Id. patients. female alone with cruel Eighth in Amendment used the dard Terry’s barring directive an issued oral ex context and punishment unusual women’s ward in the to work assignment pre-trial of alleged violations tended with female “in seclusion” one-to-one the Fourteenth rights under detainees’ this restric- Hosley later lifted patients. rejected Id. We therefore Amendment. Terry to work in tion, assigned and Brown applicable that the standard argument the It was Neely. with seclusion one-on-one required the “conscious indifference” Neely alleged Terry’s assault then that that the officials were to show plaintiff at 1506. Id. occurred. posed of the risk” “subjectively aware acknowledged first analysis, we In our “subjec although that a noting patient, the judgment Youngberg professional that the comported requirement tive awareness law as established standard served proscription Amendment’s Eighth with Id. alleged abuse. time of the at the punishment,” and unusual against cruel O’Connor, recognized 1507. to enforce requirement there is no such involving a case another F.2d at arising from the Fourteenth rights patient in a state-run harmed grievously patient Accordingly, Id. at 1508.7 Amendment. objective applied we hospital, mental “ Youngberg profes recognized that the we ‘to equated standard “necessarily is judgment standard sional a ordinary cases for tort required that added).8 (emphasis objective test.” Id. amount- an finding of conscious indifference al., (9th Grubbs, out, Cir. 630 F.3d 833 Health Services et points L.W. 6. As dissent 1996), (9th 2010), disap deliberate in proposition we Cir. for the F.3d negligence” “gross a proved requires plaintiff of the use of to show that the difference § 1983 action prison nurse's standard in facts from subjectively aware of official violation of her supervisors for could of substantial risk which an inference rights after an inmate process due substantive Tamas, however, interprets the be drawn. Neely's allegedly her. We noted attacked spe in the standard "deliberate indifference” negligence” was not "gross of the term use obligation toward the state’s context of cific decision, be limit necessary should to the children, holdings consistent foster with plaintiffs "in "captive” ed to the claims Tamas circuits. Id. 844-45. in other ‘profes miscarriage jured because Neely, or Youngberg, makes no reference [government] of a sional applicable addressing the standard any case ” official.’ Id. duty to ensure public hospital officials' Indeed, logical patients. it is safety of their Indeed, Neely that even our further notes duties governing the state’s standard jurisprudence Amendment Fourteenth differ respect would foster children stan- applies dard,” "deliberate indifference vis-a governing indiffer- actions "conscious the state's than the from that rather here, degree has never control applicable hospital patients, as ence” standard vis subjective aware- "required govern to have responsibility day-to-day officials deemed to be of harm order considerably ness of the risk latter is exerts ment over " (citation omit- ‘deliberately indifferent.' Id. Therefore, Neely the control higher. remains ted). purposes ling circuit for law of this case, inapposite. and Tamas of our recent Webster cite one 8. LaFond and *10 decisions, Social & Department Tamas of that, at the the not in put writing, time of directive she did We concluded actions, the in this unreasonably Feinstein, officials’ law hospital not act because “(1) patients circuit established supervisor, her not did instruct her to do right to in the have a constitutional be safe Additionally, so. Id. there no evi- was to which are commit state institution that Hosley dence was of the informed (2) ted, known in face of assaults, Terry’s prior evidence of sexual safety, patient to state officials threats which Feinstein reviewed. Id. had Hos- (or act) may act fail with not to conscious ley’s prior lack of awareness accusa- indifference, steps but take adequate must against Terry tions was to our relevant professional with accordance standards assessment of of the reasonableness her harm prevent occurring.”9 to Id. actions, although it was not the basis framework, to this we affirmed Pursuant qualifiedly finding immune. court’s im- qualified district denial Brown, building supervisor assigned munity ground for Feinstein on the that he ward, to the women’s was qualifiedly found summarily disregarded the risk that Ter- assigned Terry immune because he had to ry, hospital employee previously a accused only the women’s ward after restric- molestation, sexually of sexual would abuse light tion was lifted and in of a staff short- female patients. supported The evidence age. Id. We held that Brown not could finding that Feinstein failed to exhibit unreasonably. have been said to have acted “vigilance protecting safety fe- Id. patients, hospi- male and that reasonable sum, supervi- we held the lower-level tal official would done much more to qualifiedly sors immune due to com- their Terry the risk eliminate would sexual- pliance with hospital regulations and su- ly patients hospi- abuse female under the (to pervisory guidance and directives tal’s care.” Id. issued), extent such directives were Murgo, chairperson of the commit- because their conduct was reasonable investigate tee prior convened alle- light practical considerations. Feinstein gations against Terry, qualified- was found because, subject liability was found as ly immune. Id. at 1511. We reasoned the hospital, head of he failed act that, although the committee did not inter- protect patients the safety through ef- witnesses, view certain it did interview fectively guiding lower-level supervisors to required by regu- those witnesses safety posed by Terry. reduce risk lations. Id. Contrary assertions, to the dissent’s there who Hosley, informed the shift supervi- nothing contradictory is about this resolu- Terry sors that not be assigned should tion. the women’s ward or to one-on-one seclu- patients, Neely sion with female serve as quali- pre-exist- found fiedly immune. Although Id. did Hosley ing, clearly established law as to what 9. This reference to "known does threats” with conscious indifference. Such knowl- negate Neely's however, clear instruction edge, required is not demon- subjective required awareness of risk is not Accordingly, Neely strate violation. mere- context of this Fourteenth Amend- ly acknowledges that Feinstein was aware right. Hospital knowledge ment officials’ or should have aware been of the risk particular patient safety threats to cer- posed by Terry, speaks which to the actions tainly profession- relevant to the reasonable necessary discharge duty for him to his al standard their act in accordance stan- assessed, is, actions are to the determi- dards. nation whether the officials have acted *11 of the A. LaFond infringement supports conduct of involun rights Amendment Fourteenth Here, primary evidence that At the hospital patients. tarily committed (1) liability LaFond’s that she supports events, then, it was alleged of the time had in previously knew that Grant been and Web actions of LaFond that the clear a for sexual of female vestigated abuse ran if the Constitution ster violated yet she to continue patient allowed Grant profes objective Youngberg afoul cottage housing pa in a female working applied standard as judgment10 sional taking to steps tients without ensure Neely.11 repeated to given opportunities he was not pa these alone with one more of

be (2) tients; that she took no action V. increasing evi spite of and documented inappropriate relationship be facts of dence of the now determine whether We tween Ammons and Grant. case, most light as in a this construed Ammons, found to to could be favorable First, prior as to the accusation made by violation LaFond or Web- to a amount Grant, reflects that against record rights. of Ammons’s constitutional ster A repeatedly Resident stated that Grant words, whether we must determine her inappropriately, had touched but later if alleged, proved, are sufficient the facts allegations speaking recanted her when official’s jury finding that the support however, point, At no Res- Dr. Bacon. did departure was “such substantial conduct her testimony ident A recant to outside judgment, accepted That to Dr. investigators. she recanted to demonstrate practice, or standards as in a moment admit- Bacon when she was responsible actually did person about with tedly upset losing contact judgment.” the decision on such a Grant, very least, not base at the raises doubts as 2452. Youngberg, 457 U.S. at 102 S.Ct. conclusion that were CPS’s the accusations facts, respect to of allegations Despite with “unfounded.” these review We aware, permit- LaFond was LaFond separately. LaFond Webster Thus, our that courts nonetheless remains consistent with the dissent’s insistence precedent. prescribing managerial be- "have no business prop- more havior for mental institutions” is Neely regardless complexity, And this Youngberg erly directed at the decision in crystal Fein- clear conclusion that makes its immunity. qualified than to our denial safety, Neely’s failure to act to ensure stein’s has it business to Supreme Court made our specific account his failure to take into public hospital administra- assess whether Terry, sup- previous accusations alleged provide conditions tor’s failure safe port a violation of the standard. under gives to a constitutional violation rise conclusion, least, clearly This serves as Youngberg professional judgment stan- Thus, opinion's conclu- law. established juries It also made the business dard. remarkably respect to similar sion with facts violat- whether the standard has been decide here, analysis, legal if not is un- to those its ed. doubtedly put on notice sufficient to duty as to the contours her constitutional Anderson, goes great lengths to un- respect patient dissent safety. 11. The See Neely’s analysis and to necessarily obscure U.S. at 107 S.Ct. 3034. we colleague, As we dissenting it as established law. our do discredit Unlike Neely’s simply Neely opinion, disregard this recon- based on have discussed in feel free to ap- reasoning. myriad legal strength its standards own views of ciliation of our and will precedent are bound plied the context of the Fourteenth is, sure, faithfully apply it. complex, but it to be Amendment *12 working ted Grant to continue unsuper CSTC, mons and Grant to specifically asked that patients vised with the female Grant not permitted be to their be alone with points Ammons. Ammons out cottages, residential times in one-on-one is a community, CSTC small and that situations.12 that it LaFond declared was LaFond every had opportunity to become her general practice, when an accusation of aware of escalating impropriety be- unfounded, staff abuse was determined to Ammons, tween Grant and and to take supervisors instruct the to watch the staff action accordingly. apparently member more closely and counsel him failed to take affirmative steps to inform or her about high risk behavior. In herself of the CSTC, situation at even neither her nor her deposition declarations after Rutherford explicitly had warned her however, testimony, does LaFond state about the staffs respond failure to appro- that, accusation, after Resident A’s La- priately reports impropriety. sexual Fond supervisors instructed Grant’s facts, hold under these a fact- watch him closely provided more Grant finder could determine LaFond’s actions counseling any high about risk behav demonstrate a departure substantial ior. reasonable professional judgment. La- Fond was aware Grant Second, previous facility that LaFond was ly accused of sexually molesting a minor charged with overseeing contained over- patient. female The investigation conclud whelming signals information and ed that the accusations were unfounded Grant was pursuing improper relationships only because the unreliably accuser re with female patients and with Ammons canted. Neely, Under a jury could find specifically. Ammons flirted with Grant so that a administrator, reasonable exercising regularly extensively that CSTC staff professional judgment with respect pro frequently it, both in commented her viding conditions, safe would have taken files and fact, to Ammons herself. In Am- Resident A’s allegation into account when mons’s file contained 188 references to her assigning and supervising staff members improper staff, interactions with male as in cottages where patients female resided. well as about her feelings documentation While LaFond had no discipline cause to Grant in particular. toward Ammons and Grant, because he had been exonerated of Ramsey exchanged Grant, love letters with charge, molestation she certainly had posters Grant, made pic- and received reason, light of her duties with respect Grant, tures of they “plastered” on safety patients, to manage “entire sections on the walls of [their] and monitor his duties more carefully. rooms” where highly were visible to Instead, LaFond allowed gain Grant any staff member. Notably, Ammons’s unfettered and unmonitored access to the foster mother repeatedly voiced her con- residents, female and to spend time with cerns about the relationship between Am- them on a one-on-one basis.13 12. We note that LaFond's awareness of the fully 13. We acknowledge that Grant was ex- prior accusations sexual abuse onerated as an matter. certainly official This speaks Grant mean, to the however, that, assessment of whether does not practical as a matter, LaFond acted in objective accordance with his one-on-one seclusion with minor professional standards, is, to what a patients rea- female way pose did not in a risk sonable official do safety Indeed, would to ensure the safety. to their subsequent Grant’s patients noting Ammons, CSTC. sexual molestation Terry’s like awareness, imply we do subjective Neely, only molestation of confirms this. We particular awareness of the required risk accordingly recognize jury that a could con- IV.B, demonstrate a violation. See Part su- clude that a reasonable administra- pra. tor, performing his or her constitutional facility. A by simply walking through the compellingly, LaFond more Even additionally find that a jury could reason practically were staff of the CSTC the rest *13 administrator, exercising pro hospital able and signs with indications inundated judgment, would have taken fessional in an engaged were and Grant Ammons that the staff who worked steps to ensure Ammons’s relationship. inappropriate closely appreciated with serious Grant staff, male and her lack of boundaries brought the situation and these ness of particular, with Grant preoccupation attention so signs to the administrator’s Her in her files. documented were well necessary steps to that she take the could was evi- relationship with Grant particular abusing position. his prevent Grant from on display and the by her behavior denced steps taken to LaFond should have at least room, that her so much the wall of her so specific of was informed ensure she and patients to other apparent was crush by parents such as concerns voiced Tien every had reason LaFond staff members. haara so she could look into the mat relationship Grant between to monitor ter further.14 of light Ammons in Rutherford’s and repeatedly and Tienhaara’s warnings responsibility “bears the LaFond concerns. voiced taking adequate steps for to ensure that sub of LaFond was safety whether of Regardless subordinates” maintain the [her] jury signals, of these aware her orders jectively patients pursuant to hospital because, CSTC, that a reasonable of could conclude as the head instructions au position ultimately in LaFond’s of ac LaFond “is one who is administrator previous safety patients.” accusa of the thority, knowing countable for taking of Neely, and of 50 at 1510. Instead against Grant Rutherford’s F.3d tions subordinates steps steps taken to be to ensure that her ade would have warning, relationships happening quately was monitored be aware of what come patients, LaFond took lit- file or tween staff and through a basic review Ammons’s primari- (noting VII safety, 126 S.Ct. that “Title regard patient would have 2405 duty with race-based, ly protect pa- ... victims of protect vulnerable female seeks to more to done ethnic-based, religion-based, gender-based or tients. discrimination’’). argument, Contrary we do to the dissent’s requires Due Process Clause that the not hold much of the distinction 14. makes dissent any take action that administrators to inaction, arguing between action not even the law otherwise forbids. do LaFond’s there exists "infinite list of inac- an administrator disclose suggest that the must clarify, To because tions toward Ammons.” previous of sexual accusations misconduct involuntarily clear makes name party, include the accused’s right patients have an affirmative committed database, impose any any public ad safety, a state conditions offi- reasonable consequence of the accusa as result verse inaction, speaks it to the extent that cial's Thus, discussion of various the dissent’s tion. conditions, provide such his or her failure to holding in Hum Washington and our statutes apply- precisely we must evaluate is what County Angeles, 554 F.3d 1170 phries v. Los Youngberg,457 U.S. at ing this See standard. Cir.2009), (9th part rev’d in on other 320, (“The question then ... 2452 102 S.Ct. — 447, -, 178 grounds, U.S. 131 S.Ct. safety is whether the ... lack absolute such (2010), is irrelevant. The dissent 460 L.Ed.2d added)). process.” (emphasis due as to violate invokes, Burlington puzzlingly, Northern also Because, agrees, White, the dissent record as S.Ct. steps (2006), that LaFond took contains no evidence a Title retaliation VII L.Ed.2d impropriety stay sexual informed We do not see how standard case. we construe patients, employment in the between staff retaliatory adverse actions deficiency Ammons's favor. Id. at is relevant here. VII context Title erally prevent no action whatsoever of Ammons and the other patients female engaging Grant from in an rela- abusive support finding that she failed to exer tionship with Ammons. Whether because professional judgment,15 cise thereby fully appreciate a failure to ignorance or violated Fourteenth Amendment.16 situation, the seriousness of the Indeed, we similarity note the between relationship go allowed this on for Neely. evidence here and that in Like months, unmonitored, unchecked and superintendent Feinstein in Neely, La- not until Ammons returned to her *14 Fond was allegations aware that of sexual family foster and continued to have contact abuse had brought against been one of the with Grant that action taken. We hospital that, staff. And in Neely, as alleged pro- hold under the facts and these duced, apparent allegations LaFond’s triggered inaction and an investigation poor supervision respect with safety to the the staff member that determined that the 15. The reaching dissent faults us for facility, this con- within grossly inadequate. the were reciting precisely without "accept- clusion the expert points The monitoring out that no or professional judgment, practice, ed safeguards or stan- put place, were and Grant was dards” for the administration of residential allowed patients be to alone with female youths. health facilities for If there existed responsible. whom he expert was not This "golden professional such a code” of actions, conduct further notes number of after taken actions, against which to measure LaFond’s light, Ammons’s molestation came to all, jury there would be no need for a as we should been have taken after Resident A's judges conclusively could determine whether degree She accusations. finds the of inaction accept, LaFond is liable. We the as dissent facility "astounding” at the and "hard to fath- recognizes, repeatedly that a appli- conclusive situation, professional om” in a and she con- Youngberg cation of the will standard indeed cludes "grossly that LaFond was ex- and facts, require expert testimony, additional tremely negligent.” agree We do not the a host of other evidence in order to definitive- testimony dissent that this "should be afford- ly professional determine what a reasonable weight.” ed minimal See Nolan v. Col- Heald done, is, would the standard 1148, lege, (9th Cir.2009) (it 551 F.3d 1154 is conclusively which to measure LaFond’s ac- improper weigh summary evidence on Youngberg, tions. 457 U.S. at n. 323 102 judgment). (noting expert S.Ct. 2452 testimony is public employee relevant to whether a failed holding, In so we hold LaFond accounta- requisite professional exercise the judg- respect ble with manage to her own failure to ment). precisely jury This is the that a role supervise not, employees. her We do as plays. suggests, the liability dissent create why respondeat superior. This is also an basis summary award of It is well supervisor early stage. may unwarranted at established that a be held dissent, us, Ironically, the like liable for a rights cannot articu- constitutional violation late the code of neglect based on or failing conduct for ad- his her own facilities, properly superintend ministrators of residential health his or her subordinate’s yet conclusively dissent somehow Iqbal, de- duties. Ashcroft that, law, 1937, 1948, termines as matter of (2009). LaFond did S.Ct. 173 L.Ed.2d 868 In so, depart not itself, from doing such code. the Court held that a failure the dissent fails to make all appropriate inferences procedures institute give could favor, all construe facts in Ammons's as we liability rise to under the Fourteenth Amend- 322-23, must. ment. 457 U.S. at 102 S.Ct. 2452. Finally, ignores testimony Co., dissent Navajo See also Simmons v. 609 F.3d multiple experts (9th Cir.2010) in the record ("To us stat- before sum- survive ing performance that LaFond’s mary judgment, well below [plaintiffs] fell must therefore law, required of care policies, standard adduce supervisors] that [the evidence them- procedures, practice. expert reports One selves unconstitutionally, acted or to act failed professional opinion investigation that the not that (emphasis some subordinate did.” accusation, added)). of Resident A’s and its resolution it, the dissent suggests, In both does as conclusive allegations were credible. any particular resulted administrative cases, plaintiff ly prescribe harm to the only failure to hold supposing conduct.18 We from administrator’s true, for steps allegations are reason meaningful prevent Ammons’s take LaFond, from interact jury staff member could conclude that like merly accused able In Feinstein, patients. with female “a ing one-on-one demonstrated substantial de accepted these facts sufficient Neely, professional judg we found parture jury’s determination support a reasonable amounts ment” that to a violation Am profes failed to exercise Feinstein Fourteenth mons’s established in this case record judgment. sional right safety during her in Amendment of such a more evidence presents even hospital. voluntary commitment to a state LaFond, as it addi part conclude, therefore, failure on must re a claim that LaFond tionally supports qualified immunity. entitled to is not unreasonably ig ignorant of mained *15 B. Webster that overwhelming evidence

nored the to his flagrantly continued abuse Grant next consider whether reprimand Feinstein position.17 Whereas against alleged support facts a Webster Hosley poor judgment and Terry ed against Fourteenth Amendment claim him. duties, La- Terry’s on placed restrictions facts pertinent alleged against Web changes respect to made no with Fond Webster, following. are the as Di ster managing Grant. Nursing January April to rector of from “closer” to was Ammons while Grant matter, Young- we that a final note

As molesting her LaFond. than was As berg professional judgment articulated three during CEO CSTC the last weeks for the proper instruction standard as residence, had of Ammons’s ac that Webster jury; opinion merely recognizes our Ammons, cess to information about includ in this case should the ultimate decision ing indicating her intake jury. holding a does assessment go likewise Our LaFond; particularly liability upon nor she was vulnerable sexual impose not defeating qualified immunity pointing out in into 17. chastises us for burden The dissent proving support factual for Ammons's in case. The dissent's this additional her burden case, claim, accusation, Neely, arguing position, no even not and indeed its entire is reasoning. response in supports fundamentally our We note premised on a incorrect notion that, Neely, LaFond’s failure to consid- qualified immunily equivalent under denial of is previous against Grant er accusations a conclusive determination that the Consti- qualified supports alone our conclusion has been Under such tution violated. incor- Nonetheless, we immunity is unwarranted. logic, deny qualified we dare rect not immu- sug- blindly ignore the facts do not additional we are nity unless that constitutional certain gesting performance. in deficiencies LaFond’s proved. liability will be bearing pretend To that these facts have no qualified immunity, denial of as that Our in jury inquiry could the relevant —whether however, Neely, prediction as makes no us, in Ammons’s favor —would render decide jury plaintiff's will in the whether find favor. it, puts “unreflective as the dissent simply recognizes decision that whether Our naive.” any wrongdo- should be LaFond absolved ing jury way, for a decide. Put another being ''unreflec- is accuses us of The dissent judgment in we hold no more than that Am- this While we naive” in assessment. tive and may, legally foreclosed. dispute public mons’s favor not do officials trials, interpret public Whether officials choose avoid tailor their behavior order to decisions, opinion something as more than this is immunity we will not qualified our entirely up to them. the basis to transform Ammons’s use this as Ammons neither al to similar Importantly, applied abuse. facts evidence leges nor introduces Neely. Taking all the facts in a light most CSTC, during time Webster Ammons’s Ammons, favorable to we hold that allegations Resident A or knew of the allegations against and evidence subsequent investigation of Grant.19 sufficiently support constitutional viola- tion that conclude, qualified immunity, defeats while taking even all We cannot true, jury against as that a those do not. allegations Ammons’s Webster The dis- could find that demonstrated a Webster trict summary judgment court’s denial of departure pro- substantial reasonable as to LaFond is AFFIRMED. The dis- spent He judgment. approxi- fessional summary trict court’s denial of mately days as eighteen CEO CSTC as to Webster is REVERSED. The case stay, during Ammons’s which would not is REMANDED for further proceedings with provided him reasonable and opinion. consistent with this of, apprised sufficient time to become AFFIRMED IN PART AND RE- to, take meaningful respect action IN VERSED PART. situation between Grant and Ammons. Moreover, during his time as Director of BYBEE, Judge, concurring Circuit Nursing, there indication that is no he was part dissenting part: previous allegations aware of Grant Borneo, such that a reasonable In Youngberg v. the Supreme position *16 in his would have a reason to Court involuntarily held that those com closely or personally monitor Grant’s be- mitted in hospitals state-run mental superiors havior or to his alert as to “rights ... to reasonable conditions of impropriety. Hosley, As Director 307, safety.” 321, 102 S.Ct. Nursing Neely, of a “absence (1982). 73 L.Ed.2d 28 Recognizing that sufficiently strong directive from [LaFond] “an protect institution cannot its residents understate, members, served to to all staff violence,” danger all the Court posed the risk that pa- [Grant] to female found only that “the requires Constitution tients.” 50 F.3d at 1511. The record con- that the profes courts make certain that tains no indication that disregard- Webster sional judgment in fact was exercised.” ed, unreasonably ignorant of, remained (citation 320-21, Id. at 102 S.Ct. 2452 professional failed to exercise reasonable omitted). quotation marks Despite the judgment with respect Ammons’s safe- Court’s instruction that is not appro “[i]t ty. Therefore, the alleged because facts priate for the to specify courts which of are insufficient to maintain a constitutional professionally several acceptable choices him, claim against Webster is entitled to made,” should have been id. at qualified immunity. majority S.Ct. pre embarks on cisely quest, defining a new code of VI. conduct for hospital mental health adminis alleged Ammons has the violation of her trators casting “professional personnel clearly established constitutional right ... the shadow of an action [into] for during safe involuntary conditions damages,” 325, 102 id. at S.Ct. 2452. hospital. commitment to a state The con- only tours of this Not right clearly have been does the author a estab- objective conduct, lished test set in code of forth model it finds application 19. We Youngbergprofessional reiterate that Webster’s lack of knowl- determinative, edge, while not is relevant to standard. constitutionally undisputed to be both com- it is its code LaFond did not have Indeed, clearly established. pelled and subjective knowledge improper of Grant’s majority’s code: under attentions to Ammons. Therefore La- (cid:127) administrator [must] reasonable fact, “[a] liability Fond’s ability court’s —in allegation^] ... take into [resident] § to entertain a 1983 suit her— assigning supervis- when

account only if can responsible exists she be held cottages where ing staff members allegedly unconstitutional actions of residef],” patients female even when her subordinates. allegations investigat- those have been “unfounded,”

ed and determined to be A 1032-33; Maj. Op. at principle Fundamental to the of quali- (cid:127) personally administrators must under- immunity fied is the notion that an individ- [patients’] take “a basic review of ual constitutionally will not be held liable— patients’ and monitor fíle[s]” bedroom subject cannot even be any- suit—for through decorations on “walk[s] thing but his oum actions that are viola- [hospital] facility,” signs to catch tion of established constitutional burgeoning relationships and illicit be- § liability law. This is because can- staff, patients tween id. at 1033— solely not be established on a theory of 34; and respondeat superior. As Supreme (cid:127) strictly administrators will be held lia- recently Court reminded us: “vicarious lia- part by ble for harm caused in ... bility inapplicable suits”; is employees’ their failures to communi- §a 1983 suit ... “[i]n masters do not them, including cate with a failure to servants”; answer for the torts their “specific make administrators aware of liability, vicarious “[a]bsent each Gov- by parents,” concerns voiced id. at only ernment official ... liable for his or (“[A] 1032-34 reasonable ad- her own misconduct.” v. Iqbal, Ashcroft ... ministrator would have taken *17 662, 1937, 1948-49, 556 U.S. 129 S.Ct. 173 steps to ensure that the staff ... (2009). L.Ed.2d 868 long We have held brought [warning] signs to the admin- See, e.g., the same. Preschooler II v. istrator’s attention so that she could Trs., County Clark Bd. 479 Sch. F.3d necessary steps take the prevent (9th Cir.2007); 1175, 1183 Menotti v. City employee] abusing posi- from his [an (9th Seattle, 1113, 409 F.3d 1149 Cir. added)). (emphasis tion.” List, 2005); 1040, Taylor v. 880 F.2d unjust, These new un mandates are (9th Cir.1989). founded, and unworkable. None is re necessary The standard establish by the quired Constitution established by § a supervisor 1983 violation is no dif- by reasons, our For I cases. these re necessary ferent than the standard to es- spectfully dissent as LaFond.1 by tablish a violation

I government official: “a plaintiff must plead that each Government-official defen- majority Let’s be clear—neither the nor dant, through the oum individual appellee per- claims that LaFond was official’s actions, sonally inappropriate aware of an relation- has violated the Constitution.” added). ship fact, between Grant and Ammons. In Iqbal, (emphasis 129 S.Ct. at 1948 portion I concur in of the as to Webster. opinion reversing summary the denial of instance, Supreme Supreme emphasized Court Court the lati Iqbal, For plaintiff for the held that it was insufficient tude that must be allowed to mental health supervisor defendant had allege professionals under Fourteenth knowledge of his subordinate’s dis- “mere by explaining Young- Amendment that the at 1949. As criminatory purpose]!]” Id. berg professional judgment standard is “In the context of explained: the Court opportunity play an for lower courts to there is a violation of determining whether Monday morning quarterback: “It is not to overcome clearly right established [sic] appropriate specify for the courts to immunity, purpose rather than qualified professionally acceptable of several choices impose ... knowledge required liabil- should have been made.” Id. To ensure ity on the subordinate for unconstitutional that courts would not use the discrimination; the same holds true for an professional judgment categor standard to charged arising official with violations ize as constitutional violations profes responsibil- superintendent from his or her sional decision with which did not ities.” Id. agree, the Court established a presump case, provision constitutional this professionals: tion in of the favor “[D]eci at issue is the Due Process Clause of the by appropriate professional sions made The Supreme Fourteenth Amendment. presumption are entitled to a of correct Court first articulated standard for ness.” Id. at 102 S.Ct. 2452. The involuntarily com proving violations that a explained pro Court mental health bodily safety in rights Young mitted’s fessional presump deserves favorable Romeo, berg v. 102 S.Ct. because, alone, acting tion “may she have (1982). 2452, 73 L.Ed.2d 28 The Court respect to make with num decisions to a involuntarily found that those committed widely varying ber of residents with needs hospitals “rights in state-run mental problems in the course of normal safety” ... to reasonable conditions but administrators, day. The particular respect rights, those the mental ly professional personnel, should not be hospital employees only need exercise required to make each decision in the “professional judgment.” Id. damages.” an action shadow Id. “[Liability S.Ct. 2452. The Court said: added). 324-25, (emphasis 102 S.Ct. 2452 may only imposed be when the decision The Court did not want state men is such substantial de tal professionals health to act in fear of the parture accepted professional judg lay judgment pronounced great cer *18 — ment, practice, or standards as to demon all tainty clarity and with the that hind person responsible actually strate that the sight affords —of the courts. See Ashcroft did not judg base the decision on such a al-Kidd, U.S. -, 2074, v. 563 131 S.Ct. 323, ment.” Id. at 102 2452. S.Ct. (2011) 2085, (“Qualified 179 L.Ed.2d 1149 words, only “[T]he Constitution re immunity gives government officials quires that the courts make certain that breathing room to make reasonable but professional judgment in fact was exer judgments open legal mistaken about (citation 321, cised.” Id. at 102 2452 S.Ct. questions.”). professional Hence a judg omitted). reason, For Youngberg ment standard. professional judgment standard is less a “professional judgment” standard than it is B “any an professional judgment” standard it Applying Iqbal Youngberg, is clear because exercising any professional judg ment that Ammons cannot establish that La- hospital profession will shield a state § al from liability. rights. 1983 Fond violated her constitutional 2452).2 majori But we will scour the purposes, “decisions S.Ct. For constitutional ty opinion in vain for of what pre- are entitled to a evidence made [LaFond] “accepted professional Youngberg, judg 457 constitutes sumption of correctness.” ment, or 324, practice, In order to standards” the admin 102 S.Ct. 2452. U.S. action, must al- istration of a residential mental health fa a cause of Ammons state cility youths. There is no evidence facts that LaFond’s own lege sufficient [‘such majority that the has considered or read Ammons were sub- actions toward Instead, majority such accepted profes- from standards. departure stantial simply up.3 majority or standards as has made them The judgment, practice, sional actually ipse did has its own dixit for the mistaken [LaFond] to demonstrate judgment of health judg- professionals.4 on such a mental decision[s] not base[her] 2452. She ment.” Id. S.Ct. Even if LaFond violated Ammons’s con In an failed to do so. absence has right stitutional Fourteenth Amendment evidence, we do not leave it to a sufficient process, substantive due she cannot be opinion of the admin- jury to offer its own subject to for that suit violation unless the of the institution —we find that istration gave “state of the law in [2003] [LaFond] LaFond wins. warning fair alleged treatment [her] majority Hope The too recites these stan- was unconstitutional.” [Ammons] Pelzer, dards, 730, 741, 122 not believe them. It but does S.Ct. (2002). professional 153 L.Ed.2d 666 If gives lipserviee majority stan- identify cannot component professional dards but then even stan decisions, entirely judging rests its decision on its own non- dards for LaFond’s how judgment. majority begin duti- can we to think that professional the law was so fully profes- “beyond states that “the debate” that LaFond “would have depart substantially must not from doing sionals understood what is vio [s]he al-Kidd, ‘accepted professional judgment, lates that practice, [law]”? 563 U.S. at ” (internal standards,’ -, Maj. Op. at n. 5 quotation or 1027-28 131 S.Ct. omitted). (quoting Youngberg, explain 457 U.S. at 102 and citation As I in the concedes, majority though majority 2.The makes it sound as As the there is no "such 'golden Youngbergrequires hospital professional code’ of [ ] administrators to conduct according which to measure professional act LaFond’s actions.” standards Maj. Op. majority at 1034 n. 15. I liability. Young- think risk This is not what code; Rather, supplied missing simply has berg requires. Supreme as the Court noted, majority jury gets up. make it claims appropriate "the standard was wheth- way, profes- Either there is no such code of er the defendants’ conduct was such a sub- way, majority judgment; sional either departure accepted professional stantial wrong. judgment, practice, or standards in the care [patients] and treatment of as to demonstrate did their [administrators] that the not base "Ironically, 4. The writes: the dis- judgment.” sent, us, conduct like cannot articulate the code of *19 Youngberg, U.S. at 102 S.Ct. 2452 professional conduct for administrators of omitted) added). (emphasis (quotation facilities, marks yet residential health the dissent require hospital that, The Constitution does not conclusively a somehow determines as industry-set law, administrators to toe some line. depart matter of LaFond did not from Rather, Court, per Supreme as the Consti- any Maj. Op. such code.” at 1034 n. 15. The tution administrators room to professional allows absence of standard means "depart” professional judg- prevails precisely act—even to from LaFond what it —that ment, long practice, by as standards —as means that "decisions made are [LaFond] depart profes- presumption those actions do not so no to a of correctness.” entitled Youngberg, 102 S.Ct. 2452. sional was exercised. See id. sections, anything escalating impropriety employ it is but clear between” following (3) id.; violated estab- that LaFond’s decisions patients, ees and LaFond lished law. failed to that she was ensure informed “of specific by parents,” concerns voiced id. at II 1033. These “failures” deserve close in apply that it I observe first is difficult to spection, both because LaFond will now professional judgment stan- personal have to endure the and financial to LaFond’s actions towards Ammons dard costs of trial because of them and be record, because, apart according to the cause are now statements of constitu about the making general decisions law, all applicable tional to mental health others) (and facility in which Ammons I administrators the Ninth Circuit.6 lived, LaFond did not take actions failing discuss each turn. Therefore, concerning Ammons. to find eligible violating LaFond for suit for Am- rights, constitutional we have to find

mons’ A that LaFond’s inactions toward Ammons majority identifies LaFond’s disre-

were unconstitutional. gard past allegations against Grant exactly knowing begin Not how to ana as her first constitutional failure. As the lyzing constitutionality of an infinite majority explains, “LaFond was aware list of LaFond’s inactions towards Am previously that Grant had been accused of mons, majority opinion.5 I turn to the sexually molesting pa- a minor female Sifting through analysis, its it becomes administrator, tient. ... A reasonable clear that the identified three of exercising professional judgment with re- (1) LaFond’s inactions as unconstitutional: conditions, spect to providing would LaFond failed to ... into account” “take[ ] safe have taken allegation Resident A’s into past allegations against Grant when assigning account when supervising “assign[ed] supervised] she staff (2) members,” Maj. 1032; cottages members in where Op. at staff female (em- personally patients Maj. patient’s Op. failed review each resided.” at 1032 file, added). in an phasis effort to “become aware of the (2011). imply impact I do not mean to that a state official’s L.Ed.2d 1118 Such on future liability could consequence: inactions never lead to under behavior is not an unintended Maj. Op. merely "[T]hey rulings self-consciously designed 1983. See at 1033 n. 14. I are that, point produce by establishing mean to out without this effect refer- control- ling preventing law and ences to standards or norms to invocations of immu- guide nity analysis, majority’s in later cases.” Id. its list of La- apparently Fond's unconstitutional inactions Accordingly, routinely require courts state legal grapeshot. reads like officials to act in accordance with the state- spelled ments of constitutional law out in majority’s finding 6. The assertion La- previous appellate opinions denying qualified protected qualified immunity, Fond not fact, immunity. majority's opinion In "conclusively prescribed] any partic- has not According majori- here is such case. to the conduct,” Maj. Op. Feinstein, ular administrative ty’s analysis, Neely own without (9th Cir.1995), is unreflective and naive. As the Su- 50 F.3d 1502 LaFond would us, preme recently rulings Court liability. Maj. reminded Op. be free from See 1030- qualified immunity significant "have a Neely, goes cases 31. Because of she to trial. future, public professionals future on the effect conduct of officials mental health can policies *20 government ignore peril. ... and the of the units Ammons at their The conse- Greene, they belong.” ruling quences majority’s Camreta v. here could -, 2020, 2030, hardly 563 U.S. 131 S.Ct. be more certain. First, point requires “any let me out that this is an law ... employee of the application Youngberg pro- incorrect department social and health [of services] If judgment standard. the ma- fessional ... [who] has reasonable cause to believe jority properly applying pro- had been that a child ... has suffered abuse shall standard, majority fessional incident, report such or cause a report to have asked if LaFond’s decision to would made, proper be to the law enforcement employment assignments irrespec- make agency or department to the social [of earlier, allegations years two tive health services].” Wash. Rev.Code had been determined to be unfounded was 26.44.030(l)(a) added). (emphasis As the professional judg- a decision based her Study CEO the Child and Treatment Youngberg, ment. (“CSTC”), Center LaFond was an employ (“[T]he only S.Ct. 2452 Constitution re- ee of the Washington Department State quires that the courts make certain that (“DSHS”), Social and Health Services professional judgment in fact was exer- responsible she was employees (citation omitted)). cised.” the absence obligation. under the same When Resi evidence, contrary majority of clear dent A came allegations forward with should have held that LaFond’s decision her, sexually Grant had abused allega indefinitely not to consider the unfounded promptly reported tions were to Child Pro allegations against “presump- Grant (“CPS”), tective Services required by as is tively valid.” Id. at 102 S.Ct. 2452. 26.44.030(l)(a). Wash. Rev.Code At that majority things. The did neither of these point, CPS conducted its own investiga Instead, majority “any concluded that tion, time, during which LaFond ordered reasonable administrator” would have con- that Grant not have contact with female allegations against sidered the unfounded residents. LaFond did not interfere with Grant —or unfounded but serious alle- investigation, but let CPS interview gations against any employee made —in victim, witnesses, psy and the victim’s I perpetuity. disagree couldn’t more. It chologist. interviews, After those LaFond “any is not at all clear to me that reason- treating psychol was told Resident A’s able would—or administrator” should—(cid:127) ogist allegations that she had recanted her allegations against take into account an Grant, against passed employee making assignments when con- Notably, information on to CPS. CPS did cerning that employee, especially when immediately investigation; close its in allegations those are “unfounded.” Nor is stead, it Only interviewed Grant. then did it clear that an administrator even could investigation close the conclude make an employee decisions about based allegations were “unfounded” because allegations against on unfounded that em- “it extremely unlikely would have been ployee. could have occurred as stated.”7 case, In this LaFond handled the first investigation Once CPS closed its allegations against exactly set of Grant as Grant, required Washington formally she was to do. State cleared LaFond did not rely professional judgment makes much of the fact that tied to on CPS's person- investigations LaFond knew that Resident A did not about when are closed and alle- ally allegations Maj. gations might recant her to CPS. See unfounded. While it be under- Op. at question 1031-32. But CPS itself knew that standable if LaFond still had some personally Resident A did not recant her alle- about Grant even after close of the investi- CPS, gations gation, decided still to interview it cannot be the case that the Constitu- Grant, requires suspicions, and then closed case because the tion that she harbor such allegations were unfounded. LaFond enti- much less that she take action him. *21 required allega A’s unfounded Clause LaFond to do what she consider Resident by Washington forbidden to do law.8 decisions making employment tions Although this is beside the about Grant. on the Ninth are well Circuit aware standard point perils and heartache that can come —because analy a reasonableness not call for does by dogged when' individuals are accusa to me. La- seems reasonable sis—this tions from which have been cleared. required to continue to con Humphries Fond was v. County Angeles, Los (9th Cir.2009), allegations against sider the unfounded 554 F.3d reversed in — law, -, any Washington regu part grounds by on other U.S. by Grant state (2010), L.Ed.2d 460 lation, 131 S.Ct. we why I see La- procedure. or can’t recognized that this kind of unshakable Fond is under the Due Process liable by can pursuit past false accusations be a of the Fourteenth Amendment for Clause “nightmare.” Id. at 1180. The facts of acting consistently with state law. See Humphries bring nightmare this to life. Portland, City v. 33 F.3d Grossman Humphries The parents falsely were ac (9th Cir.1994). 1200, 1209 child, cused of abuse trig rebellious Nor, fact, might LaFond have been gering their arrests and the removal of allegations allowed to consider unfounded remaining their children. Id. at 1175. Af Grant, against doing might as so have ter the state dismissed the criminal case Washington complicated violated State’s them, against the Humphries petitioned scheme, government employment relief, for further and the criminal court (1) includes at least a Fourteenth Amend “factually found them innocent” of the process property right ment due some charges and ordered the arrest records employment civil service and the attend destroyed. juvenile sealed and Id. The protections, ant constitutional see Fuller court likewise dismissed as “not all true” Employment Dep’t Sec. the State dependency petition against counts Wash., Wash.App. 762 P.2d 367 Humphries thought they’d them. Id. The (2) (1988); a statute requiring the destruc efforts, despite been cleared. But their tion of “information relating employee pursuant law, to state their names alleged misconduct or misconduct” situ were listed in a state database “known ations where “such information de [was] abusers,” suspected or child which a wide termined to false” or “where the be em variety of organizations including govern — ployee fully has been exonerated of agencies, ment employers, law enforce wrongdoing,” Wash. Rev.Code entities, public private ment and other (3) 41.06.450(l)(a); bargain collective or, groups had access to in some —either ing agreements may place limits on cases, required were to consult. Id. at ability CSTC to discipline added). administrators’ (emphasis 1175-76 The Hum psychiatric child care counselors. If the phries tried to have their names removed correct, majority database, the Due Process from the procedure but no such majority responds point by say- may keep to this trators have to lists of individuals ing, suggest "We do not ... that the adminis- whom unfounded accusations were previous closely employ- trator must disclose accusations of made—so as to monitor the (as party, sexual misconduct patients include ees' future interactions with re- database, any public quired by majority) comply accused’s name on this —but (at law, impose any consequence Washington) adverse as a re- with least state those Maj. Op. might sult of the accusation.” at 1032-33 lists have to remain secret and unwrit- rebuttal, accept n. 13. If we we then ten. The is either blind to or com- accepted reality in which I adminis- fortable this future. am not. *22 (“While California, in they so sued the at 1032 LaFond had no cause to in existed Grant, courts, discipline he had been claiming that maintenance because ex federal charge, the Due onerated of the molestation she database violated of the state reason, certainly light had in of her the Fourteenth Amend- duties Process Clause of respect safety patients, are with to the of her “identified individuals ment because manage challenge and monitor his duties more given opportunity not a fair added)); carefully.” (emphases at 1176. id. n. allegations against them.” Id. (“We right fully acknowledge inabil- that Grant was they held that were —their in exonerated as an official matter ... ity challenge listing their the data- [but] pro- hospital due a reasonable administrator ... procedural base “violatefd] the[ir] part protect at because would have done more to vulnera rights,” cess id. ... great being patients.”).9 “there human cost ble female Viewed is abuser,” light, majority opinion, falsely being accused of child man ... prompt “protect[ ] which should us to dates that state administrators al calumny” ways forget citizens such “with remember and never even passion same allegations against hospital [we] condemn[] unfounded acts,” unreasonable, child abuser for his atrocious id. employees, only is not it is 1194. manifestly unjust and inconsistent with in Humphries.10 our decision Humphries,

In light of our decision plainly than ironic—it is inconsis- is more B tent —that we would hold that the Due According majority, to the LaFond’s hospi- requires Process Clause state second unconstitutional inaction was her previ- tal administrators do what we have steps “take[] failure to to become aware ously prohib- held the Due Process Clause signs of’ the inappropriate Grant’s at- doing. Compare its state actors from id. “through tentions to Ammons a basic re- (“the have an Humphries interest by simply view of Ammons’s file or walk- ... if being stigmatized in not have ing through facility.” Maj. Op. underlying the re- not committed acts holding, majority again 1033. so ports [T]hey pur- .... have an interest applying Youngberg’s profes- erred ... suing employment securing judgment Young- sional or the standard appropriate working licenses for with chil- berg in favor of LaFond. presumption having subject dren without to be to an Instead, delays, majority pulled this consti- investigation, possi- additional benefit....”) Maj. out of its hat. Op. responsibility ble denial of a tutional How database, majority’s pro- public impose any 9. The confident constitutional or adverse conse- are the more fo*- Maj. nouncements all remarkable quence aas result of the accusation." any the fact that we do not know of the actors Op. at 1032-33 n. 13. It is not at all clear to investigators, here: We do not know the CPS assigning me that Grant to a different ward— methods; reputation LaFond and their majority requiring, what the see id. at 1031- staff; difficulty we have or Grant. Yet no employ- 32—would not have been an adverse finding relying profes- that LaFond on CPS’s action, might ment for which LaFond departure sional substantial Burlington opened N. & herself to suit. See accepted professional judg- from her own White, 53, 70-71, Ry. Fe Co. v. Santa ment. (2006) (find- 126 S.Ct. 165 L.Ed.2d 345 duties, ing reassignment even to a unpersuaded by majority’s point I am job description, position with the same can be Humphries implicated is not because the adverse”); "materially Humphries, 554 F.3d requiring hospital is not administra- at 1201-02. tors to "include the accused's name on post performance or evidence hoc—the of such admin say, precedent without can it istrators, testimony support all in the name of the Due Pro *23 expert or kind, requires that the Constitution cess Clause.11 Am- personally at LaFond have looked complexity This case demonstrates the personally through walk mons’s file? Or majority’s professional new code of Ammons’s room to ob- cottage into notes, majority conduct. As the CSTC is a Notably, her wall decorations? serve community, Maj. Op. at “small” see case, statute, majority does not cite residents, housing sixty-four a maximum of custom, policy or regulation, DSHS CSTC residents, but to serve these CSTC has a that LaFond industry expectation per- or complicated multilayered organization- sonally pa- files or monitor patient review al Although structure. record does majority tient room decor. Nor does the complete not contain a account of CSTC’s how, future, explain mental health command, chain of a glimpse we do have pa- should know which administrators practically what it would mean for LaFond they constitutionally tients’ files are com- required personally to be monitor and personally or halls pelled to review supervise each staff member and patient. requires the Fourteenth Amendment them cottages; CSTC contains three each cot- might vigilance to walk. Such be routine tage supervisor, regis- has at least one one facility, extraordinarily protocol one nurse, worker, psychiatric tered one social administration in another fa- conscientious psychologist. cottage and one Each is di- cility, simply impracticable yet “pods”; pod into four each has at vided facility. Nothing different in Youngberg one least residential counselor on staff choices, us only tells how to make such twenty-four day hours a and recreation presumed administrators must be therapy staff during daytime on site a professional judgment, have made early know, evening hours. As far as we they are if only liable exercise no ultimately responsible this makes LaFond at all. does ap- for at least thirteen supervisors —four point Supervi- us to serve as the Board of cottages each of three and CSTC’s director for Washington’s sors mental health facili- nursing approximately thirty-six —and ties, hire, fire, power promote, with the residential counselors. discipline its administrators. Yet the majority’s empower According cottage psychologist new standard would to the extraordinary care, us to evaluate—in supervising staffing detail and Ammons’s qualified, 11. Bereft of standard which to Even if the witnesses were their judge judgment, LaFond's reports conclusory nothing are and do to illu- majority reports purport- relies on the of two how, all, departed minate if at "experts” support ed that LaFond’s con- They the standard care. contain no discus- hospi- duct fell below the standard of care for standards, industry sion of and no discus- Maj. Op. tal administrators. at 1034 n. 15. through sion—other than what we all can see appear But it does not from the record hindsight' what LaFond should have done —of reports quali- the authors of these were ever See, differently. e.g., Report of Katherine A. opine required fied to on the standard of care administrators, (“hospital including at 7 Kent Rather, hospital administrators. the rec- Webster, Ms. LaFond and Mr. failed to take suggests unqualified ord that the authors are any meaningful precautions protect [Am- professional judgment to evaluate LaFond's mons]”); Report Jane W. Ramon hospital as neither has administration studied ("Mary LaFond and were Webster[] Norm or has worked as a administrator. grossly extremely negligent allowing such, unqualified opinions As their on La- relationship develop patient sexual between Fond’s conduct should be afforded minimal staff”). weight. ... and adult male [Ammons] any patient-related specific structure meant informed of concerns voiced parents such reported by [Ammons’s concerns would be the resi- as foster mother] so that she could look into the matter cottage supervi- dential counselors to the further,” I id. am not even sure sor, through the chain of “up command” to respond how to to such ad hoc constitu- nursing, director of and then to CSTC’s pronouncements. tional LaFond, making LaFond three levels re- Grant, supervision moved from the suggests neither nor cites counselor, anything residential and four levels re- in the record that indicates *24 what LaFond moved from the should have done to direct care Ammons. “en- sure” that her subordinates reported more majority’s The failure to acknowledge faithfully Certainly to her. if LaFond’s organizational complexity at a “small” subordinates had concerns Ammons just institution like CSTC is one indication abused, being DSHS, was as employees of thought through it has not the im they, she, like were a statutory under obli- practicable implications and burdensome gation report proper abuse to the holding will for the its have heads state- authority, may LaFond, have been hospitals, including run mental health ones CPS, enforcement, or law or all three. See possibly larger than Young CSTC. See 26.44.030(l)(a). Wash. Rev.Code Their 322-23, berg, 457 U.S. S.Ct. 2452 apprise failures to LaFond of whatever (“there certainly is no reason to think warning signs may have been visible to juries judges qualified are better than them were their own failures and not La- in appropriate professionals making such Fond’s. decisions”). have no pre business Further, contrary to the majority’s as scribing managerial behavior mental sertion, there is no indication in the record Clearly, institutions. majority is out of that LaFond did not steps to en “take[ ] depth its wrong doing. so sure that she specific was informed of con cerns by parents.” Maj. voiced Op. at C 1033. The record does not include a com The third of LaFond’s so-called constitu- prehensive account of what instruction or tional errors her was failure to ensure that training employees. LaFond offered to her employees jobs. majori- did their The LaFond, We know according to “[i]t (1) ty casts ways: this failure two “a practice, allegation was whenever an [her] administrator, hospital reasonable exercis- of abuse was made which was determined ing professional judgment, would have tak- unfounded, to be would direct [she] en steps to ensure that the staff who supervisors to educate and counsel staff closely worked appreciated with Grant any high about risk behavior on their part, brought seriousness the situation and person closely watch the accused for a signs these to her attention so that she period of time.” In the context of this necessary steps prevent could take the then, practice, it is meaningful, abusing position,” Maj. Grant from his Op. “[n]othing negative reported was ever (2) 1033; “LaFond should have at concerning Mr. Grant after [LaFond] [the steps least taken to ensure that she was incident investigated.”12 first] (internal omitted)). I counterargu- erality.” should not need to make a citations granularity. ment at this level of factual See proposition has cited no cases for the al-Kidd, at-, 131 S.Ct. at 2084 requires that the Due Process Clause ("We repeatedly told courts—and the specifically employees instruct her re- particular Ninth Circuit to define —not port parent concerns to her. None. The high gen- established law at a level of ig supports infringement that LaFond conduct any evidence Without warnings rights or that Fourteenth Amendment of involun- subordinates’ nored her tarily hospital patients.” Maj. committed she did not exercise words, In employees, Op. of her La- at 1030-31. because supervision in her constitutionally Neely, liable of it should have been clear to Fond cannot be held failures.13 The ma LaFond that she “violated the Constitution for her subordinates’ objective if ran afoul of jority’s contrary holding Young- amounts to consti [she] supe berg professional judgment ap- standard as Lability respondeat tutional based on rior, liability Neely.” Id. at 1031. plied and we know that respondeat superior. cannot See rest Neely anything But but clear. 1948; II, Iqbal, 129 Preschooler S.Ct. Neely, question quali- we addressed the least, At 479 F.3d at 1183. couldn’t immunity employees for four fied today. before psychiatric Stephen state-run center: Feinstein, superintendent; *25 Ill Murgo, chair a Linda staff commit- majority I strongly disagree with the investigate tee the charges convened that violated Ammons’s LaFond’s inactions by Terry, employee, against abuse Jess an rights, absolutely constitutional but I dis Cathy Neely, patient; Hosley, a Cecilia that agree was so obvious to LaFond hospital’s nursing; director of violating by she was Constitution Brown, building supervisor, respon- John a doing not not doing. what she was See al- for assigning sible staff to the various hos- (the Kidd, 131 at 2083 contours of S.Ct. pital All of wards. these defendants were right the constitutional at issue must be supervisors Terry, over and each of these “sufficiently every clear that reasonable previ- defendants either aware of the official would have understood that what allegations against Terry ous or aware of (citation right”) he is violates that doing against working the restrictions him one- omitted) added). quotations (emphasis on-one patients. Despite with female above, it As discussed is not clear to me similarities, qualified these we found im- even now that LaFond violated the Consti munity for all of the defendants but Fein- tution. How then supposed was she qualified stein. found immunity for violating have known that she was the Murgo investigation Terry because her Certainly by reading Constitution? not comported with the hospital’s regulations. Youngberg. LaFond is thus entitled to qualified immunity Id. 1511. We found qualified immunity. Hosley for Director because record did Feinstein, majority,

For the Neely v. 50 not indicate that her actions—her failure (9th Cir.1995), F.3d is the answer: put writing Terry the restrictions on “Youngberg Neely pre-exist- serve as replace decision to the absolute ing, clearly against Terry working established law as to what restriction with fe-

majority argue Neely majority argues does not even holds least one em- light this. of the absence of case law ployee "improper warned LaFond about clini- imposing requirement, LaFond such I handling reported cal staff sexual incidents out, have, point should not need to as I cottages.” Maj. Op. in the resident at 1023. there is no indication in the record that La- warnings patient-to-pa- But those concerned employees report Fond did not instruct her impropriety, staff-to-patient tient sexual parent majority concerns. But the rests its sexual abuse. qualified immunity exposes denial of —and potential liability part LaFond to least in —at spurious argument. on this if had read Neely, with a restriction were not. Even she patients male LaFond would not have known that them one-on-one—were working him she could be liable like Feinstein and not “strong directive” from her violations of by immunity protected qualified as were im- qualified And we found superiors. Id. Murgo, Hosley, and Brown. because, Brown de- munity Supervisor for And even within the Feinstein-related assign Terry to work spite his decision analysis, legal our standards contradict. previously he’d been with females when In determining question of Feinstein’s so, doing “we prevented [could not] qualified immunity, simultaneously ap we unreasonably when faced say that he acted plied ques three different standards to the But for Fein- shortage.” with a staff Id. hospital liability: tion administrator stein, immunity qualified we did not find Youngberg professional judgment standard “a reasonable official because amounting “conscious indifference much more to eliminate would have done gross negligence” objec standard and an Terry sexually the risk would abuse tive “deliberate indifference.” didWe hospital’s care.” patients female under by importing the “conscious indifference” at 1509. Id. standard from Estate Conners Mere O’Connor, (9th dith v. 846 F.2d contradictory anal These discursive and Cir.1988), which, notes, as the “complex,” Maj. than yses Op. are more was the origin equating the Youngberg 11; they n. do not make sense. What standard with “conscious indifference.” cleared three of the defendants from liabil *26 Maj. Op. See at 1029. Then we noted that ity compliance hospital regulations, with — “[a]lthough opinion the Conners used the (if compliance superior with directives indifference,’ term ‘conscious both parties any), prac in light and reasonableness Neely used the term [in ] ‘deliberate indif Feinstein, if ticalities —could have cleared ” ference.’ 50 F.3d 1507. We then ex analyzed we had but his actions with those plained origin of “deliberate indiffer scrutiny. standards of There is no indica importation ence” and its Eighth from any tion that of Feinstein’s actions were ju Amendment to Fourteenth Amendment hospital regulations violations of or that risprudence, reject but we did not we—as reprimand Terry, his decision to once parties’ proposition should have—the that cleared, to not “much but do more” was equivalent “deliberate indifference” was in light hospital pract not reasonable indifference,” “conscious which we had ear subject icalities.14 Yet Feinstein was equivalent lier said was liability, supervisors professional suit and and the other standard.15 (9th Cir.1986) Frankly, proposition I have no idea what “much 459 for the Neely more” means in this context. Nor that "state officials" with “more than a mere does occur,” suspicion Neely, that an attack suggest anything will 50 “more” Feinstein could have steps protect F.3d at “must take merely an done. This would be intellectual prisoners from the threat of lacuna, serious harm or judicial point, except a mere that low injury by prisoners” (quoting part other id. in now, throws LaFond down that Berg, (emphasis original)). 794 F.2d at 459 in hole, which we made and did not fill. Neely Berg reasoned that and other cases Supreme rejected 15. The Court “deliber “amply ... demonstrate in the face of adopted ate indifference” standard when it safety, patient known threats to state officials professional judgment Young standard in (or act) may not act with fail conscious berg, indifference, 312 n. 102 S.Ct. 2452. adequate steps but must take in Accordingly, rejected we should professional accordance with standards to Neely ambiguously standard in and not enter prevent occurring.” Neely, harm from it, fact, such, Neely Neely incorporated tained as we did. In relies on F.3d at 1508. As Kincheloe, Berg Berg Berg our decision in 794 F.2d rule. But the rule articulated Hosley personally ap- we were establish that was confusing the standard After Young- casting the actually applying -by prised Terry’s of the same evidence of — standard in professional judgment berg prior sexual assaults Feinstein re- squall viewed.”). its own—we raised name but whether of the three standards about words, Neely, In applied we No, we require subjective awareness. scrutiny different levels of to each of the said, Neely, do not. 50 F.3d supervisor-defendants; four we erroneous (“[T]he Youngberg professional ly disparate conflated two standards with test.”); necessarily objective an standard is Youngberg professional judgment stan (“[0]ur jurispru- Fourteenth Amendment dard; we contradicted ourselves on wheth required officials to have dence has never subjective proper required er the standard subjective of the risk of harm awareness violation; awareness for a constitutional ‘deliberately indif- in order to be deemed contradictorily super and we held that one ”). Unfortunately, appear then ferent’ we visor-defendant was liable for risks he was by stating to have contradicted ourselves supervisor- not aware of but that another pa- the face of known threats to “in defendant was not liable for risks of which (or safety, may tient state officials not act “personally apprised.” she was not Id. act) indifference, fail to with conscious but faithfully, Neely Read does not serve to adequate steps must take accordance anything establish and cannot be prevent standards “faithfully appl[ied].” Maj. n. Op. 1081 occurring.” harm (emphasis Id. add- 11.16 ed). then, compound problem, And majority, Unlike the I do not see how

we held one of the defendants Neely put was sufficient to Neely by qualified immunity was covered notice that she should have treated Grant expressly subjec- because she did not have differently. my or Ammons opinion, tive awareness of the risk of threat. Id. at (“[Tjhere aside, nothing Neely the record to not even correct. That *27 (and omitted)). Neely quoted) Neely, explained, was the standard for "de- and citation we indifference," predicated reasoning liberate not "was on our in the first judgment Berg, (9th standard. See 794 F.2d at Wood v. Ostrander F.2d [879 583 Cir. ("The 1989) amended,” id., opinion ‘deliberate indifference’ standard that we later ] requires ... have more than a Neely [an official] panel the amendment of which "[t]he suspicion mere that an attack will occur” should have been well aware.” Id. at 897 n. (citation omitted)); quotations Wood, see also “step[ped] 3. When we amended we County Diego, Redman v. San 942 F.2d espousing gross negligence back from as the (9th Cir.1991) ("The Berg court proper Neely panel standard.” Id. But the ... what defined 'deliberate indifference' ... omitted "[s]omehow that from their deci- (citing Berg)). Neely's means in this circuit” reason, "[Neely] sion.” Id. For this lan- adoption Berg citation to and therefore guage ... is either incorrect to the extent that operated import the "deliberate indiffer- standard, gross negligence approves ence” standard into what should have been a it must be limited to the claims inmate professional-judgment analysis. plaintiffs injured miscarriage because aof 'professional [government] of a point ambigui- captive I am not the first to out official' in the context of a ty Neely's applicable lqgal plaintiff.” discussion of the Id. at 897. If we are not sure of Grubbs, (9th scope Neely liability, In L.W. v. standard. 92 F.3d 894 it is unreasonable Cir.1996), rejected argument we that Nee- to assume LaFond would better how know " ("It ly Neely applies. established ‘conscious id. indifference See at 898 is little ” amounting gross negligence’ as the stan- have found wonder our district courts liability. (citing difficulty navigating damage dard for Id. at 897 Section 1983 (internal waters.”). Neely, quotations 50 F.3d at 1508 claims for, Neely stands it does not whatever id., clear,” crystal by not

“make[]

indefinitely considering unfounded accusa- against employees, by personally

tions file,

reviewing Ammons’s not “en-

suring” employees that her fulfilled their

statutory obligations report concerns of

sexual abuse—concerns of which she was

not aware—LaFond should have known violating she was the Constitution. least,

At granted quali- we should have immunity

fied to LaFond.

For the I I explained, reasons

would hold LaFond did not violate the event,

Due I Process Clause. by qualified

would find LaFond covered

immunity. respectfully I dissent from that of the

portion judgment and the reasons,

opinion. agree For similar I protected, I

Webster so concur

that part majority’s opinion

judgment. YONEMOTO,

Ronald M.

Plaintiff-Appellant,

DEPARTMENT OF VETERANS

AFFAIRS, Defendant-

Appellee.

No. 10-15180. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Feb. 2011. Aug.

Filed notes other staff members to against Grant. night Grant so often that “the shift was getting mad” her. She also testified In March accompanied Hernandez that she and Ammons had “entire sections Ammons to Tienhaara’s home in North (where on the Dakota, walls room [their] in preparation discharge for her them) staff could member see ... dedicat- from CSTC and her back into transition Grant,” they ed to Mr. posted where flirta- family. There, Tienhaara’s re- Tienhaara signs Tony,” tious such as “Hottie Alert peated her Hernandez, concerns to and “Tony’s Finer than and Silk.” again was reassured that Grant Am- together. mons would not be alone In late According Ramsey, Grant gave to Ram- 2003, however, March Tienhaara learned himself, sey pictures and Ammons let- Ammons go was scheduled to on a one-on- ters, Day, stuffed animals for Valentine’s outing one with Grant. When she called and, Ramsey, CDs music least to his Hernandez objection, to voice her she personal phone cell number. On occa- one facility told that the go ahead “[wouldn’t] sion, Ramsey’s Grant painted Ram- nails. approve that.” sey testified that she was often alone with that, cottage’s Ammons’s file reveals her during Grant room in her TV CSTC, time at “pod,” part cottage CSTC staff documented of the with female homes, facilities, By 2. aged system time out of Ammons different foster residential age eighteen, psychiatric hospitals. she had resided in fifteen safety, of 42 further in violation U.S.C. bedrooms, hers. mons’s including She The to federal or twice” saw case was removed that she “once testified pod exchange court. After the of some through leave district and Ammons Grant “canteen,” summary part discovery, Ammons moved for go door machine and a snack Appellants "witha soda cross-moved for building judgment. same, arguing machine. were entitled immunity. qualified 18, 2003, dis Ammons was April On live from and went to charged parties’ CSTC denied all mo- The district court her Tienhaara and Dakota with summary judgment, finding North tions for CSTC, Tien After Ammons left family. fact remained unre- issues of material she and were Grant haara discovered that LaFond and solved. court held These e-mails corresponding via e-mail. not, Neely were under v. Fein- Webster flirtatious revealed extremely (9th stein, Cir.1995), were F.3d entitled romantically were Ammons and Grant qualified immunity. matter of as a law signed For Ammons example, involved. in the The court reasoned viewed Grant,” and Grant “Crystal e-mails Ammons, the evi- light most favorable wrote, go to the canteen “Wanna once dence established Web- (I wish!).” ;) Tien Shortly after tonight? warnings” had of the risk ster “numerous e-mails, told Ammons Grant, haara discovered the Ap- and that posed Ammons and Grant had been her that Ammons literally nothing” response “did pellants until sexually January involved warnings. those LaFond and Webster relationship Ammons left CSTC. The she issue whether