*1 рrovide.” Court, Parties extent the can so At comes before this the meaning suggested argument oral Mr. Becker language the Contract’s would have be language that the first time means raised and addressed by first trial party one has filed in a once suit court appropriate jurisdiction court, proper parties all do their would appealed. then Assuming that the rules keep being litigated from best issues it, evidence would interpretation allow an surely court. that would in different But of the might profit Contract parol from party seeking not A preclude from to liti- addressing evidence what parties in- gate though in party its chosen forum even by tended ambiguous their language re- B previously initiated suit forum garding in parties’ what court the disputes A party does not believe be should be-resolved. (Recall of-.competent, jurisdiction.” “court simply that, All this say is although I Tribe the state contends join two-judge panel opinion, our I do not jurisdiction court over this dispute.) lacks join Judge Hartz’s I be- concurrence event, In any language the puzzling does lieve that currently there is an insufficient distinguish tribal courts state record before us to address the issues argue appears courts. Mr. Becker Judge Hartz discusses in his concurrence. strips the because the waiver tribal court jurisdiction, it could be a exclusive provided jurisdiction court “exclusive” But also
the waiver. state courts do not If jurisdiction.
have the “shall exclusive original jurisdic
have ... and exclusive language juris
tion” excludes tribal-court exclude, diction, it would-likewise .state- T.D., Plaintiff-Appellee, jurisdiction, an result. absurd v. I hope this is the last time courts have Kelcey PATTON, Defendant-Appellant, construe waiver with- such clause ob- language. scure
EBEL, concurring. Judge, Circuit Department of Human Denver Services, In this appeal by two-judge Defendant. resolved panel, panel we have reached a unanimous No. 16-1092 disposition appeal. to the of the decision as Hartz, however, Judge Appeals, a con- has added United Court of States express currence his further views Tenth Circuit.
an dispositive issue that is rele- neither Filed panel vant our concurrence decision. His dicta, would if be its discussion were even panel’s opinion. panel
included Our expressly
decision does not address the
meaning language par- of the used and, generally
ties Contract their.
particular, language parties includ- provision addressing
ed in the Contract’s parties’ disputes what court should question Before that resolved. ever *3 (Gillian Dale, with Ringel D.
Andrew LLC., briefs), Evans, Hall & him Denver, Colorado, Appel- for appearing lant. Allen, abuse at the P.C., sexual Vellone, physical and severe Factor, &
Jordan of his father. hands Colorado, for appearing Appellee. Denver, summary moved EBEL, BRISCOE, Before that she is enti ground on the judgment MATHESON, Judges. Circuit immunity. The district qualified tled interlocutory This denied motion. MATHESON, Judge. Circuit Exercising jurisdiction appeal followed.2 Kelcey Patton under T.D. sued §- affirm. View we under 28 U.S.C. right violating § 1983 U.S.C. most light in the favorable ing the facts on a process. He relies substantive due that, T.D., we conclude theory,” provides which “danger-creation Patton violated T.D- n clearly established *4 for the can be liable officials that “state process substantive due constitutional those officials parties where third acts of a state official’screation right be free of harm.” that the danger caused created actor. private from a danger of (10th Doran, 242 F.3d v. Currier court that district agree We 2001) (quotations-omitted).1 Cir. T.D.’s substantive due Ms. Patton violated Patton, for the Den- worker social in placing T.D. right by knowingly Services Department of Human ver in- knowingly of position responsible (“DDHS”), one of was those vulnerability danger.3 creasing T.D.’s time, T.D., at the removing a minor juvenile ’to court She recommended home, into placing from his mother’s him placed and remain in that T.D. recommending T.D. custody, DDHS’s custody despite her temporary Duerson’s in temporary and remain be placed in safety concerns about T.D.’s admitted father, of Tiercel custody Duerson. home, knowledge of Mr. her Duerson’s from his fa- eventuаlly was removed T.D. a conviction history that included criminal received, reports ther’s home after DDHS against mi- attempted sexual assault ,T.D. half- sexual contact with his that care, notice of nor evidence in his brother, abusing potentially also Mr. son. DDHS T.D. Mr. Duerson was juvenile court during T.D.’s to inform place- later determined She failed knowledge of Mr. concerns Duerson, about T.D. suffered her ment with Mr. relátionship control over an special with and originally brought by 1. This action Gillen, mother, B.I.C. v. Regina as a individual.” Estate Garcia. T.D. added of 2013). (10th plaintiff has Cir. when he turned 18. Ms..Garcia F.34 plaintiff. is been as a T.D. since dismissed litigated both in-district parties theories The only Plaintiff-Appellee in this therefore the summary judgment granted court. The court case. theoiy, but denied special-relationship on the originally brought The action was summary judgment on the Department Denver both Ms. Patton and the appeals only theory. the unfavora- (“DDHS”). The district of Human Services her, appeal is ruling against so limited this ble summary judgment DDHS. granted court danger- § based on the 1983 claim to the order, appeal so Ms. Patton T.D. does theory. creation Defendant-Appellant only in case. this is the court’s not contest Patton does 3.Ms. liability 2. T.D. asserted two theories show a consti- that T.D. can determination against Ms. Pat- the Fourteenth Amendment (cid:127) - violation, her but instead focuses tutional theory, “danger-creation” ton: a discussed clearly arguments whether she violated above, theory. relationship” "special analyze the We law. nonetheless theory allows .established special-relationship state The explained for reasons violation liable "for officials to be held acts has assumed a below. private parties the state when history Duerson’s criminal and made dren their .mothers’ homes and placed homes, out of affirmative recommendations them their fear fathers’ where being fired. were social work- abused. juvenile ers both cases failed to alert the She to investigate also failed whether court of undermining relevant facts abusing T.D. despite Duerson was fitness as caretakers and recom- fathers’. potential awareness of evidence abuse. that the mended fathers assume This T.D.’s report evidence included despite being on notice that children — Mr. Duerson had hit wooden him with a the fathers’ homes places danger. were of. mop reports school handle and officials’ cases, And, both social workers significant that T.D. spending time investigate failed whether the fathers complaining body nurse’s office children, abusing despite being their aches and father. appearing fearful on notice of suggesting evidence abuse. information, In the face recom- Ms. Patton’s sufficiently resembles mended to the the conduct we held unconstitutional remain with his father. Ms. Patton acted such Currier that a reasonable official recklessly disregard and in conscious of a her position would have known that her known and risk that substantial T.D. would actions violated T.D.’s established immediate, serious, proximate suffer *5 right. not She was therefore entitled to conduct, harm in his Her father’s home. qualified immunity. whole, taken as a shocks the conscience and to due thus amounts a substantive I. BACKGROUND process violation the Fourteenth Background Amendment. A. Factual legal on the facts and determina- following presented Based The facts are decision, tion in light T.D., court’s a in this Currier rea- the most the favorable nonmoving official in Ms. would request sonable Patton’s shoes for party, on the sum violating have judgment understood was T.D.’s on mary the Cobos, rights. both and claim.4 Gutierrez v. 841 See F.3d Currier here, (10th 895, 2016).5 county social workers chil- Cir. removed 900 jurisdiction 4. T.D. asserts that we lack over 5. The facts come from the district court's appeal arguments Ms. present because Patton’s We also order. few facts —such as favor, require rely us on facts in hearing taken h'er reports dates and in statements of. disagree.- than in juvenile rather T.D.’s favor. We documents submitted to the court— order, explicitly presented not the court's in acknowledges that we must take but from considered documents court and light the facts in the most to T.D. favorable that are consistent with the court's factual She states does not review that she ask us to Jones, presentation. facts, See 515 Johnson v. U.S. presentation the district court’s of the 304, 319, 2151, 238 S.Ct. L.Ed.2d but on solely “focus[] instead whether (1995) (providing appellate may court that an by facts as determined the District dem Court review the determine what record to facts onstrate violation of established likely court when the rights.” district assumed district Aplt. T.D.’s constitutional Br. facts); court not state Zia Co. jurisdiction legal question We over did those Trust have that 1150, Causey Montoya, ex interlocutory appeal on rel. v. F.3d based on the facts (10th 2010) (stating 1152-53 by determined district in Cir. court and taken light nonmoving appellate for review of most favorable to the "universe facts” Glanz, party, summary judgment those here T.D. F.3d denial are facts Henderson v. 938, (10th 2015). court, may "explicitly Cir. 947-48 We found district com not, however, assumed”); guess likely do second the district bined those facts it Yorkville, Ohio, Village court’s determinations evidence sufficien see v. also DiLuzio 2015) (6th cy. (discussing Id. at 948. 796 F.3d Cir. Dependency for or from his Petition Removal Mother’s DDHS’s 1. T.D.’s Neglect Home Regina is Garda and 9, 2010, T.D. the son April On DDHS filed “Petition Duerson, separated. are Tiercel who Neglect” for T.D. and Dependency past, par- with the family has a troubled juvenile court on his sister based having for been referred ents DDHS un- DDHS’s concerns Garcia was lack neglect, supervision, intra-familial able care for her children. Ms. Patton intra-familial abuse. sexual Peti- was the case worker DDHS tion, appointed T.D. November turned was Lisa Gomez mother, living On Garciа. guardian ad litem. 2, 2009, DDHS notified November May On held school, not been that T.D. had which pre- a hearing on the Petition. Ms. Patton for program as a criminal served diversion signed by pared report hearing, for the mid-October. DDHS also charges, since supervisor, In the re- Senait Ketema. had learned his medications not been family’s Ms. Patton determined port, participated had refilled he signaling risk assessment score 11— T.D. therapy. After not re- mandated high the children level risk—and that school, a DDHS turn social worker visit- mentioned were unsafe.6 Ms. Patton home and ed Ms. Garcia’s discovered incar- Duerson been feces, ciga- animal disarray, with home years sexual attempted cerated two butts, piles dirty rette clothes assault on a that Ms. Garcia minor and gave floor. The social worker Gar- restraining him taken aout order accomplish, including list of cia a tasks keep away fami- from her Mr. Duerson sending pro- back his diversion *6 T.D. re- ly. Ms. Patton recommended that gram. custody purposes main in the DDHS for 2009, 15, in- On was December DDHS placement. formed T.D. been kicked out of his had juvenile At court ex- hearing, noncompliance for and program diversion 2010, 4, plored for The January options placement. T.D.’s truancy. On DDHS re- report parental court DDHS to ceived another T.D.’s violent obtain ordered escalating behavior was at school and at risk Mr. Duerson under the assessment instance, T.D. reportedly home. For applicable Manage- Colorado Sex Offender fork stabbed his with a sister and had (“SOMB”) ment Board standards deter- suicide. threatened commit re-committing mine his likelihood sex offenses, important to evaluate an factor 2010, early T.D. was April removed his whether T.D. placed placed should from his home mother’s and for father. Ms. ar- “Family responsible Patton was Crisis Center.” him; ty anger appropriate how it was to consider T.D.’s issues and control facts record, urination); (involuntary Duer- are not in the district enuresis Mr. stated court’s may minor but that bolster court's son’s for sexual of a determina- conviction abuse tion). offender; question The presented registration do and Ms. facts his as a sex restraining against court’s determinations of evidence sufficien- order Mr. Duer- Garcia’s Henderson, son; cy. at 948. 813 F.3d children were the fact that Ms. Garcia's programs; all Ms. individualized education home smelled of Garcia’s 6. DDHS reached these conclusions on: disheveled based urine; help family history in disci- T.D.’s of sexual mul- and Ms. Garcia’s need abuse and referrals; protection plining making her and them follow tiple child need for T.D.'s treatment; Ms. house rules. mental Garcia's inabili- health assessment, missing ranging Mr. Duerson’s risk while treatment appoint- but failed to do so.7 ments.” Dist. at 9 (quota- Ct. Order omitted). tions probation report The in Shiloh House Placement documenting the violation stated that 2010, May juvenile or-
On court he was amenable treatment place T.D. in dered DDHS to “Shiloh unwilling comply with his House,” facility a residential child care probation conditions. live, treatment, where T.D. could receive (cid:127) charged, Mr. Duerson was but not togo school. convicted, offenses, for other in- July juvenile court held On cluding assault, misdemeanor mis- permanency planning hearing —one minors, wrongs demeanor mis- every happen several would few violence, demeanor domestic placement months determine T.D.’s police resisting misdemeanor au- family At this hearing, status. thority. therapist reported that Mr. Duerson (cid:127) conviction, from Apart his 2005 there making “great progress” therapy in his “multiple been other incidents” therapist T.D. also relayed The involving P.G., abusing Mr. Duerson request that placed Duerson’s T.D. be including an incident when Mr. discharged his care after dragged into a Duerson bed- P.G. Shiloh House. grabbed her butt. room Duer- 4. Ms. Patton’s Review part investigation, As Patton History son’s Criminal parties also rеviewed what call the hearing, Report,” Before the next “Trails in the document crimi- reviewed Mr. Duerson’s system prepared in 2005 DDHS’s history, nal which revealed: social worker. DDHS detailed Mr, (cid:127) Duerson was convicted that Mr. 2005 conviction was prison years
and sentenced two attempt based on to sodomize P.G. attempted sexual mi- assault of will. nor, P.G., his step-child living investigation, on her Based Patton’s care at the of the time offense. about, “gut good” feel not] [did *7 registered Duerson was sex offend- placing Mr. questioned, T.D. with Duerson. er for conviction. that Id. at 10. (cid:127) 2005, a re- Mr. Duerson violated to straining by attempting con- order August 17, Hearing 5.The 2010 tact P.G. 17, 2010, August On before the next (cid:127) 2007, Mr. vio- November Duerson Patton, T.D., juvenile hearing, court Ms. probation. probation lated His was (an family Hutchinson ther- Briana outside “purposeful- revoked because he had (T.D.’s apist), Hommes clinician at Kyle ly complete to his sex offend- failed” House), to and Mr. met Shiloh Duerson obligations er “been treatment had custody. T.D.’s The attendees discuss deceptive disclosing his relation- ready to agreed T.D. was transition ship girlfriend,” his current with House to a lower care. Mr. no Shiloh level had his “purposefully violated girlfriend, reported successfully contact contract his had with Duerson he ment, Although favorably sup- parties dispute facts viewed to T.D. 7. the whether Ms. the arrange port she failed to do Patton failed to for his risk assess- so. 1216 put proba- on
completed offense-specific therapy minor and was later his in. offense, tion for not all did include longer probation. no that he was knowledge particular of her about meeting participants approved The or other Mr. Duer- conviction facts about Ms, ap- plan subject to Gomez’s tentative — history in Septem- son’s the final criminal T.D. proval from Shiloh transition —to 7, report, In the final ber report. Mr, home. partici- House The Duerson’s Duerson’s crimi- Pаtton did ^attach gradually the vis- pants agreed increase Report, nal Trails history which Duerson, its T.D. and between provided Duerson’s .2006 details supervision Mr. Duerson’s wife. inform the court conviction. Nor did she misrepresented her knowl- Ms. Patton probation that his revoked due his was history to edge of criminal Mr. Duerson’s his purposeful sex offender failure fulfill She meeting participants. also failed “multiple” treatment or the obligations meeting participants share with the involving other incidents abuse P.G. full of her concerns T.D.’s extent about In an report, initial draft father, placement including his expressed had concerns about taking of- his sex Mr. Duerson was father, placement including: his T.D.’s seriously.8 fense treatment (and specifi- Mr. Duerson’s criminal record cally attempted his assault sexual on P.G. 7, September Hearing 6. The 2005); proba- revocation his 7, 2010, juvenile September On fulfill his sex purposeful tion failure to obligations; offender permanency planning hear- treatment held another therapist’s taking “not concern that he was ing- Dist, seriously,” Ct. treatment Order at Hearing a. Report intentionally con- Ms. Patton omitted those report cerns her final September hearing, Before the supervisor, court. She so because her report juve- Ms. Patton submitted Ketema, told her that DDHS partici- nile It recounted how court. going to T.D. Mr. Duerson return pants August meeting go Ms. Patton “not should agreed ready to transition omitted). (quotations DDHS.” Ms. Pat- family of care and that lower level if ton fired feared she she includ- would therapist it inwas T.D.’s best believed , knowledge ed her or concerns in her final interest to Mr. home. to return report! also stated that Mr. Duerson equipped to believed he was better address Hearing b. The and that special needs Mr. Duerson Gomez attended the and Ms. offense-specific completed therapy hearing on other September No longer probation. no professiоnal from the *8 Although Patton had the Ms. informed meeting At hearing, was there. the both Mr, juvenile court that Duerson had been Ms. Patton Gomez and Ms. recommended custody.9 to Duerson’s a sexual offense transfer Mr. convicted disputed Because Mr. Duerson are Ameri- 8. It is to what extent Ms. Patton 9. T.D. and Indians, subject placement was knowledge can TiD.’s to misrepresented her or failed to i ("ICWA”), Indian Child Welfare Act meeting partici- concerns share her with requires prevent which ... "active efforts pants, we must view facts in T.D.'s but U.S.C, the,breakup family.” 25 of the Indian favor. 1912(d). argues § ÍCWA’s stan- No party outcome this case. dards affect the juvenile 13,2010 granted permission court 8. The The December Hearing begin transition. Ms. Patton prepared report for a De- 13, juvenile cember court hearing. It Patton hearing, Before the did not Ms. stated that Mr. Duerson successfully had the information discuss Trails Re- completed probation, was compliant with with port Ms. Gomez. Ms. Gómez testified plan, DDHS’s treatment inwas con- misconception she was under a about tact -with Ms. It Patton. also stated that nature of Mr. Duerson’s convic- T.D.’s behavior improving point and, tion, about had she known the details where he could attending transition from of the offense documented the Trails school at Shiloh House to attending a local she Report, “probably not have rec- would In school. report, Ms. Patton recom- placement ommended T.D.’s with [Mr. mended that T.D. remain in Mr. Duerson’s juvenile Duerson]” court. Id. at 11. temporary custody. (brackets omitted). quotations 2010,
In December Mr. Duerson and 7.T.D.’s Transition and Placement T.D. were discharged from their required
Mr. Duerson’s Home family therapy therapist séssions. The discharge stated report Meetings on September were held family had their goals reached treatment 8, 2010, complete plan October and that safety “no had re- concerns transition T.D. from Shiloh House to Mr. garding [Mr. Duerson’s] house.” Id. at 14. T.D., Garcia,. Duersоn’s home. Ms. (at Hutchinson, Duerson Ms. meeting), one 21, 9. The Hearing March Hommes, wife, Mr. Duerson’s Ms. Go- juvenile The perma- court held another mez, and a representative DDHS at- nency hearing on planning March tended. Ms. Patton attend either report hearing, for the meeting. said T.D.’s improved behavior had 21, 2010, October On Gomez filed a that, overall, school home T.D. Agreement juvenile Stipulated home; flourishing” “was Mr.- Duerson’s reporting successfully that T.D. had Id. concern T.D. She noted a minor - transitioned home on periods missed 30 class the second 15, Stipulated Agree- October term, school which Mr. Duerson blamed give ment asked the court to Mr. Duerson conflicting being and T.D. appointments; “temporary legal custody” T.D. so that encouraged sick. that she Ms. Patton said T.D. could enroll in and be school added to family try appoint- schedule public father’s assistance benefits. during ments Patton’s school. It at 13. also documented that Ms. Patton temporary custody recommended that agreed placement. Other than Ms. T.D. Duerson. remain with Mr. parents, Patton and T.D.’s none of the attendees at the 2010 meeting, Hearing 10. The June Hommes, as Ms. Hutchinson Mr. such for a report prepared June Agreement. Stipulated were listed hearing, permanency planning 3, 2010, On physical November court wrote that Mr. Duerson had used granted Specifically, “temporary legal physical punishment cus- on T.D. tody” T.D. to Duerson told her that his father had *9 Mr. “under an and Ms. Gomez supervision mop hit Id. him across the with a wooden (quo- order back [DDHS].” omitted). completing tations for not his chores. handle that, that she con- reported could told her officials had School months, spent a lot at only T.D. had Mr. attendance one last firm Duerson’s few complaining time nurse’s office hearing at the the last fatherhood class since aches, appeared to body sickness that she tried reported June. She had also father, not at timеs did afraid of his success, times, several without reported had go home. Ms. Garcia want assessment of Mr. parental written her, that, stays with during weekend T.D. however, stated, Duerson. that Mr. She to com- disrespectfully, refused had acted actively in participating Duerson fami- chores, badly, un- plete and had smelled therapy acting ly appropriately with he arrived at home. clean clothes when her young recommended that children. She that, report in her as Ms. Patton stated temporary custody T.D. remain information, she had referred result of this And, although she failed Mr. Duerson. had Fa- participate Mr. in DDHS’s Duerson every to visit Mr. Duerson’s home least Program. therhood Initiative policy required, the other month DDHS that, Patton report, Ms. stated had report mistakenly stated had “some concerns” although she home.10 monthly visits made skills,” Mr. she still “parenting in his fa- T.D. remain recommended that from Mr. Duerson’s T.D.’s Removal custody. ther’s 15. She testified Home made this recom- deposition her that she 19, 2011, September DDHS received On truly despite the fact that she mendation report contact T.D. of sexual between from father’s] to remove T.D. [his “wanted 21, September On and his half-brother. home afraid for T.D.’s because she was 2011, T.D. from Mr. removed Duer- DDHS safety.” express not con- Id. She him into tempo- son’s home took its court juvenile cerns to the because rary day. custody the next Ketema, supervisor, had told her In a for a prepared November home, T.D. in his father’s would remain stated hearing, Ms. Patton and Ms. Patton was afraid she would be Mr. minimal communication with Duerson fired if T.D. re- she did recommend hearing August, since and that last main with his father. youngest Mr. Duerson’s children had been juve- At 2011 hearing, the June home due to removed domestic partici- nile court ordered Duerson report- further drug violence use. She pate in Ini- the recommended Fatherhood only ed that Mr. Duerson had attended Program physical tiative and not use getting tempo- since one fatherhood class discipline on T.D. T.D., rary custody of had moved out state, complying August 25, Hearing and was 11.The plan. treatment In report for an 2011 hear- ing, Ms. Patton informed the Investigation Report of Abuse having reaching trouble she was reported that Mr. March T.D. him for unable to contact Duerson and was him while Duerson had abused he was period no of time. She had face-to-face custody. in- temporary DDHS father’s July, supervisor contact with as her vestigated that: and concluded instructed. disputed, policies but we are 10. Whether Patton failed DDHS’s are to observe every obliged light in the the facts most Duerson’s home at least other month to take and whether a to do violated favorable to T.D. failure so *10 (cid:127) ation theory, Duerson court concluded that Ms. sexually
repeatedly assaulted T.D. Patton’s conduct amounted a constitu- by forcibly orally sodomizing him that, tional violation and based on twice; clearly conduct violated established (cid:127) Mr. had hit T.D. Duerson with a granted law. The court also summary broomstick and threatened to knock judgment to DDHS.
him him unconscious and send to the T.D. appeal grant does not of sum-
hospital performing for not oral sex mary him; judgment on to Ms. Patton on spe- (cid:127) cial-relationship theory or grant per- Mr. Duerson had T.D. to forced
form oral him for sex on 10-15 min- summary judgment This appeal DDHS. punishment utes as for T.D.’s staying thus only concerns court’s deny- order bedtime; up past his ing qualified immunity to Ms. Patton on (cid:127) physically Mr. Duerson had forced danger-creation claim. three-year-old T.D. and his brother other;
to perform oral sex on each II. DISCUSSION (cid:127) Mr. Duerson had told T.D. not to tell We affirm the court’s district denial of anyone about the abuse. qualified facts, immunity because the tak- DDHS T.D. determined abuse had suf- en in light T.D., the. most favorable to fered while in Mr. Duerson’s home was show Ms. Patton violated T.D.’s clearly Id, “severe.” at 18. established due right substantive the Fourteenth Amendment. We Background
B. Procedural first applicable describe the standard Garcia, T.D., on behalf of legal review and standards. We then ana- sued Ms. Patton and DDHS state court lyze (1) Patton whether Ms. violated T.D.’s alleging they violated T.D.’s substantive process right substantive due under a dan- process right due under the Fourteenth ger-creation theory and- whether his Amendment. The defendants removed the right established. case to the United States District Court for the District Colorado. Plaintiffs’ sec- complaint, ond the operative amended one A. of Review Standard
here, § pro- raised a 1983 substantive due summary judgment “We review cess against claim and DDHS novo, applying legal de same standard danger-creation theory based on a and a Gutierrez, as the district court.” 841 F.3d special-relationship theory. A judg “court grant summary shall partial motion for summary filed a ment if the movant shows that is no there judgment on the special-relationship theo- genuine dispute any material fact ry. Ms. Patton filed cross-motion for judgment movant is as a entitled summary theories, judgment both as- 56(a). matter of R. Civ. law.” P. serting qualified Fed. immunity. defense standard, summary judgment applying DDHS also moved for ‘When we view the § on the claim. evidence draw inferences reasonable light therefrom in the most favorable summary judgment The court granted Gutierrez, the nonmoving party,” 841 F.3d in Ms. Patton’s on the special-rela- favor T.D., nonmoving party here tionship as the theory her on danger-creation theory. On theory. danger-cre-
1220 any Legal sufficiently reason definite
B.
Standards
official
would have under
able
shoes
1,
Qualified
§
Im-
1983
42
U.S.C.
violating
City
it.’”
that he
&
stood
munity
—
Sheehan,
Cty.
Francisco v.
San
U.S.
of
1983, person
§
a
42 U.S.C.
Under
1765, 1774,
—,
191
135 S.Ct.
L.Ed.2d 856
who “sub
acting
color of state law
(2015) (brackets omitted) (quoting Plum
any citizen
subjected,
to be
jects, or causes
—
Rickard,
—,
134
v.
S.Ct.
U.S.
hoff
deprivation
...
the
of the United States
2023, 188
(2014)).
2012,
1056
L.Ed.2d
or immunities
any rights, privileges,
of
not define “clearly
Courts must
es
laws,
Constitution and
shall
secured
the
high
at a
of generаlity.”
tablished law
levél
injured.”
to the
“Individual
party
be liable
al-Kidd,
v.
(quoting
at 1776
may
§
Id.
named in
1983 action
defendants
a
Ashcroft
731,
2074,
742, 131
immunity,
563 U.S.
S.Ct.
qualified
a
of
179
raisé
defense
n
(2011)). Instead,
...
from
1149
“the
public
clearly
officials
L.Ed.2d
which shields
their conduct was
damages
‘particularized’
actions unless
law
be
established
must
clearly
White,
in light of
established
unreasonable
the facts of the case.”
S.Ct. at
137
Gutierrez,
at 899.
Creighton,
law.”
841 F.3d
(quoting
552
Anderson v.
483
635, 640,
3034,
U.S.
107 S.Ct.
97 L.Ed.2d
as
“Once an individual defendant
(1987)). “Otherwise, ‘plaintiffs
523
would
immunity,
plaintiff car
qualified
serts
the
qualified
able
convert the rule of
be
(1)
two-part
burden to show:
ries
virtually unquali
immunity into
rule of
actions
federal
the defendant’s
violated
liability simply by alleging violation of
fied
so,
and, if
statutory right,
or
”
(brackets
extremely
rights.’
abstract
Id.
(2)
right
clearly
the
established at
omitted)
Anderson,
and,ellipses
(quoting
con
the time
unlawful
defendant’s
639,
3034).
483
U.S.
107 S.Ct.
omitted).
(quotations
duct.” Id. at 900
plaintiff
If
heavy
“This
is
burden.
Danger-Cre-
2. Fourteenth Amendment
satisfy
inquiry,
part
fails to
either
ation Claims
immunity.”
grant qualified
the court must
The Due
Clause of
Process
Four-
Carabajal
City
v.
Cheyenne, 847 F.3d
provides
teenth Amendment
“[n]o State
1203, 1208(10th
2017).
Cir.
life,
deprive any person
...
shall
liber-
A plaintiff
clearly es
may show
ty,
property,
process
or
due
without
by pointing
tablished law
to either
Su
Const,
T.D.’s claim
law.” U.S.
amend. XIV.
decision,
preme
or
Court or Tenth Circuit
process
on
is
due
be-
based
substantive
courts,
weight Of
authority
other
alleges,that
state
cause he
de-
official
existing
alleged
time of
violation.
by creating
him of a
prived
liberty interest
Gutierrez,
clearly
841
To
F.3d at 900.
increasing
private
vio-
established, “existing precedent
have
must
lence.
242 F.3d at
placed
ques
the statutory or constitutional
To
Patton is
evaluate whether Ms.
enti
beyond
Pauly,
tion
v.
debate.” White
—
qualified
immunity
T.D.’s sub
tled
—,
U.S.
196
137 S.Ct.
L.Ed.2d
(1)
claim,
due
we discuss:
stantive
Luna,
(quoting
463
v.
Mullenix
—
Supreme
in DeShaney
U.S. —,
decision
Court’s
305, 308,
136
193 L.Ed.2d
S.Ct.
Winnebago
Department
(2015)).
County
v.
So
Although
not be a
255
need
there
Services,
directly
S.Ct.
point-,”
(quoting
“case
Mul
cial
U.S.
id.
(1989),
lenix,
308),
L.Ed.2d
which established
S.Ct.
officer ‘can
“[a]n
general
not be said
estab
rule
are not
have violated a
that state officials
right
private
contours
acts of
right’s
lished
liable
and set
unless
violence
stage
danger-creation exception
Clause.” -at 197 n
of the
Process
Due
S.Ct. 998. The Court
rule; (2)
wrote:
interpreting
our
to that
decisions
may
While the State
have been aware
DeShaney allow a
ex-
*12
dangers
the
that Joshua faced in the
affirmatively
when state officials
ception
world,
it played
no part
free
in their
create,
danger of
or
private,
the
violence
creation, nor
it do anything
ren-
to
plaintiffs
to
vulnerability
increase a
any
more
vulnerable to them.
him
der
(3) our
Currier v.
danger; and
decision in
That
once took temporary
the State
cus-
Doran,
(10th
2001),
nent of an safety individual’s by having once him Un- offered shelter. a. DeShaney circumstances, der these State DeShaney, alleged the complaint no duty protect Joshua. Winnebago County social workers violated Id. at 201,109 added). (emphasis S.Ct. 998 “failing rights a child’s due Danger-creation exception b. to protect intervene child [the Joshua] Relying language empha against a risk of violence at his father’s in DeShaney, sized has above they hands which knew or should have that, as an exception to DeSha recognized 193,109 489 U.S. 998. known.” at S.Ct. rule, ney’s general a may state official rejected Supreme Court the social “a affirmatively liable state when actor could be liable. workers create, or acts a plaintiffs increasе[] to, vulnerability danger from vio private The Court lan- “[N]othing wrote: Currier, 923; 242 see also lence!” F.3d guage the Due Process Clause itself Harder, Uhlrig v. 64 F.3d n.7 572 & life, protect requires liber- State (10th 1995).12Although Supreme Cir. ty, property of its citizens yet Court danger- has confirmed that a not by private invasion actors. The Clause is DeShaney, exception exists creation phrased pow- as a limitation on the State’s in DeShaney its led “ha[ve] statements act, not guarantee er to as a certain every Appeals Circuit Court to rec ... safety security.” minimal levels DeShaney ognize an exception ” 195, 109 Accordingly, S.Ct. “[a]s 998. a Tyler, Jasinski v. dangers.’ ‘state-created general matter ... failure State’s (6th 2013) (collecting 538 Cir. F.3d an protect against private individual vio- Columbia, cases); accord Butera v. Dist. of 2001).13 simply 637, 648-49, (D.C. lence does not constitute violation F.3d Cir. Armijo Wagon sought 11. The court cited v. theory also invoke Schools, (10th court, Public Mound 159 F.3d district but the court it did determined 1998), clearly Cir. a basis for its established appeal T.D. does rul- apply not disagree We determination. district ing. Armijo, sufficiently court that which has dis- here, tinguishable pro- facts from Could those Cty., Arledge 13.See v. Franklin 509 F.3d vide do established We thus law. 2007) (6th (noting, 262-64 Cir. in a child- Armijo. facts-of detail the case, placement “recognized circuit noted, danger theor[y] due ... the state-created recognized we have another ex- As. process liability” City Co ception DeShaney’s general spe- Kallstrom v. rule —the (6th Gillen, lumbus, cial-relationship theory. F.3d 1066-67 Cir. F.3d at Background Factual To i. invoke actor theory, plaintiff must show state Shirley CYF worker social “affirmatively to create increas act[ed] children, the home of two Medina visited to, danger vulnerability plaintiffs A.J., es reportedly L.J. who ne- Currier, 242 F.3d private violence.” glected Id. at 909. After by their mother. McDonnell, state, 923; v. 299 finding see also mother had left the Ruiz (10th 2002). 1173, 1183 physical placed If a Medina plain Cir. F.3d petitioned of CYF. Id. CYF New preconditions, plaintiff those tiff meets grant- order Mexico’s court for an must next demonstrate: ing custody of legal the children CYF. *13 (1) entity charged state and Id. actors charged created individual told petition, In Ms. Medina danger plaintiffs or increased father, Christo- court that the children’s vulnerability to the in some pher Vargas, not the chil- supported way; dren, in “alarm- allowed to live them (2) plaintiff was a member a limited conditions,” ing and “have a would hard specifically group; and definable Id. taking time care the kids.” She (3) put plaintiff at defendants’ conduct the court nonetheless recommended serious, substantial risk immedi- custody of children to grant physical harm; ate, proximate and keeping legal custody Vargas, Mr. while (4) known; or CYF. Id. the risk was obvious hearing (5) petition, Before the on the CYF recklessly con- defendants acted social Tom Doran Mr. risk; worker learned disregard of that scious irrespon- Vargas history of financial had a total, conduct, such when viewed sibility, including only eight having made shocking. is conscience payments preceding in the child-support added). Currier, (spacing at 918 F.3d three But Doran noth- years. Id. Mr. said On element —whether ing final hearing knowledge. at the about that shocking the conduct conscience is. Id. —nei ordinary permitting nor negligence ther 10,1993, on Ms. May On based Medina’s as qualifies unreasonable risks conscience recommendation, physi- granted the court Ruiz, “Rather, shocking. 299 F.3d custody Vargas cal of the to Mr. degree must plaintiff demonstrate CYF. Id. kept legal outrageousness magnitude poten noticed a July Mr. Doran small truly harm is tial actual conscience Vargas’s bruise on Id. Mr. AJ.’s cheek. omitted). shocking.” (quotations I'd. it girlfriend explained was a result playground fall. Id. A.J. Doran
c. Currier v. explained also had another bruise a fall. Doran did Id. result Our decision which involved Id. investigate either bruise further. brought against claim Children, Mexico’s workers New social eventuаlly The mother returned (“CYF”), Department guardian Youth and Families state told the children’s ad girlfriend Vargas controls thé outcome of litem 242 F.3d that Mr. children, in- abusing physically this case. claim). 1998), holding support but the facts eluding by dunking in a them bathtub to children. Id. Ms. Medina took over the punish them. Id. Mr. Doran investigation learned about and discovered bruises on A.J., these accusations but but investigate. failed concluded that they were the result a fall. During Id. the investiga- tion, L.J. told Ms. Medina that she had 19, 1993, On October on Do- based Mr. spanked been with a belt. Id. Ms. Medina recommendation, ran’s Vargas and Mr. Doran instructed the children’s legal custody awarded of the children. Id. stop making mother allegations that Mr. 919 & n.6. This court determined Vargas abusing the children. Id. Doran was responsible [ju- “[Mr.] for the later, A few months Vargas poured venile grant court’s] decision to [Mr.] Var- boiling A.J., water causing severe gas legal custody, through either fail- bums. Id. At the emergency department, ure to investigate to the court doctors found A.J. “was every- bruised or through his affirmative recommenda- where he was not burned.” Id. A.J. eventu- tion.” Id. at 919. ally in the died intensive care unit. Id. L.J. time, Around that further indicia of was also found “covered with bruises” and light. instance, abuse came to For Octo- Vargas’s from Mr. removed home. Id. *14 20,1993, ber CYF workers noticed bruises Representatives for A.J. and L.J. L.J., “Da, on who said Da” had caused brought a substantive due claim Id. guardian them. at 910. theAt ad litem’s § under 42 U.S.C. based the dan- request, Mr. Doran interviewed Mr. Var- ger-creation theory Medina, against Ms. gas girlfriend bruises, and his about Doran, Gonzales, and one other couple which the said were caused fall- CYF worker. Id. at 908. The district court ing from a bunk bed On No- ladder. Id. denied their of qualified assertion immuni- 17,1993, vember CYF again officials found ty. Id. at 911. A.J., bruises on explained also as caused fall, by a bunk bed unexplained and bite Analysis ii. in Currier marks on L.J. Id. CYF then removed L.J. (1) On this court appeal, addressed: and A.J. from Mr. Vargas’s home and supported whether the facts a constitution- placed them with relatives. Id. al violation under the danger-creation the- Mr. Doran prepared an affidavit ory; and whether there November meeting with his su- established law. See id. 917-25.We focus pervisor, Gonzales, stating Melba that the Doran, claim against here children subject would be to further abuse Medina, Gonzales, whose actions if permitted to stay Vargas. with Mr. Id. were most relevant to T.D.’s claim.14 But Mr. Doran strongly “failed to advocate
against return of the children [Mr.] 1) Constitutional Violation Vargas.” Id. Ms. Gonzales concluded that Currier first addressed whether DeSha the children be returned to Mr. ney barred the claim and Vargas, happened which shortly thereaf- DeShaney answered no. It held did not bar ter, Id. relating the claim place to the children’s
After the children returned their fa- ment their father’s home because the home, ther’s requests CYF received to in- exposed children “would have been vestigate possible physical abuse dangers from their father but Ms, Although regard only Patton asserts that "the the other workers’ actions social potentially analysis relevant in Currier relates appeal. relevant to Doran,” to the actions Aplt. Br. at we (brackets and citations omit acts the state.” Id. at 918-19 Id. 919-20 affirmative added). ted). (emphasis The court The wrote: “When court considered Doran’s n affirmatively acts to investigate) remove a (i.e., state be inaction his failure custody of one from the parent his coupled
child cause it was “affirmative parent, then the child with another places the, removing constitutional DeShaney does foreclose the children placing their mother and Id. at 919. court further liability.” their father.” n.7.15 Id. at 920 the facts supported whether addressed Although sixth was “some- element danger- violation under the closer Currier held Mr. question,” what theory. creation conduct, total,” “viewed Doran’s when Doran, panel answered As to Mr. shocked the cоnscience: first elements of the dan- yes. On the five light information Doran of the initial ger-creation claim: financial Vargas’ irresponsi- had about the danger meets cre- Doran’s conduct bility, light the numerous liability .... theory of Doran “cre- ation abuse, allegations bruises Doran’s plain- increased the ated investigate the failure to bruises- and ' ' danger” vulnerability tiffs’ allegations subsequent-responsi- his to investigate through failure bility granting for the court order Var- allegations bruises and numerous gas legal custody be conscience could responsibility for the abuse course, shocking, on fur- depending, legal custody granting court order by discovery. ther provided context as members Vargas. A.J.] were [L.J. and n spécifícally “of limited and definable *15 Medina, . As. to Currier Ms. held group”: children the state removed has in,the involvement initial removal of the parent into natural taken from their and home children from mother’s their could failing custody. By investigate to state claim. support Id. at of allegations child and abuse instructing 921. But she could be liable recommending Vargas legal assume making allegations of the mother to stop put custody, conduct and Doran’s [A.J. Vargas serious, child abuse received cus- after immedi- obvious risk at L.J.] tody doing “affirmatively” in- harm, because so ate, proximate and a harm vulnerability to recklessly creased consciously and disre- the children’s Doran Id.16 garded. abuse. id. panel
15. The
wrote:
com-
It is
that the conduct
true
Plaintiffs
Medina,
Along
16.
Ms.
Doran had
partially failure'by
to act
plain
isof
Doran
making
stop
allega-
instructed
to
.
the mother
Doran’s
particular allegations of abuse.
panel
Id. at 910. The Currier
tions
abuse.
allegations
investigate
to
of- abuse
failure'
specifically
social workers’ in-
addressed the
legal
children were in
custo-
Medina,
while
state
only
struction
as to Ms.
held it
however,
distinguished,
from
dy should be
danger-
supported the
to and
relevant
the state failed
rescue
a claim that
against her
her con-
creation claim
because
legal given children once
vulnerability
children’s
duct increased the
Vargas.
alle-
investigate
failure
Vargas.
pan-
Doran’s
Id. at 921. The
abuse from Mr.
gations
in the
should-be
abuse
viewed
el’s
whether to
earlier
discussion
consider
general
post-placement
context of
state’s affirmative
Mr. Doran’s
conduct was fo-
intervene,”-which
removing
the:
"failure to
conduct
children
cused on his
instructing
affirmatively
placing
does not describe
their mother
children
at.9-19-20,
children's mother. Id.
their father.
Gonzales,
that,
held
As Ms.
we
reversed as to the
claim
Medi-
supervisor, she
con-
violated
na.
children’s
Mr. Doran and Ms. Medina were
rights
failing
to cor-
those
Ms. Patton’s conduct violated T.D.’s
Id. at
through
rect their conduct
training.
clearly established
substantive due
923.
right under
Currier
free
from state-
Doran,
Medina,
danger.
created
Currier shows Mr.
We
affirm
therefore
and Ms. Gonzales could be held individual- district court’s
denial Ms. Patton’s sum-
ly
responsible
mary
their unconstitutional ac-
judgment motion asserting a defense
they collectively
tions when
contributed
qualified
immunity to
danger-cre-
deprivation
constitution-
children’s
ation claim.
rights.
al
appeal,
On
court,
as she
district
only
addresses
second
2) Clearly Established Law
prong of
qualified-immunity
defense—
finally
Currier
addressed whether
whether she
a clearly
violated
established
actions
defendants’ unconstitutional
violat-
right.
We
ad
nevertheless
Id. at 923.
“clearly
ed
established”
law.
dress both prongs, as the district court
Doran,
As to
held
Currier
the law did,
questions
because the
of whether
clearly
“a
established that
reasonable state
and,
there was a constitutional
if
violation
official
have
in 1993
would
known
and 1994 so, whether the violation
of clearly
reckless,
shocking
conscience
law, are
established
See
intertwined.
Pear
quo
placed
altered
status
son,
(“It
at
U.S.
or increased (5) “multiple involving other incidents” posed T.D. physical Mr. Duerson’s and sexual abuse of P.G. private Patton created or violence increased T.D.’s vulnerability express Nor did Ms. Patton her own ad- danger posed to the Mr. by Duerson. See negative “gut” feeling about T.D.’s mitted Currier, 242 at 918. We F.3d devote most placement with his father.18 Viewing the our analysis this element. favor, facts in T.D.’s we conclude a reason- jury able could Ms. First, find Patton’s failure to Ms. Patton was one of those re- juvenile inform the knowledge court of her sponsible placement for T.D.’s initial concerns, coupled when with her affir- Mr. Duerson’s thus home and created or mative incomplete and therefore mislead- vulnerability increased T.D.’s to the dan- ing statements, juvenile influenced the posed by ger Mr. Duerson.17 her Sep- decision, court’s placement making juvenile report tember to the court responsible placement Patton for T.D.’s hearing, Ms. Patton intentional- place Duerson’s home—a report ly deleted from her danger. her concerns about Duerson and withheld certain Second, Ms. Patton created increased undermining facts Mr. Duerson’s fitness as danger posed T.D.’s vulnerability by caretaker, including: placed T.D. Duerson after was in his (1) temporary of Mr. Duerson’s 2005 details con- on November 2010. attempted
viction of
sexual
four post-placement hearing
assault
her
re-
minor,
step-daughter
ports,
on a
his
T.D.
P.G.
she recommended that
remain
care,
who
temporary custody,
was
his
documented in
Mr. Duerson’s
de-
Report;
spite having
the Trails
that he
physical-
evidence
ly abusing T.D.
(2)
The record shows:
restraining
2005 violation
order
attempting
reported
contact
her that Mr. Duer-
P.G.;
mop
son
hit
with a wooden
him
stating
"responsi-
significance." Aplt.
When
no
Br. at
"constitutional
placement,
argument
ble” for
we do
not intend
44-45. But
misses the
Ms. Patton’s
suggest
solely responsible
point
intentionally
that she
excluded informa-
Rather,
placement
we
potentially
use the term
decision.
tion
her
that was
im-
significant
portant
juvenile
placement
to describe her
contribution
court's
deci-
placement,
thereby making
responsible,
present
argue
sion. Nor does she
evidence or
others,
potentially along
creating
independently
had the in-
danger posed to T.D.
reports.
formation
she excluded from
In-
deed, although
juvenile court
knew about
appeal,
emphasizes
On
the facts of Mr.
conviction
question
probation,
showing
there
was “no
Juvenile Court
is no evidence
it had
there
*18
Report
was
attempted
aware of
to
[Mr. Duerson’s]
sexu-
access
the Trails
internal
—an
assault,”
already
particular
al
DDHS
and that Mr. Duerson had
documеnt
detailed
facts
that
completed
probation
"multiple”
his
of his
sex offender
offense and documented
treatment,
so her
other
removal
those facts bore
incidents of
P.G.
ajjuse
chores;
it
her
coupled
affirmative
completing
cause
handle
with
n
in
to the
exposing
actions
T.D.
by
School,
posed
father.
(2).
reported
to her
officials
his.
,
spending significant
.
time
T.D. was
tempo-
T.D.
in Mr. Duerson’s
When
complaining of
the nurse’s
at
office
(1)
rary custody,
Patton
Ms.
received
body aches, appeared
sickness and
allegation that Mr. Duerson had hit
T.D.’s
father,
of his
and at
to be afraid
(2)
mop
him
the school
with wooden
to
to
go
not want
home
times
appeared
officials’
that T.D. had
reports
his father.
father,
of body
fearful
complained
disclose
informa-
Ms.
did not
Patton
aches, and
time in
spent significant
post-placement
tion
her third
until
Despite knowing
office.
nurse’s
school
she
on
never disclosed
June
allegations,
Patton
about these
Ms.
failed
safety
and true desire
hér fear
T.D.’s
to
to conduct at-home site visits Mr. Duer-
to
the home based
T.D.
remove
month,
every
son’s home
least
other
at
as
Patton
rec-
Ms.
instead
information.
policy required.20
DDHS
Nor did
com-
reports
of her
that T.D.
in all
ommended
plete
required face-to-face contact
DDHS’s
temporary
Duerson’s
remain Mr.
custo-
July
T.D.
as Ms".Ketema
with
dy.
safety
to
decision
withhold
Her
She also failed
directed her
do.
follow
concerns, coupled
her recommenda-
with
after
30 class
up
peri-
T.D. had missed
T.D.
his father’s home
keep
tions to
accepting Mr. Duerson’s
merely
ex-
ods—
abuse,
potential
of evidence
the face
conflicting appoint-
cuses
T.D.
responsible
for the
one
those
made
See,
Currier,
e.g.,
ments
was “sick.”
keep
juvenile court’s decision
at
Mr. Doran
(concluding
F.3d
failed
temporary
Mr.
custpdy.
following up
investigate by
after Mr.
Third,
investigate
Patton failed to
Ms.
childrеn’s
Vargas reported the
bruises
Mr,
abusing T.D.19
Duerson was
whether
falls).
Ms.
result
Patton also
earlier, the
As
Currier court consid
noted
25, 2011
reported
hearing
at the
investigate
ered
Doran’s failure
.
(1)
having difficulty”
contact-
she “was
Vargas
chil
abusing
whether Mr.
time,”
ing
“period
for a
Mr. Duerson
coupled
his failure was
dren because
to conduct a
she had failed
written
removing
“affirmative
parental
Mr. Duerson after
assessment
placing
from their mother
children
hearing.
Ct.
the June
Dist.
Order
their father.”
at 920
n.7.
at 16.
supports
may
we
consid
Currier thus
sum,
amounted
her actions
fail-
investigate
er
Patton’s failure
evi
evidence that
abusing
investigate
dence
Duerson was
T.D. be
ure
Mr. Duer-
dispute,
allega-
quired to
so
DDHS are in
we
19. Ms. Patton asserts that "there is no
do
,
investigate any,alle-
failed to
must view
facts in
favor.
tion
those
gation
any point,” Aplt.
of abuse at
Br. at 50.
justified its decision not
The district court
See,
alleged
complaint
e.g,,
otherwise.
alleged
to consider
failure to visit
Ms. Patton’s
.31, ¶¶
App„
(alleging
26-28
Vol. .1
every
Mr. Duerson’s
least once
other
home at
failed to
monitor
Duerson’s home
ground
month on
it did "not constitute
uncover,
every
month to
least
extent
affirmative
Dist. Ct. Order at 39
action.”
n.23.
T.D.j;
¶¶
(alleging
.the
31-34
abuse
id.
shows,
analysis
Ms. Patton’s fail-
But
our
credible,
investigate
Patton failed
re-
Duerson’s home
ure to Visit Mr.
rele-
may
abuse).
.
ports of
.
accompanying
long
is
vant so
as there
affir-
Although
See
1230 (2) concerns withholding notice of her despite being on that Mr. her Sep- her Duerson from abusing T.D. about Mr. was Duerson 2011, 7, 2010, and tember June Ms. 4 5: Patton iv. Elements and acted juve- 2011 to the reports disregard recklessly in conscious fired; being for of nile court fear or known risk of obvious an (3) to in- her awareness of and failure Ms. Patton acted The record shows that potential of vestigate evidence a recklessly disregard and in conscious of abuse, including report T.D.’s 4) (element obvious or risk that was known hit him with Mr. Duerson had Currier, 5). See (element 242 F.3d at 918. mop officials’re- wooden and school significant ports spent that he had report Sep- In her initial draft office time in the school nurse’s hearing, Ms. 2010 tember ap- aches complaining body placing her concerns about included father; fearful of his pearing knowledge on her Duerson based history particular, his of his criminal being responsibility for T.D. —in abusing child in his care. But she inten- remaining in Mr. Duer- placed and tionally concerns the final deleted those son’s home. being fired. fear her June significantly ex- Patton’s although hearing report, re- “ordinary negligence” “permit- or ceeded potential ported various incidents abuse ting risks” rose to “a unreasonable court, to the Ms. Patton nonethe- degree magnitude outrageousnеss and a intentionally withheld her concerns less potential truly that is or actual harm safety
that she feared for T.D.’s and her Ruiz, shocking.” 299 F.3d conscience professional judgment that T.D. should be Currier, also omitted); see (quotations from his father’s home. removed (determining that Mr. at 919-20 F.3d of her Ms. Patton’s intentional exclusion Ms. Patton’s parallel Doran’s conduct to knowledge hearing and concerns (discussed shocking) was conscience more showed she reports recklessly acted below).
known T.D, for the children’s ran acted mative conscious See risk recommendation, id. recklessly in disregard that Mr. safety through (holding of an conscious Duerson posed despite obvious disregard his affir- Do- creating or T.D.’s sum, substantive due increasing Patton’s conduct violated n [*] private n n violence vulnerability right by Duerson. knowledge allegations abuse and Vargas’s undermining Mr. fitness as facts Clearly Established Law caretaker). T.D. suffered Under
v. Element 6:
Patton’s conduct
right
constitutional violation of a
shocking
conscience
clearly
previously
As
dis
established.
conduct, viewed “in total”
Ms. Patton’s
law,
cussed,
to show
established
favor,
in T.D.’s
conscience shock-
placed the
“existing precedent must have
light
ing in
of:
beyond
statutory or
question
White,
(1)her
(quota
withholding of certain
informa-
debate.”
137 S.Ct.
omitted).
Although
tions
tion about Mr. Duerson’s criminal
need
there
id.,
officer
history;
point,”
directly
“[a]n
“case
clearly-
cannot be
to have
that Mr. Vargas
legal
violated
the court
assume
said
right’s
unless the
con
right
established
custody.
F.3d at 919. Those facts sup-
*21
sufficiently
any
that
tours
definite
ported Currier’s
that
conclusions
Mr. Do-
in
reasonable official
his shoes would have
(1)
ran
created or
the
increased
children’s
Shee
he was
violating
understood that
it.”
(2)
vulnerability
placed
to the danger,
the
han,
(brackets
quota
child not provide clearly established law. does in- his awareness and failure argues using Currier first She forecloses abuse, including potential vestigate to support her post-placement conduct. chil- numerous bruises remaining Her constitutional violation.23 explained dren bunk caused *22 arguments' attempt to Currier distinguish allegations bed Mr. Var- falls not us that children; persuade .24 Ms.. abusing Patton does gas was. qualified immunity for she is entitled to (3) responsibility juvenile for the clearly Mr, of law. lack established granting legal Vargas court’s custody. Post-custody i. conduct closely 920.. Patton’s Id. at conduct light argues Ms. Patton first held resembles Mr. of: Currier Doran’s that not rele- “post-custody conduct” was (1) withholding of her informa- certain to the analysis vant tion Mr. Duerson’s about criminal Doran, Mr. her own so history; post-placement 3, place- the November 2010 conduct after (2) her of to in- and failure awareness Aplt. Br. at ment'is also irrelevant. 48-49 .of vestigate potential evidence 919-20). (citing Currier, 242 This F.3d abuse, including argument misinterprets Currier. Mr. Duerson hit him with mop re- and school officials’ wooden that, Currier, recognized court this ports significant had spent that he during en- the time the defendant official time in the school office nurse’s gaged affirmatiyely con- in conduct body of ap- complaining aches and creation, all, to of tributed. father; of pearing fearful tending do so—in- defendant’s conduct responsibility being her for T.D.’s cluding investigate rele- failure —is placed remaining in Mr. Duer- vant. Relevance turns not on when son’s home. custody placement occurred but when above, danger-creat- As affirmative noted also withheld defendant’s ing analysis in Mr. conduct occurred. concerns Duerson from about Our 2010, 13, 2011, September 7, June Currier clear. We considered made this 25, reports Doran’s 2011 Mr. Mr. juvenilq recommendation that being Vargas legal custody of his court for have fear fired. Based should children, foregoing, though Pat- Mr. a reasonable official in Ms. be relevant even (1957), regard argument par 80 appro- L.Ed.2d rather than the more 23. We more priately Iqbal, directed whether there was a requirements ticularized v. Ashcroft violation, 662, 1937, but nonetheless we 556 U.S. 129 L.Ed.2d S.Ct. 173 it pre- address here because Ms. Patton has (2009), Corp. 868 Bell Twom Atlantic v. argument. prong-two sented it as a 1955, bly, 550 U.S. 127 S.Ct. (2007). Aplt. But Br. at 37 n.6. L.Ed.2d points Patton also we re out argue explain Ms. Patton does how that not viewed motion dismiss the claim in Curri may provides affect whether Currier notice-pleading er under the standard Con law. established Gibson, ley 355 U.S. v. S.Ct. Vargas physical already custody assumed abuse that before occurred (though custody) not chil- legal granted to the concerned the father same Further, F.3d at 919. dren. Vargas’s children who Mr. placed we did consider Doran’s failure custody. Arg. Oral at 3:12-28. Ms. Patton investigate the children abuse after contends shе was “alerted to any never legal Vargas custody to be received by abuse [Mr. before Duerson] relevant, legal custody because custody was Aplt. transferred [him].” made, decision had been but because the (bold omitted); Br. at Arg. Oral 3:24- panel said Mr. Doran was not at argument 3:48. This fails for two reasons. engaging time in affirmative First, what matters most is not the iden- put danger, such as rec- victims, tity but the social ommending to that the workers in both cáses had evidence child Vargas. children remain Id. at abuse making fathers before their 909, 919. Finally, we considered Ms. recommendations, and thus had Medina’s instructing moth- children’s notice the fathers’ danger- homes would be er to remain silent about the father’s al- *23 Currier, places. ous In Mr. Doran leged had though abuse to relevant even notice, allegations Vargas so based that did after Mr. obtained le- Mr. short, gal custody. Vargas Id. conduct abused the children had after as- danger depends relevant creation on suming physical them, custody of that Mr. conduct, which can affirmative occur be- Vargas’s home continue to would be a fore legal and after a obtains parent cus- place of if danger father granted tody of a child. legal custody. Currier, See 242 F.3d at Currier, 919-20. He placement
Under T.D.’s in Mr. nevertheless recommended Mr. 3, 2010, Vargas Duerson’s legal custody home November be- awarded of the not conduct determine what was relevant children. at 919. Rather, to T.D.’s danger-creation claim. Here, Mr. Duerson’s abuse P.G.—his Currier inquiry shows the relevant is step-child gave his Ms. Patton care—
whether Ms. took Patton ac- affirmative notice that Mr. home Duerson’s would be a Patton, tions after similarly date. place for T.D. See Dist. Ct. Currier, to Ms. took Medina affirmative (explaining Order at 36' the record sup- 3, 2010, by actions after recom- November ported that Ms. Patton was on notice that mending four that T.D. times remain might Mr. Duerson “re-offend an- Mr. physical le- temporary care”). other By child intentionally gal custody. affirmative actions Those omitting juvenile from report her conduct, post-placejnent made her includ- court her concerns and details of Mr. ing investigate her failure to evidence of Duerson’s criminal history including her — potential abuse, T.D.’s analyze relevant knowledge “multiple that there were other danger-creation claim. abusing incidents” Mr. P.G.—- Duerson Attempts distinguish ii. Currier Ms. Patton’s own actions reflect she knew impor- information she excluded was attempts distinguish Ms. Patton’s * tant placement the court’s decision. Currier-on four all grounds fail. Doran, Compared to Ms. Patton Mr. had 1) children Same stronger even evidence Mr. Duerson was a child But she nonetheless abuser.- argues “dispositive Ms. Patton dis- placed child be tinction” recommended that a between case is Currier and this allegations that Currier home. past child convicted child abuser’s See, e.g., Aplt.
Second, (arguing Br. at 46 ther. as Mr. Doran recommended just Vargas’s in Currier to disclose Mr. Ms. Patton’s information failure had though him he even should live to other individuals “does establish them, Patton, after previously violation”). abused more constitutional Whether Duerson’s abuse learning about Mr. prong-one constitu- properly viewed T.D., stay that T.D. should recommended or a argument prong-two tional violation court followed father. clearly argument, it lacks established law recommendations, leaving those merit. to abuse enabling the father the home including “team” as She identifies multiple him on occasions. litem), (T.D.’s guardian ad Ms. Gomez pre-placement her con Combined with parents, and the attendees at the duct, makes post-placement T.D., meeting, including Currier than for a stronger even case (an family Briana Hutchinson outside ther- once violation. (T.D.’s apist), Kyle Hommes clinician Vargas Mr. Mr. Doran knew that But House), Shiloh receiving physi his children after abused DDHS who made the recom- сase worker (but them, legal) custody cal September mendation at the hear- single supporting Doran’s recommendation ing knowledge and who withheld chil Vargas’s legal custody those placement concerns about the viola dren to a contributed to the juvenile final submitted that, Currier thus tion. established Patton, only court. from Ms. apart And once Duerson knew participated “team” member who home, in his her recom abused T.D. *24 September hearing was Go- Ms. in Mr. that T.D. should remain mendations mez, failed with whom Ms. Patton to share led to a temporary Duerson’s also knowledge the full of Mr. extent her sum, pre- In constitutional violation.25 her or history her concerns about post-placement sup together conduct him, placement Currier violation. including T.D.’s ports a with de- clear tails of 2005 conviction Mr. Duerson’s doc- 2) process “Team” Report. umented in Trails Ms. Gomez arguments Ms. “probably” Patton raises two related testified that she would have in process placing about T.D. a “team” changed placement her recommendation Both fail. Mr. Duerson. Ms. these Patton shared details with they have her her because would corrected First, she could questions whether she misconception the nature about other “team” members also liable when (brackets at 11 his fa- conviction.26 Order supported placement Dist. Ct. lawyer do argument, ton notice that he could either or both Ms. Patton's at- At oral argue tempted that her notice of Mr. Duer- abusing give physically T.D. did not her son’s 26. Ms. other "team” members Patton asserts sexually Apart he would abuse T.D. notice knew, information she access to the being improperly the first raised for requested could that information. For have argument, time see EEOC v. at oral TriCore instance, argues is at like- “[i]t she least (10th Labs, ” 941 n.13 F.3d Reference ly’ up past Ms. Mr. Duerson’s Gomez looked 2017), argument Cir. lacks A home this merit. database, history Aplt. criminal in a Br. state place abuses a where the caretaker child is so, 47, but, it even if that would at danger takes. form that abuse —whatever compensate knowledge of the for her lack of event, physical- any Mr. Duerson had both Report document Trails different than Mr. —a ly putting sexually Pat- abused Ms. report. history P.G.— Duerson's criminal omitted). Ms. Patton also cannot shift outlined her place- concerns about T.D.’s blame to other “team” members when she (i.e., ment with Mr. Duerson being avoid failed disclose to them full extent fired) support that she knew knowledge about Mr. Duerson’s crimi- posed to T.D. Mr. Duerson’s home and history nal or her concerns about T.D.’s that she consciously disregarded that risk. placement in his home.27 Nor does Currier allow her to escape Second, argues is no indica- “there liability supervisor’s due miscon- tion part Do[r]an was of a team decision- Currier, duct. In we held that Mr. Doran’s making process” in Currier. Aplt. Br. Gonzales, supervisor, Ms. could also be 42-43. But Ms. Patton is incorrect liable for unconstitutional Currier any plac- lacked “team” knowingly failing to correct Mr. Doran’s Currier, ing children. four CYF and Ms. Medina’s unconstitutional behav- social together place workers worked ior. Id. at 922-23. The actions of Mr. Do- the children in Mr. Vargas’s custody. The ran’s supervisor did not absolve Mr. Doran guardian children’s ad litem and mother liability. This same is so with Ms. Patton also place- were involved the children’s and Ms. Ketema. ment. See 242 F.3d at despite 908-10. And of a group involvement 4) provide Failure to criminal record social held the workers could be held Currier argues sup- does not individually responsible danger-cre- for a port a danger-creation claim “premised on id. (Mr. Doran), ation claim. See to provide failure court with (Ms. (Ms. Medina), Gonzales). Ms. Pat- complete history criminal where the ton’s “team” process argument does not court is only aware conviction Currier dilute established law. history.” Aplt. argu- Br. 45. This 3) ment overlooks the relevant facts Curri- Supervisor’s direction er, responsible where Doran was held attempts distinguish Patton next placement for a in part decision because he Currier because Mr. Doran’s supervisor, failed disclose relevant information re- Gonzales, him direct to recom- garding Vargas’s caregiv- fitness as a *25 custody, mend whereas Ms. Patton’s su- er—his pay failure to child support. Simi- Ketema, pervisor, Ms. her to instructed do larly, here, stronger and even so. failed to disclose relevant information re- why We do not see this matters for a garding Mr. Duerson’s fitness —the details danger-creation claim based on Currier. regarding Mr. Duerson’s criminal convic- Currier that requisite establishes men- abusing care, tion for a in child his “multi- tal state for a claim is ple” abuse, other incidents of child
whether Ms. Patton
in
recklessly
“acted
supporting
other facts
only
he was not
disregard”
conscious
of a risk that was
T.D.,
unfit
for
posed
care
but also
or
“obvious
known.”
Currier
provide
does
S.Ct.
103
estab-
addition,
in
Currier
to the
Court
more than establish
In
extent
law.
did
lished
DeShaney
rights
left the
for
open
excep-
“at
door
T.D.’s substantive due
an
White,
danger,
high
generality.”
137 S.Ct.
tion based
state-created
level
omitted).28 It
“case
Tenth Circuit has
for that
(quotations
is a
test the
devised
broadly.
acting
exception
applied
has been
too
аn
similar
official]
where
precedent
...
violat-
should be reconsidered
held
have
Our
circumstances
Id. The law
case.
appropriate
an
ed” the Constitution.
and facts
of Currier
put
person
reasonable
I
on notice that her
Patton’s circumstances
DeShaney,
Court
Supreme
held
placement was
regarding T.D.’s
that social workers were not constitutional
unconstitutional. Id. failing
ly
protect
for
Joshua De
liable
III. CONCLUSION
father,
Shaney
Randy DeShaney.
DeShaney,
191,
U.S.
affirm the
court’s denial
S.Ct.
district
We
might
first
summary judgment.
learned
Joshua
Authorities
endangered
DeShaney’s
when
second
BRISCOE,
concurring.
Judge,
Circuit
to police
DeShaney
complained
wife
Joshua,
prior
causing
I
bound
odr
Id. at
agree
we are
marks.
had hit.
Doran,
ruling
Winnebago County
242 F.3d
998. “The
Currier v.
S.Ct.
2001).
(DSS)
(10th
However; I believe Curri-
Department
Cir.
Social
inter
Services
directly
it
[DeShaney],
he
wrongly
er
decided because
but
the ac
viewed
denied
cusations,
Supreme
prece-
pursue
Court’s
not
them
conflicts with the
DSS did
Winnebago County
DeShaney
year later,
A
v.
Id.
ad-
Joshua was
further.”
dent
Booker,
for
relied
counsel Ms. Pat
lished
It
28. On
law.
v.
Schwartz
(10th
2012),
App.
under Fed. R.
P.
clearly
ton submitted a letter
F.3d 573
Cir.
for
28(j), advising
clerk
this court's
1187-88,
circuit
established law.
2017 WL
Dahn at
16-1059,
Amedei,
No.
decision Dahn v.
special-
3470142 at *6.
held that the
Schwartz
(10th
Aug.
1237 to a hospital “multiple mitted local that Joshua ill was too to see her. Id. In abrasions,” 1984, examining bruises and the DeShaney March beat Joshua.so se- of physician suspected verely notified DSS child that Joshua permanent suffered Id, “immediately damage. Id. DSS brain abuse. obtained an “DeShaney was subse- from juvenile plac- quently order a court Wisconsin tried and convicted of child abuse.” Joshua in ing temporary custody of the Id.
hospital.” Id. § Joshua and brought his mother 1983 county
The
convened a
against
County
then
“‘Child
claims
and' DSS em
of
consisting
pediatri-
Protection
ployees alleging
defendants “had
Team’—
cian,
detective,
psychologist,
deprived
police
liberty
of his
Joshua
without due
caseworkers,
county’s lawyer,
process
law,
of
several DSS
of
rights
violation
his
hospital
Amendment,
various
personnel
by
consid- under
Fоurteenth
fail
—to
ing
protect
er Joshua’s situation.” Id. The Team de-
against
intervéne to
him
of
cided
“there was insufficient
risk
his
evidence
violence at
father’s
hands
of child abuse to
they
retain Joshua
the which
knew or should have known.”
court,”
custody
193,109
of the
at
998. They
but
“recommend
Id.
S.Ct.
claimed that
measures,
Joshua,
“special relationship”
in-
protect
several
existed between
cluding enrolling
a preschool pro-
him in
Joshua and the State “because the State
providing
gram,
knew that
a special danger
father with
Joshua faced
certain
services,
counseling
hands,
encouraging
abuse at his
specifically
father’s
girlfriend
proclaimed, by
deed,
father’s
out of
by
move
word and
its in
DeShaney promised
cooper-
protect
Id.
tention to
him
home.”
that dan
197,
ger.”
these
Id. at
109
(quoting
ate
recommendations.
Id.
S.Ct. 998
DeShaney,
13-20,
“Based
Brief for
recommendation
Petitioners
Team,
998,
Child Protection
489
U.S.
109 S.Ct.
103 L.Ed.2d
(No. 87-154),
880157).
protection
child
case
WL
Specif
-and
dismissed
here,
ically,
Joshua to
returned
his-fa-
as is most relevant
the DeSha
ney plaintiffs
briefing
ther.” Id.
asserted
their
county
that the
had violated Joshua’s due
incident, a
Following this
DSS case-
because,
alia,
rights
it
process
inter
DeShaney
visited the
home month-
worker
“handed him
to his abusing
back
father
ly.
suspicious
“[S]he
a number
observed
abusing girlfriend.”
and the father’s
Brief
head;
injuries
Joshua’s
she also noticed
added).
(emphasis
for Petitioners at 5
school,
that he
been enrolled
girlfriend
Supreme
began, by discussing
moved out.”
Court
192-93,
scope
process
She
S.Ct.
recorded
substantive due
observations, “along
these
with her con-
claims. “The Due Process
of the
Clause
tinuing suspicions
provides
that someone in the De- Fourteenth
that ‘[n]o
Amendment
Shaney
physically abusing
any
life,
household
... deprive
person
State shall
Id. at
During
liberty,,
property,
Joshua.”
state actor footnote, added). In a we (emphasis 919-20 vulnerability the plaintiffs dan creased (4) “plaintiff that was a ger way”; elaborated: in some specifically defin of a limited member the Plaintiffs It is conduct true that (5) actor’s “con that the state able group”; by a Do- partially of is failure complain risk of act,on put plaintiff duct substantial allegations particular ran to harm”; immediate, serious, proximate investigate failure-to alle- Doran’s abuse. known”; (6) or “the obvious that risk was gations of abuse while the children recklessly (7) in that actor “acted state custody be distin- legal in state should risk”; disregard conscious that however, claim guished, . a that from conduct, total, “such when viewed is that children to rescue the state failed .once of B.I.C. shocking.”1 Estate v. conscience Vargas. given Do- legal custody was Gillen, (10th 2014) 1099, 1105 Cir. 761 F.3d allegations of investigate ran’s failure Gillen, of B.I.C. 710 (quoting v. Estate general be viewed abuse should (10th 2013)), Although Cir. F.3d context of state’s affirmative conduct several Doran’s meets I doubt that conduct from their removing the -in children first, elements, I focus on the of these here placing children with mother and conduct. affirmative their father. element, this respect to we held With n.7. Id. responsible for Doran “was Currier that matter, I it general As a find hard grant Court’s decision to the Children’s can be “re- conclude a social worker custody, through Vargas legal either sponsible independent for” decision and, investigate to the failure ultimately change judge who orders through his affirmative recom- court or we,assume But, custody. such re- .even if (em- at 919 mendation.” F.3d exists, transform sponsibility we cannot added). basis The factual phasis into affirmative to act omissions failures that Doran failed to tell the conclusion was them “in merely by considering Vargas’s history of Court about Children’s of’ recom- general context irresponsibility, further financial failed to only affirmative act The mendation. Vargas and his investigate after bruises recom- could in Currier is the be found an explanation, offered failed fiancée which, itself, no my view is mendation allegation investigate that Var- Juarez’s recommen- from affirmative different punished gas’s fiancée had DeShaney be re- that Joshua dation dunking them a bathtub full water. - . custody. turned his father’s omission's, not Notably, are all these liability If attaches to such “Do- then stated that acts. We affirmative recommendation, any future harm or increased the ran ‘created place- a child in the recommended befalls danger’ vulnerability to plaintiff[s’] be the basis for a substantive ment could investigate through his the nu- failure process against- the social work- due claim allegations of abuse bruises and merous perma- This the state the court order er. rule makes responsibility and his (10th 2012) (recognizing the omis- have to these first two elemеnts referred We .Cir. six- "preconditions” preconditions must be met before sion of these two may allege plaintiff oversight a substantive due "generate[d] on the test had factor premised theory alike,” claim' of state-created because part counsel courts Gillen, F.3d danger. of B.I.C. v. Estate necessary preconditions are to invoke these Gray (10th 2014); Univ. v. Cir. danger theory). the state-created Hosp. Auth., n.8 672 F.3d Colo. of a guarantor' nent child’s safety.
Supreme has substan- Court told us that *30 process tive due does not reach so far. Stris, Geyser, Daniel Luke Peter K. DeShaney, 489 U.S. S.Ct. 998. Maher, LLP, Angeles, CA, Los Stris & Either is not recommendation Underwood, Jr., Earl Price Underwood & type conduct that can affirmative PC, AL, Riemer, Fairhope, Kenneth J. support a substantive violation due Riemer, J. Riemer Attorney Kenneth our test for a state-created Mobile, Law, AL, for Plaintiffs-Appellants. liability, theory which case Currier facts; on wrongly decided our Tompkins, Brent Chase T. Espy, Jason test for danger theory the state-created LLP, Bingham, Larry Balch & Brittain Supreme conflicts with the Court’s deci- Childs, Prueter, Charles Waller W. Lans- DeShaney, by liability sion imposing Davis, LLP, Birmingham, den Dortch & acts that not violate the Due do Process AL, Edwards, Wayne Ryan Derek Todd Clause the Constitution. Dortch Hambidge,. Lansden Waller &
Davis, LLP, Nashville, TN, for Defen- dants-Appellees. Melendez,
Brian Dykema Gossett, JOHNSON, Hill, PLLC, Aleida Aleida in Minneapolis, MN, f.k.a. for Amicus Curi- dividually on behalf all ae similar
ly individuals, Plaintiff-Appellant, situated WILSON, Before MARTIN and
v HIGGINBOTHAM,* Judges. Circuit . FUNDING, LLC, MIDLAND MARTIN, Judge: Circuit Defendant-Appellee. opinion, Our in this issued matter
Judy Brock, individually N. be May has been reversed now similarly situ half of a class others Supreme the United States Court. Our Plaintiffs-Appellants, ated, Cunningham, Donald VACATED, opinion is therefore v action is remanded to District Court . judgment reinstatement of the in favor LLC, Funding, Resurgent of Midland Cap- Resurgent Capital Services, Services, L.P., Funding, ital and 'LVNV L.P., Funding, LLC, LVNV LLC, ruling in accordance of the with the Defendants-Appellees. Supreme Court. : 15-11240, No. No. 15-14116 of Appeals, United States Court Circuit.
Eleventh
(June 27, 2017) * ting by designation. Higginbotham, Honorable E. United Patrick Circuit, Judge for Circuit the Fifth sit- States