LORAINE CAMPBELL, individually and as Personal Representative of the estate of Justine Booth, Plaintiff-Appellant, v. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Defendant, and LASHONDA MARIE MITCHELL, individually and in her official capacity acting under the color of state law; MURINE LEE MCGENTRY, individually and in her official capacity acting under the color of state law; SONJA PATE, Defendants-Appellees.
No. 09-35892
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 7, 2011
D.C. No. 2:08-cv-00983-JCC
FOR PUBLICATION
Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Senior District Judge, Presiding
Argued and Submitted November 5, 2010—Seattle, Washington
Filed November 7, 2011
Before: Betty B. Fletcher and Jay S. Bybee, Circuit Judges, and Claudia Wilken, District Judge.*
Opinion by Judge Bybee; Dissent by Judge B. Fletcher
*The Honorable Claudia Wilken, United States District Judge for the Northern District of California, sitting by designation.
COUNSEL
OPINION
BYBEE, Circuit Judge:
Plaintiff Loraine Campbеll appeals the district court‘s grant of summary judgment in favor of Defendants Sonja Pate, Lashonda Mitchell, and Murine McGenty,1 employees of the State of Washington‘s State Operated Living Alternative (“SOLA“) program. Defendants were responsible for the care of Campbell‘s 33-year-old developmentally delayed daughter, Justine Booth, at the time Justine was found unconscious in her bathtub. Justine died one week later. Campbell sued Defendants on behalf of herself and Justine‘s estate under
The district court concluded that Campbell did not present a genuine issue of material fact as to her
I
The circumstances of Justine‘s life, disability, and SOLA placement are relevant to our analysis, as are the final events leading up to her tragic accident and subsequent death. Accordingly, we discuss these facts in detail below.
A
At the time of Justine‘s death, she was a 33-year-old woman with a diagnosed severe seizure disorder and significant cognitive disability. According to Justine‘s neurologist, she had an IQ of 59, ranking her below the first percentile of the population.
Justine was a ward of the court previous to her eighteenth birthday. Because of her parents’ drug and legal problems, as a child Justine lived variously with her mother, her natural father, and her stepmother; in foster care; and in state institutions. In 1987, at the age of fourteen, Justine was admitted to a school run by Washington State‘s Department of Social and Health Services (“DSHS“). Around Justine‘s eighteenth birthday, Loraine
Justine was enrolled in SOLA in 1990. Campbell and Justine requested the placement, which DSHS approved. Campbell testified that she and Justine chose SOLA so Justine could live a “somewhat independent, normal life” and “do as much as she could.” Upon Justine‘s enrollment in SOLA, Campbell received a letter from DSHS thanking Justine for “deciding to participate in our program.” The letter informed Campbell and Justine that Justine‘s “participation in the DDD Region 4 — State Operated Living Alternatives (SOLA) is voluntary, and that you may withdraw your request for services at any time by contacting our Field Services Office (FSO) Case Manager.”
In 1995, the King County Superior Court ordered Campbell‘s “guardianship [to be] terminated as to [Justine‘s] estate” because Campbell had failed to “properly complete the estate.” Campbell claims that after December 1995, she stopped receiving Justine‘s SOLA-related paperwork from Justine‘s SOLA caregivers. Campbell further claims that after her estate guardianship was terminated, she no longer had the authority to terminate Justine‘s participation in SOLA. The record indicates that Campbell authorized SOLA to “seek and obtain medical treatment” for Justine, as well as to manage Justine‘s finances.
While in the SOLA program, Justine lived in a home she rented with two other developmentally disabled roommates, also in the SOLA program. Her placement in that particular home was chosen by the SOLA program, and Campbell alleges that it was done against Campbell‘s wishes. Justine received round-the-clock care from SOLA employees, who directed, monitored, and supervised her eating, dressing, bathing, and other activities. Campbell alleges that the SOLA caregivers put locks on the door to Justine‘s home to prevent Justine from wandering off without their permission. Despite this need for supervision, Justine was able to travel to Elder Care on a paratransit bus by herself, as she did on the day of her accident.
Every year, employees at SOLA conducted a needs assessment for Justine, resulting in the annual creation of a Personal Support Plan (“PSP“). These PSPs were typically drafted after a meeting attended by Justine, Campbell, and a variety of SOLA staff, consultants, and others. The PSPs were written in the first person and were meant to direct SOLA caregivers as they worked with Justine. Justine‘s PSPs included cautions related to Justine‘s use of the bathroom and bathtub in 1997, 2000, 2001, 2002, and 2003. These included warnings that Justine needed to be reminded to use her helmet while she bathed and that she needed to be monitored closely, including via baby monitor, while she was in the bathtub, e.g., “Staff
needs to supervise Justine at all times when she is in the bathtub and encourage her to use a bath pillow.” The 2006 PSP did not include a bath-specific protocol but did include a general instruction that Justine‘s caregivers should check regularly on Justine‘s safety, i.e. “Please do not!!; Leave me alone too long without checking on me.”
Defendant Pate was the SOLA manager responsible for drafting Justine‘s PSPs from 2002 through 2006. Defendants Mitchell and McGenty began working regularly as Justine‘s daily caregivers in 2001 and 2002, respectively.
B
On Tuesday, October 10, 2006, the day of Justine‘s accident, Defendants Mitchell
Around 8 p.m., Mitchell heard McGenty tell Justine to take a bath. At this time, or shortly after, Mitchell was in the kitchen preparing to give 8 p.m. medications to Justine‘s roommate; while there, she could hear Justine running the bath water. After Mitchell heard the bath water stop running, she joined McGenty in the livingroom. McGenty went into the bathroom and told Justine she needed to start bathing; McGenty then returned to the livingroom. Sometime later, McGenty needed to use the bathroom, so she went back into the bathroom while Justine was “lounging” in the bathtub but was still not bathing.
When McGenty returned to the livingroom, she told Mitchell that Justine had not yet begun to bathe. Mitchell testified that when she went into the bathroom, she found Justine relaxing in the bathtub, as was Justine‘s practice. Justine was not wearing a helmet or using a bath pillow, nor was there a monitor in the bathroom, all of which had been required at one time or another under previous PSPs, but which were not required under the 2006 PSP. Mitchell told Justine to begin washing herself. Justine responded by picking up her soap and towel and starting to wash herself. Mitchell returned to the livingroom. At some point after this, Mitchell went into the kitchen and asked Justine‘s roommate if she wanted a piece of pie, which Mitchell then served to her. Mitchell returned to the livingroom and sat on the couch.
At around 8:19-8:20 p.m., McGenty returned to the bathroom, and she began yelling for Mitchell, saying, “[O]h my God she‘s not breathing, help me get her out of the tub.” Mitchell and McGenty pulled Justine out of the tub, and Mitchell then went for the phone to call 911. Mitchell was on the phone with 911 when the ambulance arrived; the paramedics came into the house, which was unlocked, moved Justine into the livingroom, and performed CPR. As soon as Mitchell hung up with 911, she paged her supervisor. The paramedics eventually revived Justine to the point that she had a heartbeat, and they drove her to the hospital. Mitchell followed the ambulance to the hospital, apparently by driving the SOLA van. Justine was admitted to the ICU.
After a week in the hospital, Justine was removed from life support and pronounced dead. The King County Medical Examiner determined that she “died as a result of anoxic-ischemic encephalopathy due to near drowning.”
Defendants Pate, Mitchell, and McGenty were each subject to an investigation by DSHS, which resulted in the formal reprimand of each defendant. Mitchell and MсGenty were
both fired from state employment, and Pate was reassigned to an administrative position.
II
Campbell sued Defendants Pate, Mitchell, and McGenty under
The primary issue before the court is whether Defendаnts deprived Justine of a constitutional or federal right. This issue determines the outcome of the case because if Defendants did not violate Justine‘s constitutional right to Fourteenth Amendment substantive due process, they cannot be liable under
Defendants violated Justine‘s due process right, then we proceed to our qualified immunity analysis to determine if the constitutional right in question “was clearly established” at the time of the alleged violation, finding qualified immunity if the right was not clearly established. See Costanich v. Dep‘t of Soc. & Health Servs., 627 F.3d 1101, 1109-10 (9th Cir. 2010).
It is well established that although the Constitution protects a citizen‘s liberty interest in her own bodily security, see, e.g., Youngberg v. Romeo, 457 U.S. 307, 316-17 (1982), the state‘s failure to protect that interest does not violate the Fourteenth Amendment, unless one of two exceptions applies: (1) the special relationship exception, or (2) the state-created danger exception. See DeShaney v. Winnebago Cnty. Dep‘t. of Soc. Servs., 489 U.S. 189 (1989); Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011). Campbell argues on appeal that both exceptions apply here. We disagree and address each in turn.
A
[1] State actors are not liable for their failures to protect an individual‘s Fourteenth Amendment right to safe conditions unless a special relationship exists between those state actors and the individual. This “special relationship exception” is created when “the State takes a person into its custody and holds him there against his will.” DeShaney, 489 U.S. at 199-200 (emphasis added). “[I]t is the State‘s affirmative act of restraining the individual‘s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause . . . .” Id. at 200. In
himself; the duty does not arise “from the State‘s knowledge of the individual‘s predicament or from [the State‘s] expressions of intent to help.” Id.
[2] Campbell argues that the special relationship exception applies here because Justine was in state custody at the time of her death. Mere custody, however, will not support a “special relationship” claim where a “person voluntarily resides in a state facility under its custodial rules.” Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir. 1995) (student‘s voluntary enrollment in school for the deaf and “willful relinquishment of a small fraction of liberty simply is not comparable to that measure of almost total deprivation experienced by a prisoner or involuntarily committed mental patient“); see also Patel, 648 F.3d at 974 (concluding that although student was statutorily required to “attend schools somewhere” the fact that the student could be removed from school at any time “preclude[d] a custodial relationship“); Torisky v. Schweiker, 446 F.3d 438, 446, 448 (3d Cir. 2006) (finding that the district court “erred in concluding that the state owes an affirmative due process duty of care to residents of a state [mental] institution who are free to leave state custody“); Brooks v. Giuliani, 84 F.3d 1454, 1466-67 (2d Cir. 1996) (holding that an “expressed intent to provide assistance,” without an “affirmative act of restraining the individual‘s freedom to act,” did not create a special relationship between state guardians and mentally-handicapped adults placed in residential care); Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 991 (1st Cir. 1992) (finding patient‘s voluntary commitment in mental treatment facility did not “trigger a corresponding due process duty to assume a special responsibility for his proteсtion“). But see Kennedy v. Schafer, 71 F.3d 292, 295 (8th Cir. 1995) (fact that patient of state psychiatric hospital had “no absolute right to leave” and “presented a risk of suicide” precluded summary judgment in favor of state employees). Campbell acknowledges that Justine‘s placement with SOLA was initially voluntary but claims that it “became custodial in nature over time.” See Torisky, 446 F.3d at 446 (a
commitment that was initially voluntary “may, over time, take on the character of an involuntary one” and “commitments formally labeled as ‘voluntary’ may arguably amount to de facto deprivations of liberty from their inception“). Campbell alleges that SOLA careworkers took four affirmative acts, each of which “imposed on [Justine‘s] freedom to act [for herself],” DeShaney, 489 U.S. at 200, and converted her voluntary custody into involuntary custody. These liberty-restricting acts were SOLA‘s (1) placing locks on the doors of Justine‘s home to control her ability to leave; (2) maintaining control over which SOLA home Justine lived in after 1995; (3) maintaining control over Justine‘s transportation, diet, and wardrobe; and (4) maintaining control over how and when Justine bathed.
[3] Even accepting Campbell‘s version of the facts, these state actions did not convert Justine‘s voluntary custody into involuntary custody. When Justine entered the program, she could not prepare meals for herself, needed assistance with transportation, needed assistance with bathing, and needed round-the-clock supervision. SOLA‘s ability to assist and
[4] For similar reasons, we reject Campbell‘s argument that Justine‘s mental abilities rendered her under the control of the state. Campbell argues, “Due to her cognitive impairments, Justine could not leave the SOLA home without permission from her caregivers.” This argument fails for two
reasons: First, Justine‘s mental abilities were not the product of state action; they were limitations she brought with her into custody. Second, the record does not include any evidence that SOLA employees took actions that caused Justine‘s mental abilities to degrade over time, thereby requiring her to be brought under greater SOLA cоntrol.
[5] Campbell‘s remaining involuntary custody argument fails as well. Campbell argues that Justine‘s status transformed from voluntary custody into involuntary custody after Campbell‘s guardianship over Justine‘s estate terminated. We fail to see how the state‘s relationship to Justine morphed as a result of Campbell‘s failure to complete her guardianship paperwork. This is clearly not an affirmative act by SOLA.6 Furthermore, as the district court pointed out, irrespective of Campbell‘s legal status as Justine‘s guardian, Justine was not barred from leaving SOLA‘s custody. See
The dissent argues that “Justine was effectively confined by the state.” Dissenting Op. at 20046. There are no facts to make that a material dispute of fact. The dissent points out that Justine was in and out of foster homes when she was younger—largely as a consequence of her family‘s inability to care for her—but concedes that once Justine reached 18, “she was no longer a ward of the state.” Id. at 20047. Thereafter, in 1991, “Justine was ‘referred for community placement’ and ‘opted for a SOLA home.‘” Id. The dissent concedes that “[t]heoretically, Justine‘s participation in SOLA was voluntary,” id. at 20047, but has nothing to suggest why Justine‘s participation in SOLA was anything but voluntary. The record unambiguously shows that Justine and her mother requested
SOLA and that DSHS‘s letter to Campbell and Justine reminded her that her “participation . . . is voluntary, and that you may withdraw your request at any time.” That is a far cry from the Supreme Court‘s statement that the “State‘s affirmative act of restrain[t]” must amount to “incarceration, institutionalization, or other similar restraint of personal liberty” sufficient to show that the state is “hold[ing the individual] there against his will.” DeShaney, 489 U.S. at 199-200. That “SOLA placed locks on the door” is evidence that SOLA was conсerned for Justine‘s day-to-day safety, not that she was incarcerated. Dissenting Op. at 20048.
[6] Because Campbell does not articulate how any of the purportedly duty-triggering
B
[7] We likewise reject Campbell‘s argument that the state created a danger to which it exposed Justine, giving rise to state actors’ affirmative obligation to protect Justine‘s Fourteenth Amendment liberty interest.7 The state-created danger exception creates the potential for
he or she would not have otherwise faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006).8
In this case, Campbell alleges that Pate exposed Justine to the danger of being bathed by workers who were guided by a PSP that did not include bathing protocols because Pate had removed those protocols from the PSP. She also alleges that Mitchell and McGenty created a danger by leaving Justine alone in the bathtub and by failing to perform CPR.9 These claims resemble more closely those in Patel, 648 F.3d at 968-70, and Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007), where we did not find a state-created danger exception, than those in the cases in which we did, see Kennedy, 439 F.3d at 1062; Munger v. City of Glasgow, 227 F.3d 1082, 1086 (9th Cir. 2000); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997); L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989).
In Patel, A.H. was a developmentally delayed high school student attending special education class at Kentridge High School. Patel, 648 F.3d at 968. Although A.H. was closely supervised, on at least five occasions she was allowed to go to the bathroom by herself, where she had sex with another
developmentally disabled student in the class. Id. at 969-70. A.H. and her mother brought a
In Johnson, the plaintiffs claimed that their Fourteenth Amendment due process rights were violated by the police chief because his actions “affirmatively plac[ed] them in a position of enhanced danger.” Id. at 635. The plaintiffs argued that they were assaulted and injured by members of a rioting Mardi Gras crowd, gаthered at a public event sponsored by private businesses, after the police decided to “switch from a more aggressive operation plan to a more passive one.” Id. at 641. We held that the government defendants in Johnson had not violated the plaintiffs’ constitutional rights, even though they had abandoned a plan “that might have more effectively” protected the plaintiffs’ safety, id., and replaced it with a plan that was “calamitous in hindsight,” id. at 639 (citation omitted). We found that, on those facts, the plaintiffs “ha[d] failed to offer evidence that the Defendants engaged in affirmative conduct that enhanced the dangers the [plaintiffs] exposed themselves to by participating in the Mardi Gras celebration.” Id. This was because the decision to decrease police intervention “did not place [the plaintiffs] in
any worse position than they would have been in had the police nоt come up with any operational plan whatsoever.” Id.
Patel and Johnson follow the Supreme Court‘s decision in DeShaney, in which the Court found that the state-created danger exception did not apply where a boy‘s “Child Protection Team” had decided to transfer him from the custody of the state to the custody of his father, even though they had reason to believe his father was abusive. DeShaney, 489 U.S. at 192, 201. The Court held that this decision was not an affirmative act by the government defendants within the meaning of the state-created danger exception, even though that decision made possible the subsequent severe and disabling beatings the boy suffered at the hands of his father. Id. at 193. As the Court explained:
While the State may have been aware of the dangers that Joshua [the boy] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father‘s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual‘s safety by having once offered him shelter.
Id. at 201; see id. at 196-97 (“If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide [those services].“).
[8] Our decisions in Patel and Johnson and the Supreme Court‘s decision in DeShaney compel the outcome here. Although Defendant
of Justine‘s PSP, and Defendants Mitchell and McGenty were responsible for monitoring Justine on a daily basis, none of them acted affirmatively to place Justine in the way of a danger they had created. Indeed, a long bath was one of Justine‘s favorite activities—one she frequently enjoyed. Justine‘s death was caused by the dangers inherent in her own physical and mental limitations. Defendants’ prior efforts to help keep Justine safe do not render them responsible for creating the danger to which she tragically succumbed. See id. at 202 (“[T]he Due Process Clause of the Fourteenth Amendment . . . does not transform every tort committed by a state actor into a constitutional violation.“).
[9] We thus respectfully disagree with the dissent that Defendants may be liable for a constitutional violation “[b]y ordering Justine to take a bath without direct supervision” or that “the ‘routine’ of having Justine bathe herself without any necessary precautions was of the state‘s making.” Dissenting Op. at 20044. The only facts in the record show that Mitchell had checked on Justine in the tub several times and that, on finding her not breathing, called for hеlp, pulled her from the tub, and dialed 911. Those facts might show a “lapse in judgment” but not a finding of “deliberate indifference,” or an intent “to expose [Justine] to such risks without regard to the consequences.” Patel, 648 F.3d at 974, 976. Campbell may well have a complaint against Defendants under Washington tort law, but we decline “to constitutionalize a state tort.” Id. at 976.
[10] Accordingly, we hold that Defendants did not create the situation—Justine‘s impairments or her routine bath—that resulted in Justine‘s death. Their acts were not affirmative acts akin to those found in cases where we recognized a state-created danger. See Kennedy, 439 F.3d at 1062 (police confronting a man accused of child abuse by his neighbors without first warning the neighbors, as he had promised to do, after which the alleged child abuser killed two of the accusing neighbors); Munger, 227 F.3d at 1086 (police officer ejecting
an obviously drunk man from a bar and leaving him outside on a bitterly cold night during which he froze to death); Penilla, 115 F.3d at 707 (police officers finding a man in need of serious medical attention, cancelling the man‘s request for the paramedics, and then locking him in his house, where he died); L.W., 974 F.2d at 119 (state hospital supervisor assigning nurse to work alone with a known, violent sex-offender who raped her); Wood, 879 F.2d at 583 (police leaving a woman alone at night in a known high crime area where she was subsequently raped).
Justine‘s death here was tragic and unfortunate. But that does not render Defendants—her government caretakers—liable under
III
Because Defendants did not violate Justine‘s Fourteenth Amendment substantive due process rights, the district court properly granted summary judgment in their favor.
AFFIRMED.
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent because the majority has failed to consider all of the facts and to draw all inferences in Campbell‘s favor. In so doing, it сoncludes that the state owed Justine Booth no duty of care and absolves the state of any responsibility for its employees’ recklessness. We
Campbell has alleged facts that, if true, establish that the state owed a duty of care to Justine and is liable under
I. Constitutional Violation
The due process clause “forbids the State itself to deprive individuals of life, liberty or property without ‘due process of law,’ ” but does not “impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” DeShaney v. Winnebago County Dep‘t of Soc. Serv., 489 U.S. 189, 195 (1989). We have recognized two exceptions to this rule: (1) the “danger creation exception” and (2) the “special relationship” exception. Johnson v. Seattle, 474 F.3d 634, 639 (9th Cir. 2007). I address each in turn.
A. Danger Creation
To prevail under the danger creation exception, a plaintiff must show that affirmative state action exposed the plaintiff to a greater degree of danger than she otherwise would have faced. Johnson, 474 F.3d at 639. The majority concludes that the dangеrs Justine faced were a product of her own physical and mental limitations, rather than the product of any action by the state. Majority Op. at 20041. But we have never required the state to be the source of the danger posed. Rather, our “cases clearly contemplate
— or, as in this case, placed an individual in a situation where she was at greater risk of harm from her own limitations. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 n.2 (9th Cir. 2006). In other words, the “danger creation” exception applies when defendants’ acts increased plaintiffs’ exposure to dangers already present. See Penilla v. Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997) (holding that officers were subject to the danger creation exception because they placed an individual “in a more dangerous position than the one in which they found him“); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (holding that defendants were subject to the danger creation exception when thеy “independently created the opportunity for and facilitated” a third party assault of plaintiff).
Campbell alleges, and at least one of the defendants admits, that defendants Mitchell and McGenty ordered Justine to get in the bath on the night of her death. By ordering Justine to take a bath without direct supervision, defendants McGenty and Mitchell committed an affirmative act that increased Justine‘s likelihood of succumbing to the dangers inherent in her physical condition. Cf. Munger v. City of Glasgow Police Dep‘t, 227 F.3d 1082, 1087 (9th Cir. 2000) (finding an affirmative act when police ordered a visibly drunk man
The majority brushes off the role Mitchell and McGenty played in Justine‘s bath, characterizing the bath as “routine.” Op. at 20041. It ignores, however, that the “routine” of having Justine bathe herself without any necessary precautions was of the state‘s making. The defendants increased Justine‘s exposure to the risk of drowning with deliberate indifference to the fact thаt Justine had previously suffered seizures in the bath and that Justine‘s prior Personal Support Plans required her to be directly supervised while she was in the bathtub. Between 2004 and 2006, Justine had at least six seizures in the bathroom and was found on many other occasions sleep-
ing in the bathtub. The state was aware of these risks.1 Despite actual knowledge of these risks, the defendants allowed almost twenty minutes to elapse without checking on Justine while they sat on the sofa watching television.
Simply put, Justine would not have been in the bath unsupervised at the moment of her death had defendants not ordered her to be there.2 Given that state employees instructed Justine to take a bath and then failed to take even basic precautions necessary to mitigate the risk, the danger creation exception applies.
B. Special Relationship
As the majority correctly acknowledges, the special relationship exception аpplies when the state holds an individual in custody, as opposed to when an individual voluntarily resides in the care of the state. Op. at 20034. Court-ordered commitment to state care is not, however, a necessary pre-
requisite to a special relationship. Torisky v. Scweiker, 446 F.3d 438, 431 (3d Cir. 2006). Rather, the question is whether, at the time of the events in question, the individual was free to leave state custody. Id. at 441; see also Kennedy v. Schafer, 71 F.3d 292, 295 (8th Cir. 1996). This is a question of fact. The standard for summary judgment review requires that we “draw all reasonable inferences in favor of [Campbell], the nonmoving party,” and prohibits us from “substitut[ing] [our] judgment concerning the weight of the evidence for the jury‘s.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003). The burden is on defendants to show that there are no material disputes of fact.
As a teenager, Justine remained in state custody. In 1987, while she was still a ward of the state, Justine was admitted to the Fircrest School on an emergency basis.4 Justine
remained at Fircrest until she was 18 years old, at which point because of her age she was no longer a ward of the state. Her Fircrest annual social summary frоm 1991 indicates that Justine was “referred for community placement” and “opted for a SOLA home.” The summary noted that “[f]ree access to the community for Justine is tempered by her medical condition, occasional maladaptive behaviors, and need for protection.” Fircrest staff worked closely with SOLA to facilitate Justine‘s transition. In concluding that Justine “requested” the placement at SOLA, the majority fails to acknowledge this history. Based on these facts, a reasonable jury could conclude that the state, acting as Justine‘s guardian, advocated for and arranged the SOLA placement.
Theoretically, Justine‘s participation in SOLA was voluntary. The letter welcoming Justine to SOLA fifteen years before her death formally permitted her to withdraw from SOLA at any time. Furthermore, while Washington law allows the state to detain individuals who voluntarily enter mental heаlth facilities or residential habilitation centers (like Fircrest) but seek to leave, no such provision exists for individuals, like Justine, who occupy leased homes with “roommates” but are provided 24 hour care and supervision by state employees. See
But even if initial enrollment in SOLA was voluntary, a jury could conclude that Justine‘s participation in SOLA became de facto involuntary. Campbell introduced evidence thаt SOLA staff wouldn‘t let Justine “run away“, or “go on vacation“, and that Justine‘s “comings and goings” were mon-
itored by SOLA staff.5 A former
The majority also ignores a final fact supporting Campbell‘s claim that Justine was involuntarily in state custody. Justine‘s annual PSPs noted her ability to change her support program at any time, but did not inform her that she had the ability to terminate her participation in the program altogether. In this respect, Justine had fewer rights than individuals residing in state mental health institutions; people who voluntarily commit themselves to Washington state mental
health institutions must, by law, be notified every 180 days of their right to discharge upon request.
These facts could establish at trial that Justine‘s placement in SOLA, though formally voluntary, was de facto involuntary. A reasonable jury could conclude that Justine was in involuntary custody because the state (1) advocated for and arranged the SOLA placement while Justine was a ward of the state; (2) monitored and controlled every aspect of Justine‘s daily life; (3) prevented Justine from leaving SOLA; and (4) failed to inform Justine of her ability to terminate her custodial relationship. Because a jury could reasonably conclude that the state exercised involuntary custody over Justine, the trial court should not have concluded that there was no special relationship and no affirmative obligation to protect Justine‘s constitutional rights.
II. Qualified Immunity
Because I would hold that Campbell has alleged a constitutional violation, I turn to the question of whether summary judgment was nevertheless appropriаte because defendants are protected by qualified immunity. Even if a plaintiff has alleged a violation of constitutional right, state actors are immune from suit if the right was not clearly established at the time of the events in question. A constitutional right is clearly established when
its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in light of pre-existing law the unlawfulness must be apparent.
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation marks and internal citations removed). We “need not find a prior
case with identical or even ‘materially similar’ facts.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir. 2003). Rather, we need only conclude that defendants had “fair warning” that their conduct was unlawful. Id. at 1137.
It has been clearly established in the Ninth Circuit since at least 1998 that “state officials could be held liable where they affirmatively аnd with deliberate indifference placed an individual in danger she would not otherwise have faced.” Kennedy, 439 F.3d at 1066. Because defendants affirmatively exposed Justine to danger, they are not entitled to qualified immunity.
III. Conclusion
I conclude that the trial court erred by granting summary judgment to the State of Washington, holding that it did not owe Justine Booth a duty of care under either the special relationship or the danger creation doctrines. This is a case that I would send to a jury to decide whether the state failed to discharge those duties. My sense is that the tragedy in this case could and should have been prevented, and that the defendants should not be free from liability without a decision in their favor by a jury.
I respectfully dissent.