Ammons v. Washington Department of Social & Health Services

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CRYSTAL AMMONS, 
Plaintiff-Appellee,
v.
No. 09-36130
STATE OF WASHINGTON DEPARTMENT
OF SOCIAL AND HEALTH SERVICES;  D.C. No.
3:08-cv-05548-RBL
NORM WEBSTER, individually and
in his official capacity acting OPINION
under color of state law; MARY
LAFOND,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Argued and Submitted
November 5, 2010—Seattle, Washington

Filed August 17, 2011

Before: Betty B. Fletcher and Jay S. Bybee, Circuit Judges,
and Claudia Wilken, District Judge.*

Opinion by Judge B. Fletcher;
Partial Concurrence and Partial Dissent by Judge Bybee

*The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.

10947
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10951

COUNSEL

David P. Moody, Hagens Berman Sobol Shapiro LLP, Seattle,
Washington, for the plaintiff-appellee.

Ian M. Bauer and Patricia Campbell Fetterly, Office of the
Attorney General of Washington, Olympia, Washington, for
the defendants-appellants.

OPINION

B. FLETCHER, Circuit Judge:

Appellants Mary LaFond (“LaFond”) and Norman Webster
(“Webster”) (collectively “Appellants”), relying on qualified
immunity, appeal the district court’s order denying their
motion for summary judgment. Appellee Crystal Ammons
(“Ammons”) sued LaFond and Webster under 42 U.S.C.
§ 1983 for violating her Fourteenth Amendment substantive
due process right to safe conditions while in the custody of a
state-run mental institution. The district court denied Appel-
lants’ motion for summary judgment, rejecting both LaFond’s
and Webster’s claims of qualified immunity. It concluded that
the record, when read in the light most favorable to Ammons,
supported the claim that Appellants failed to exercise profes-
sional judgment with respect to Ammons’s safety. Appellants
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm in part and reverse in part.

I.

The events in this case took place at the Washington State
Department of Social and Health Services’s (“DSHS”) Child
10952 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
Study and Treatment Center (“CSTC”). The CSTC is a resi-
dential psychiatric hospital for severely emotionally and
behaviorally disturbed children, which, in 2001, served
approximately forty-eight inpatients. CSTC’s residents are
both patients at CSTC and in its custody.

Appellant Mary LaFond was CSTC’s Chief Executive Offi-
cer from 1995 to the end of March 2003. Appellant Norm
Webster worked intermittently at CSTC in various capacities
between 1970 and 1990. He then served as the Director of
Nursing Services from January to April 2003.1 In April 2003,
upon LaFond’s departure from CSTC, Webster succeeded her
as CSTC’s CEO.

On February 10, 2000, during LaFond’s tenure as CEO, she
received a letter from CSTC Director of Nursing Services,
Mary Claire Rutherford, which raised, among other things,
concerns about improper clinical staff handling of reported
sexual incidents in the resident cottages.

In early 2001, also during LaFond’s tenure, a patient at
CSTC (“Resident A”) alleged that a male staff member
named Anthony Grant had sexually molested her. These alle-
gations were reported to Child Protective Services (“CPS”)
and, according to LaFond, Grant’s access to the female
patients was restricted during the resulting investigation. CPS
conducted interviews with Resident A, Grant, other staff, and
at least one patient. Resident A repeated to the CPS investiga-
tor that Grant had molested her. While later speaking with Dr.
Jan Bacon, the resident psychologist, however, she recanted
her accusation, stating at the same time that she was upset
about losing contact with Grant. After LaFond informed the
CPS investigator that Resident A had recanted, CPS con-
cluded that the allegations were “unfounded” and closed the
investigation.
1
Webster left in February of 1990 and returned in January 2003. He was
not employed at CSTC in 2000 or 2001.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10953
In October 2001, after CPS closed its investigation of
Grant, Crystal Ammons was admitted to CSTC. Ammons was
a thirteen-year-old girl who had become a dependent of the
State of Washington at the age of four. Prior to her placement
at CSTC, Ammons had been raised by her maternal grand-
mother and then by an aunt and uncle; she was removed from
her aunt and uncle’s care after she reported that her uncle had
sexually abused her. Ammons’s uncle was ultimately con-
victed of molesting her. She was moved into foster care in
March 1995, at age seven. Between the ages of seven and
eighteen, Ammons was placed in various residential care
facilities and psychiatric hospitals, one of which was CSTC.2
In October 2001, when she began residing at CSTC, Ammons
was in the foster care of social worker Corrie Tienhaara
(“Tienhaara”) and her family.

While Ammons was at CSTC, she stayed in regular contact
with Tienhaara, who became concerned about Ammons’s pre-
occupation and seemingly close relationship with Grant. Tien-
haara’s concerns grew upon learning that Grant had given
Ammons gifts, including a stuffed animal and compact discs.
Tienhaara visited CSTC for the first time in November 2002,
at which time she communicated her concerns about Grant to
Ilys Hernandez (“Hernandez”), the head of Ammons’s cottage
at CSTC. Tienhaara voiced her concerns in a straightforward
manner, and she specifically requested that Grant not be per-
mitted to be alone with Ammons. In response, Hernandez told
her that Grant was never alone with Ammons and that CSTC
had a strict policy against male counselors being alone with
female patients. Hernandez did not reveal that any other alle-
gations of abuse had been made against Grant.

In March 2003, Hernandez accompanied Ammons to Tien-
haara’s home in North Dakota, in preparation for her dis-
2
By the time Ammons aged out of the system at age eighteen, she had
resided in fifteen different foster homes, residential facilities, and psychi-
atric hospitals.
10954 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
charge from CSTC and her transition back into Tienhaara’s
family. There, Tienhaara repeated her concerns to Hernandez,
and was again reassured that Grant and Ammons would not
be alone together. In late March 2003, however, Tienhaara
learned Ammons was scheduled to go on a one-on-one outing
with Grant. When she called Hernandez to voice her objec-
tion, she was told that the facility “[wouldn’t] go ahead and
approve that.”

Ammons’s file reveals that, during her time at CSTC, the
CSTC staff documented 188 incidents of Ammons’s flirta-
tious behavior with male staff. The notes associated with her
evaluations indicate that she had “boundary problems” with
the staff, and they direct staff members to closely monitor her
interactions specifically with male employees. Throughout the
early part of 2003, before Ammons left the facility, it was fur-
ther noted that Ammons had a “crush” on one of the male
staff members, and that she was spending time with him alone
and seeking out his attention.

Jessica Ramsey, a fellow patient at CSTC who was friends
with Ammons, testified that Grant was “extremely flirtatious”
with her and Ammons, and that their flirtatious interactions
were apparent to Hernandez and Dr. Bacon. She further testi-
fied that it was obvious how infatuated Ammons was with
Grant, but that no restrictions were ever placed on Grant’s
interactions with Ammons or Ramsey. Rather, according to
Ramsey, the frequency of Grant’s interactions with her and
Ammons continued to escalate. Ramsey stated that she and
Ammons would pass notes through other staff members to
Grant so often that “the night shift was getting mad” at her.
She also testified that she and Ammons had “entire sections
on the walls of [their] room (where any staff member could
see them) . . . dedicated to Mr. Grant,” where they posted flir-
tatious signs such as “Hottie Alert Tony,” and “Tony’s Finer
than Silk.”

According to Ramsey, Grant gave Ramsey and Ammons
pictures of himself, letters, stuffed animals for Valentine’s
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10955
Day, music CDs and, at least to Ramsey, his personal cell
phone number. On one occasion, Grant painted Ramsey’s
nails. Ramsey testified that she was often alone with Grant in
the cottage’s TV room or in her “pod,” a part of the cottage
with female bedrooms, including hers. She further testified
that she “once or twice” saw Grant and Ammons leave
through the pod door to go to the “canteen,” a part of the
building with a soda machine and a snack machine.

On April 18, 2003, Ammons was discharged from CSTC
and went to live in North Dakota with Tienhaara and her fam-
ily. After Ammons left CSTC, Tienhaara discovered that she
and Grant were corresponding via e-mail. These e-mails were
extremely flirtatious and revealed that Ammons and Grant
were romantically involved. For example, Ammons signed
her e-mails “Crystal Grant,” and Grant once wrote, “Wanna
go to the canteen tonight? ;) (I wish!).” Shortly after Tien-
haara discovered the e-mails, Ammons told her that Ammons
and Grant had been sexually involved from January 2003
until she left CSTC. The relationship Ammons described
included sexual intercourse and other types of sexual activity
that took place on multiple occasions in the “canteen area.” At
the time this sexual relationship began, Grant was twenty-nine
years old, and Ammons was fourteen. Tienhaara contacted
CSTC about this molestation, and CSTC placed Grant on
leave. After investigating the matter for several months,
CSTC concluded that Grant had, while on duty, engaged in
sexual intercourse with Ammons during her residence at the
facility. CSTC eventually fired Grant.3

Ammons sued DSHS, LaFond, and Webster in Pierce
County Superior Court, alleging that (1) DSHS was negligent
3
Grant was criminally charged with three counts of rape of a child in the
third degree and one count of child molestation in the third degree. On
February 22, 2005, Grant entered an Alford/Newton plea to the charge of
communication with a minor for immoral purposes in violation of Wash-
ington law.
10956 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
under state law for failing to protect her from the “known
dangerous proclivities of Anthony Grant,” and (2) LaFond
and Webster were deliberately indifferent to Ammons’s
safety, in violation of 42 U.S.C. § 1983. The case was
removed to federal district court. After the exchange of some
discovery, Ammons moved for summary judgment. Appel-
lants cross-moved for the same, arguing that they were enti-
tled to qualified immunity.

The district court denied all parties’ motions for summary
judgment, finding that issues of material fact remained unre-
solved. The court held that LaFond and Webster were not,
under Neely v. Feinstein, 50 F.3d 1502 (9th Cir. 1995), enti-
tled as a matter of law to qualified immunity. The court rea-
soned that, viewed in the light most favorable to Ammons, the
evidence established that LaFond and Webster had “numerous
warnings” of the risk posed to Ammons by Grant, and that
Appellants “did literally nothing” in response to those warn-
ings. LaFond and Webster timely appealed. The issue of
whether they are entitled to qualified immunity is now before
us.

II.

We first resolve whether we have jurisdiction to hear this
interlocutory appeal. “[A] district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of
law, is an appealable ‘final decision’ within the meaning of 28
U.S.C. § 1291 notwithstanding the absence of a final judg-
ment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This is
because “[w]hen summary judgment is denied to a defendant
who urges that qualified immunity shelters her from suit, the
court’s order finally and conclusively disposes of the defen-
dant’s claim of right not to stand trial.” Ortiz v. Jordan, 131
S. Ct. 884, 891 (2011) (citing Mitchell, 472 U.S. at 527)
(internal quotation marks and alteration omitted). “[T]he
appealable issue is a purely legal one: whether the facts
alleged [ ]by the plaintiff . . . support a claim of violation of
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10957
clearly established law.” Mitchell, 472 U.S. at 528 n.9.
Accordingly, “[o]ur jurisdiction in these matters generally is
limited to questions of law and does not extend to claims in
which the determination of qualified immunity depends on
disputed issues of material fact.” Jeffers v. Gomez, 267 F.3d
895, 903 (9th Cir. 2001); see also Ortiz, 131 S. Ct. at 891.
“Where disputed facts exist, however, we can determine
whether the denial of qualified immunity was appropriate by
assuming that the version of the material facts asserted by the
non-moving party is correct.” Jeffers, 267 F.3d at 903 (cita-
tions omitted).

In this appeal, we are asked to resolve multiple issues of
law, including the correct standard under which to assess
alleged violations of Fourteenth Amendment substantive due
process rights by state hospital administrators, and the extent
to which this law is clearly established. We must also deter-
mine whether the facts alleged and shown by Ammons, some
of which are in dispute, support a constitutional violation.
Accordingly, we have jurisdiction to hear this appeal, and we
evaluate Appellants’ claims of qualified immunity by resolv-
ing all factual disputes in Ammons’s favor. See id.

III.

We review de novo a district court’s denial of qualified
immunity by summary judgment. Davis v. City of Las Vegas,
478 F.3d 1048, 1053 (9th Cir. 2007) (citing Bingham v. City
of Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003)). In
reviewing the denial of qualified immunity, we consider the
“purely legal issue of whether facts alleged by the plaintiff
support a claim of violation of clearly established law” such
that appellants are not immune from suit. Lytle v. Wondrash,
182 F.3d 1083, 1086 (9th Cir. 1999) (internal citation and
quotation marks omitted).

[1] Qualified immunity shields state officers from civil lia-
bility for damages unless (1) the facts alleged by the plaintiff
10958 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
establish a violation of the plaintiff ’s constitutional rights;
and (2) the constitutional right in question was “clearly estab-
lished” when the defendant committed his alleged miscon-
duct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808,
815-16 (2009). Put another way, “[t]he principles of qualified
immunity shield an officer from personal liability when an
officer reasonably believes that his or her conduct complies
with the law.” Id. at 823. Courts are given the discretion to
decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Id. at 818.

Here, it is difficult to assess whether the facts alleged by
Ammons establish the alleged constitutional violation without
setting forth the governing law. Therefore, we first examine
the clearly established law with respect to the alleged Four-
teenth Amendment violation, and then determine whether the
facts before us support such a violation.

IV.

For a constitutional right to be “clearly established,” “[t]he
contours of the right must be sufficiently clear that a reason-
able official would understand that what he is doing violates
that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In other words, “in light of pre-existing law the unlawfulness
must be apparent.” Id.

A. The Constitutional Right

Although Ammons asserts in her complaint that Appellants
violated her constitutional right to “equal protection, as well
as [her] constitutionally protected right to procedural and due
process of law,” the alleged facts and her contention that
LaFond and Webster were “deliberately indifferent” to her
safety make clear that her § 1983 claim is based on her Four-
teenth Amendment substantive due process right to safe con-
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10959
ditions while involuntarily committed to the custody of a state
actor.

[2] Involuntarily committed patients in state mental health
hospitals have a Fourteenth Amendment due process right to
be provided safe conditions by the hospital administrators. In
Youngberg v. Romeo, 457 U.S. 307, 310 (1982), the Supreme
Court was confronted with an involuntarily committed mental
patient in a state hospital who alleged that, while at the hospi-
tal, he had been injured on numerous occasions “by his own
violence and by the reactions of other residents to him.” The
patient, Romeo, sued three hospital administrators for failing
to institute appropriate procedures to prevent the injuries they
“knew, or should have known” Romeo was receiving, thereby
violating Romeo’s rights under the Fourteenth Amendment.
Id. Noting that “the right to personal security constitutes an
‘historic liberty interest’ protected substantively by the Due
Process Clause,” the Court held that “[i]f it is cruel and
unusual punishment to hold convicted criminals in unsafe
conditions, it must be unconstitutional to confine the involun-
tarily committed — who may not be punished at all — in
unsafe conditions.” Id. at 315-16 (citations omitted).

[3] According to Youngberg, the Constitution requires that
hospital officials, in order to protect a patient’s right to safe
conditions, exercise professional judgment. Id. at 321-22. The
Court explained that liability may be imposed for failure to
provide safe conditions “when the decision made by the pro-
fessional is such a substantial departure from accepted profes-
sional judgment, practice, or standards as to demonstrate that
the person responsible actually did not base the decision on
such a judgment.” Id. at 323.4 Youngberg, then, created a stan-
4
Although the issue was not directly before it, the Court also held that
the district court should have admitted expert testimony that was excluded
because such testimony may have been “relevant to whether [the adminis-
trators’] decisions were a substantial departure from the requisite profes-
sional judgment.” Id.
10960 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
dard whereby whether a hospital administrator has violated a
patient’s constitutional rights is determined by whether the
administrator’s conduct diverges from that of a reasonable
professional. We refer to this as the “Youngberg professional
judgment standard.” In distinguishing this standard from the
“deliberate indifference” standard used in Eighth Amendment
cruel and unusual punishment cases, the Youngberg Court
noted that “[p]ersons who have been involuntarily committed
are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement
are designed to punish.” Id. at 321-22 (emphasis added). The
Court approvingly cited the Youngberg professional judgment
standard in County of Sacramento v. Lewis, 523 U.S. 833, 852
n.12 (1998), noting that “[t]he combination of a patient’s
involuntary commitment and his total dependence on his cus-
todians obliges the government to take thought and make rea-
sonable provision for the patient’s welfare.”5
5
The dissent’s formulation of the Youngberg professional judgment
standard is misleading. According to our dissenting colleague, we should
examine only whether LaFond exercised any professional judgment at all,
because, under Youngberg, “exercising any professional judgment will
shield a state hospital professional from § 1983 liability.” The Youngberg
standard, however, is not so permissive. In requiring that “professional
judgment” be exercised, the Court made clear that the judgment of profes-
sionals must not depart substantially from “accepted professional judg-
ment, practice, or standards,” 457 U.S. at 323, with respect to protecting
a patient’s right to safety, id. at 322. Just “any” judgment, therefore, will
not do; the official must exercise judgment that comports with an objec-
tive standard. Id. at 322-23 (noting that the courts must make certain that
“professional judgment in fact was exercised”).
Moreover, the dissent misconstrues the nature of the presumption artic-
ulated in Youngberg. While Youngberg does state that decisions made by
a public official are presumptively valid as an initial matter, the case also
makes clear that the method by which that presumption is overcome is the
application of the Youngberg professional judgment standard itself, that is,
by assessing whether the actions of the professional meet this objective
standard. Id. at 323. In other words, the Youngberg professional judgment
standard does not contain any presumption in favor of government offi-
cials; instead, the standard is the mechanism by which we assess whether
the presumption has been overcome. Our task, therefore, is to apply the
Youngberg professional standard to determine whether the presumptive
validity of LaFond’s and Webster’s conduct has been rebutted. This is pre-
cisely what we do in this opinion.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10961
[4] Relying upon Youngberg, the Ninth Circuit has repeat-
edly recognized the Fourteenth Amendment right of involun-
tarily committed patients to safe confinement conditions. See
Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995) (“A
mental patient’s right to personal security in the institution to
which he or she is committed was clearly established in 1988
[the year of the alleged violation].”); Flores by Galvez-
Maldonado v. Meese, 942 F.2d 1352, 1363 (9th Cir. 1991)
(describing Youngberg’s holding as “when individual is in
state custody, state may acquire constitutional duty to ensure
individual’s safe care”); Estate of Conners by Meredith v.
O’Connor, 846 F.2d 1205, 1207 (9th Cir. 1988) (holding that,
under Youngberg, patients who have been involuntarily com-
mitted to a state mental hospital retain liberty interests in
safety). Therefore, at the time the events alleged in this case
took place, it was clearly established that LaFond and Web-
ster, as state officials, had a duty to exercise professional
judgment to provide safe conditions for Ammons and the
other patients at CSTC.

B. Violation of the Constitutional Right

In light of the clearly established law that hospital officials
must provide safe conditions for involuntarily committed
patients, we now examine the circumstances under which
state hospital officials may be held responsible for failing to
do so.

We previously applied the Youngberg professional judg-
ment standard in Neely, 50 F.3d at 1507, a case with facts
remarkably similar to those presented here. There, a female
patient (Neely), who had been allegedly molested by a hospi-
tal staff member (Terry), sued state mental hospital adminis-
trators and staff. Neely named as defendants Feinstein, the
hospital superintendent; Hosley, the Director of Nursing;
Murgo, the chairperson of the committee assigned to investi-
gate prior accusations against Terry; and Brown, the building
supervisor. Id. at 1506-07. Prior to Neely’s allegations, two
10962 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
other patients had also alleged that Terry had sexually
assaulted them. Id. at 1505. In response to both prior inci-
dents, Feinstein convened a committee to investigate the alle-
gations and, both times, the committee determined “there was
no evidence to substantiate the allegations against Terry.” Id.
at 1506. After the second investigation concluded, however,
Feinstein issued a reprimand to Terry for showing “very poor
judgment” in placing himself in situations where he was alone
with female patients. Id. Hosley issued an oral directive bar-
ring Terry’s assignment to work in the women’s ward and “in
one-to-one seclusion” with female patients. Hosley later lifted
this restriction, and Brown assigned Terry to work in one-on-
one seclusion with Neely. It was then that Terry’s alleged
assault of Neely occurred. Id. at 1506.

In our analysis, we first acknowledged that the Youngberg
professional judgment standard served as clearly established
law at the time of the alleged abuse. Id. at 1507. We recog-
nized that, in O’Connor, 846 F.2d at 1208, another case
involving a patient grievously harmed in a state-run mental
hospital, we applied the objective Youngberg standard and
equated it “ ‘to that required in ordinary tort cases for a find-
ing of conscious indifference amounting to gross negli-
gence.’ ” Neely, 50 F.3d at 1507 (quoting O’Connor, 846 F.2d
at 1208) (emphasis added).6

[5] We further explained that this “conscious indifference”
standard is not the same as the “deliberate indifference” stan-
dard used in the Eighth Amendment cruel and unusual pun-
ishment context and extended to alleged violations of pre-trial
6
As the dissent points out, in L.W. v. Grubbs, 92 F.3d 894, 897 (9th Cir.
1996), we disapproved of the use of a “gross negligence” standard in a
prison nurse’s § 1983 action against her supervisors for violation of her
substantive due process rights after an inmate allegedly attacked her. We
noted that Neely’s use of the term “gross negligence” was not necessary
to the decision, and should be limited to the claims of “captive” plaintiffs
“injured because of a miscarriage of the ‘professional judgment of a [gov-
ernment] hospital official.’ ” Id.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10963
detainees’ rights under the Fourteenth Amendment. Id. We
therefore rejected the argument that the applicable standard of
“conscious indifference” required the plaintiff to show that
the officials were “subjectively aware of the risk” posed to the
patient, noting that although a “subjective awareness require-
ment comported with the Eighth Amendment’s proscription
against cruel and unusual punishment,” there is no such
requirement to enforce patient rights arising from the Four-
teenth Amendment. Id. at 1508.7 Accordingly, we recognized
that the Youngberg professional judgment standard is “neces-
sarily an objective test.” Id. (emphasis added).8

[6] We concluded that, at the time of the hospital officials’
actions, the law in this circuit clearly established that “(1)
patients have a constitutional right to be safe in the state insti-
tution to which they are committed, and that (2) in the face
of known threats to patient safety, state officials may not act
(or fail to act) with conscious indifference, but must take ade-
7
Indeed, Neely further notes that even our Fourteenth Amendment juris-
prudence that applies the “deliberate indifference standard,” rather than
the “conscious indifference” standard applicable here, has never “required
officials to have subjective awareness of the risk of harm in order to be
deemed ‘deliberately indifferent.’ ” Id. (citation omitted).
8
LaFond and Webster cite one of our recent decisions, Tamas v. Depart-
ment of Social & Health Services et al., 630 F.3d 833 (9th Cir. 2010), for
the proposition that deliberate indifference requires a plaintiff to show that
the official was subjectively aware of facts from which an inference of
substantial risk could be drawn. Tamas, however, interprets the “deliberate
indifference” standard in the specific context of the state’s obligation
toward foster children, consistent with the holdings in other circuits. Id. at
844-45. Tamas makes no reference to Youngberg, Neely, or any case
addressing the standard applicable to public hospital officials’ duty to
ensure the safety of their patients. Indeed, it is logical that the standard
governing the state’s duties with respect to foster children would differ
from that governing the state’s actions vis-a-vis hospital patients, as the
degree of control and day-to-day responsibility that the government exerts
over the latter is considerably higher. Therefore, Neely remains the con-
trolling law of this circuit for purposes of this case, and Tamas is inappo-
site.
10964 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
quate steps in accordance with professional standards to pre-
vent harm from occurring.”9 Id.

Pursuant to this framework, we affirmed the district court’s
denial of qualified immunity for Feinstein on the ground that
he summarily disregarded the risk that Terry, a hospital
employee previously accused of sexual molestation, would
sexually abuse female patients. The evidence supported a
finding that Feinstein failed to exhibit “vigilance in protecting
the safety of female patients, and that a reasonable hospital
official would have done much more to eliminate the risk that
Terry would sexually abuse female patients under the hospi-
tal’s care.” Id. at 1509.

Murgo, the chairperson of the committee convened to
investigate the prior allegations against Terry, was found
qualifiedly immune. Id. at 1511. We reasoned that, although
the committee did not interview certain witnesses, it did inter-
view those witnesses required by hospital regulations. Id.

Hosley, who informed the shift supervisors that Terry
should not be assigned to the women’s ward or to one-on-one
seclusion with female patients, was found qualifiedly
immune. Id. Although Hosley did not put this directive in
writing, she did not act unreasonably because Feinstein, her
supervisor, did not instruct her to do so. Id. Additionally,
there was no evidence that Hosley was informed of the evi-
9
This reference to “known threats” does not negate Neely’s clear
instruction that subjective awareness of risk is not required in the context
of this Fourteenth Amendment right. Hospital officials’ knowledge of par-
ticular threats to patient safety is certainly relevant to the reasonable pro-
fessional judgment standard against which their actions are assessed, that
is, to the determination of whether the officials have acted with conscious
indifference. Such knowledge, however, is not required to demonstrate a
violation. Accordingly, Neely merely acknowledges that Feinstein was
aware or should have been aware of the risk posed by Terry, which speaks
to the actions necessary for him to discharge his duty to act in accordance
with professional standards.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10965
dence of Terry’s prior sexual assaults, which Feinstein had
reviewed. Id. Hosley’s lack of awareness of the prior accusa-
tions against Terry was relevant to our assessment of the rea-
sonableness of her actions, although it was not the basis for
finding her qualifiedly immune.

Brown, the building supervisor assigned to the women’s
ward, was found qualifiedly immune because he had assigned
Terry to the women’s ward only after the restriction was lifted
and in light of a staff shortage. Id. We held that Brown could
not have been said to have acted unreasonably. Id.

In sum, we held the lower-level supervisors qualifiedly
immune due to their compliance with hospital regulations and
supervisory guidance and directives (to the extent such direc-
tives were issued), and because their conduct was reasonable
in light of practical considerations. Feinstein was found sub-
ject to liability because, as head of the hospital, he failed to
act to protect the safety of patients through effectively guiding
lower-level supervisors to reduce the safety risk posed by
Terry. Contrary to the dissent’s assertions, there is nothing
contradictory about this resolution.

[7] Youngberg and Neely serve as pre-existing, clearly
established law as to what conduct supports infringement of
the Fourteenth Amendment rights of involuntarily committed
hospital patients. At the time of the alleged events, then, it
was clear that the actions of LaFond and Webster violated the
Constitution if they ran afoul of the objective Youngberg pro-
fessional judgment10 standard as applied in Neely.11
10
Thus, the dissent’s insistence that courts “have no business prescribing
managerial behavior for mental institutions” is more properly directed at
the decision in Youngberg than to our denial of qualified immunity. The
Supreme Court has made it our business to assess whether a public hospi-
tal administrator’s alleged failure to provide safe conditions gives rise to
a constitutional violation under the Youngberg professional judgment stan-
dard. It also made it the business of juries to decide whether the standard
has been violated.
11
The dissent goes to great lengths to unnecessarily obscure Neely’s
10966 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
V.

[8] We now determine whether the facts of this case, as
construed in a light most favorable to Ammons, could be
found to amount to a violation by LaFond or Webster of
Ammons’s constitutional rights. In other words, we must
determine whether the facts alleged, if proved, are sufficient
to support a jury finding that the official’s conduct was “such
a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a judg-
ment.” Youngberg, 457 U.S. at 323. We review the allegations
with respect to LaFond and Webster separately.

A. LaFond

[9] Here, the primary evidence that supports LaFond’s lia-
bility is (1) that she knew that Grant had been previously
investigated for sexual abuse of a female patient yet she
allowed Grant to continue working in a cottage housing
female patients without taking steps to ensure that he was not
given repeated opportunities to be alone with one or more of

analysis and to discredit it as clearly established law. As we have dis-
cussed in this opinion, Neely’s reconciliation of the myriad of legal stan-
dards applied in the context of the Fourteenth Amendment is, to be sure,
complex, but it nonetheless remains consistent with our precedent.
And regardless of this complexity, Neely makes crystal clear its conclu-
sion that Feinstein’s failure to act to ensure Neely’s safety, and his specific
failure to take into account the previous accusations against Terry, support
a violation of the Youngberg standard. This conclusion, at least, serves as
clearly established law. Thus, the opinion’s conclusion with respect to
facts remarkably similar to those here, if not its legal analysis, is undoubt-
edly sufficient to put LaFond on notice as to the contours of her constitu-
tional duty with respect to patient safety. See Anderson, 483 U.S. at 640.
Unlike our dissenting colleague, we do not feel free to simply disregard
Neely based on our own views of the strength of its reasoning. We are
bound by this precedent and will faithfully apply it.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10967
these patients; and (2) that she took no action in spite of
increasing and documented evidence of the inappropriate rela-
tionship between Ammons and Grant.

First, as to the prior accusation made against Grant, the
record reflects that Resident A repeatedly stated that Grant
had touched her inappropriately, but later recanted her allega-
tions when speaking to Dr. Bacon. At no point, however, did
Resident A recant her testimony to outside investigators. That
she recanted to Dr. Bacon in a moment when she was admit-
tedly upset about losing contact with Grant, at the very least,
raises doubts as to CPS’s conclusion that the accusations were
“unfounded.” Despite these facts, of which LaFond was
aware, LaFond permitted Grant to continue working unsuper-
vised with the female patients in their residential cottages, at
times in one-on-one situations.12 LaFond declared that it was
her general practice, when an accusation of staff abuse was
determined unfounded, to instruct the supervisors to watch the
staff member more closely and to counsel him or her about
any high risk behavior. In neither her declarations nor her
deposition testimony, however, does LaFond state that, after
Resident A’s accusation, LaFond instructed Grant’s supervi-
sors to watch him more closely or provided Grant with coun-
seling about any high risk behavior.

Second, the facility that LaFond was charged with oversee-
ing contained overwhelming information and signals that
Grant was pursuing improper relationships with female
patients and with Ammons specifically. Ammons flirted with
Grant so regularly and extensively that CSTC staff frequently
commented on it, both in her files and to Ammons herself. In
12
We note that LaFond’s awareness of the prior accusations of sexual
abuse against Grant speaks to the assessment of whether LaFond acted in
accordance with objective professional standards, that is, to what a reason-
able official would do to ensure the safety of the patients at CSTC. In not-
ing this awareness, we do not imply that subjective awareness of the
particular risk is required to demonstrate a violation. See Part IV.B, supra.
10968 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
fact, Ammons’s file contained 188 references to her improper
interactions with male staff, as well as documentation about
her feelings toward Grant in particular. Ammons and Ramsey
exchanged love letters with Grant, made posters for Grant,
and received pictures of Grant, which they “plastered” on “en-
tire sections on the walls of [their] rooms” where they were
highly visible to any staff member. Notably, Ammons’s foster
mother repeatedly voiced her concerns about the relationship
between Ammons and Grant to CSTC, and specifically asked
that Grant not be permitted to be alone with Ammons.
Ammons points out that CSTC is a small community, and that
LaFond had every opportunity to become aware of the
escalating impropriety between Grant and Ammons, and to
take action accordingly. LaFond apparently failed to take
affirmative steps to inform herself of the situation at CSTC,
even after Rutherford had explicitly warned her about the
staff’s failure to respond appropriately to reports of sexual
impropriety.

[10] We hold that, under these facts, a fact-finder could
determine LaFond’s actions demonstrate a substantial depar-
ture from reasonable professional judgment. LaFond was
aware that Grant was previously accused of sexually molest-
ing a minor female patient. The investigation concluded that
the accusations were unfounded only because the accuser
unreliably recanted. Under Neely, a jury could find that a rea-
sonable administrator, exercising professional judgment with
respect to providing safe conditions, would have taken Resi-
dent A’s allegation into account when assigning and supervis-
ing staff members in cottages where female patients resided.
While LaFond had no cause to discipline Grant, because he
had been exonerated of the molestation charge, she certainly
had reason, in light of her duties with respect to the safety of
her patients, to manage and monitor his duties more carefully.
Instead, LaFond allowed Grant to gain unfettered and
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10969
unmonitored access to the female residents, and to spend time
with them on a one-on-one basis.13

Even more compellingly, LaFond and the rest of the CSTC
staff were practically inundated with signs and indications
that Ammons and Grant were engaged in an inappropriate
relationship. Ammons’s lack of boundaries with male staff,
and her preoccupation with Grant in particular, were well doc-
umented in her files. Her particular relationship with Grant
was evidenced by her behavior and the display on the wall of
her room, so much so that her crush was apparent to other
patients and staff members. LaFond had every reason to mon-
itor the relationship between Grant and Ammons in light of
Rutherford’s warnings and Tienhaara’s repeatedly voiced
concerns.

Regardless of whether LaFond was subjectively aware of
13
We fully acknowledge that Grant was exonerated as an official matter.
This certainly does not mean, however, that, as a practical matter, his one-
on-one seclusion with minor female patients did not in any way pose a risk
to their safety. Indeed, Grant’s subsequent sexual molestation of Ammons,
like Terry’s molestation of Neely, only confirms this. We accordingly rec-
ognize that a jury could conclude that a reasonable hospital administrator,
in performing his or her constitutional duty with regard to patient safety,
would have done more to protect vulnerable female patients.
Contrary to the dissent’s argument, we do not hold that the Due Process
Clause requires hospital administrators to take any action that the law oth-
erwise forbids. We do not even suggest that the administrator must dis-
close previous accusations of sexual misconduct to any other party,
include the accused’s name on any public database, or impose any adverse
consequence as a result of the accusation. Thus, the dissent’s discussion
of various Washington statutes and our holding in Humphries v. County
of Los Angeles, 554 F.3d 1170 (9th Cir. 2009), rev’d in part on other
grounds, 131 S. Ct. 447 (2010), is irrelevant. The dissent also invokes,
puzzlingly, Burlington Northern v. White, 548 U.S. 53 (2006), a Title VII
retaliation case. We do not see how the standard for retaliatory adverse
employment actions in the Title VII context is relevant here. Id. at 66 (not-
ing that “Title VII primarily seeks to protect . . . victims of race-based,
ethnic-based, religion-based, or gender-based discrimination”).
10970 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
these signals, a jury could conclude that a reasonable hospital
administrator in LaFond’s position of authority, knowing of
the previous accusations against Grant and of Rutherford’s
warning, would have taken steps to become aware of what
was happening through a basic review of Ammons’s file or by
simply walking through the facility. A jury could additionally
find that a reasonable hospital administrator, exercising pro-
fessional judgment, would have taken steps to ensure that the
staff who worked closely with Grant appreciated the serious-
ness of the situation and brought these signs to the administra-
tor’s attention so that she could take the necessary steps to
prevent Grant from abusing his position. LaFond should have
at least taken steps to ensure that she was informed of specific
concerns voiced by parents such as Tienhaara so that she
could look into the matter further.14

[11] LaFond “bears the responsibility for taking adequate
steps to ensure that [her] subordinates” maintain the safety of
the patients pursuant to her orders and instructions because,
as the head of CSTC, LaFond “is the one who is ultimately
accountable for the safety of the patients.” Neely, 50 F.3d at
1510. Instead of taking steps to ensure that her subordinates
adequately monitored the relationships between staff and
patients, LaFond took literally no action whatsoever to pre-
vent Grant from engaging in an abusive relationship with
Ammons. Whether because of ignorance or a failure to fully
14
The dissent makes much of the distinction between action and inac-
tion, arguing that there exists an “infinite list of LaFond’s inactions toward
Ammons.” To clarify, because Youngberg makes clear that involuntarily
committed patients have an affirmative right to reasonable conditions of
safety, a state official’s inaction, to the extent that it speaks to his or her
failure to provide such conditions, is precisely what we must evaluate in
applying this standard. See Youngberg, 457 U.S. at 320 (“The question
then is . . . whether the . . . lack of absolute safety is such as to violate due
process.” (emphasis added)).
Because, as the dissent agrees, the record contains no evidence that
LaFond took steps to stay informed of any sexual impropriety between
staff and patients, we construe this deficiency in Ammons’s favor.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10971
appreciate the seriousness of the situation, LaFond allowed
this relationship to go on for months, unchecked and unmoni-
tored, and it was not until Ammons returned to her foster fam-
ily and continued to have contact with Grant that any action
was taken. We hold that, under the facts alleged and pro-
duced, LaFond’s apparent inaction and poor supervision with
respect to the safety of Ammons and the other female patients
support a finding that she failed to exercise professional judg-
ment,15 and thereby violated the Fourteenth Amendment.16
15
The dissent faults us for reaching this conclusion without reciting pre-
cisely the “accepted professional judgment, practice, or standards” for the
administration of residential health facilities for youths. If there existed
such a “golden code” of professional conduct against which to measure
LaFond’s actions, there would be no need for a jury at all, as we judges
could conclusively determine whether LaFond is liable. We accept, as the
dissent repeatedly recognizes, that a conclusive application of the Young-
berg standard will indeed require additional facts, expert testimony, and
a host of other evidence in order to definitively determine what a reason-
able professional would have done, that is, the standard against which to
conclusively measure LaFond’s actions. Youngberg, 457 U.S. at 323 n.31
(noting that expert testimony is relevant to whether a public employee
failed to exercise the requisite professional judgment). This is precisely
the role that a jury plays.
This is also why an award of summary judgment is unwarranted at this
early stage. Ironically, the dissent, like us, cannot articulate the code of
professional conduct for administrators of residential health facilities, and
yet the dissent somehow conclusively determines that, as a matter of law,
LaFond did not depart from any such code. In doing so, the dissent fails
to make all inferences and construe all facts in Ammons’s favor, as we
must.
Finally, the dissent ignores the testimony of multiple experts in the
record before us stating that LaFond’s performance fell well below the
standard of care required by law, policies, procedures, and practice. One
expert reports her professional opinion that the investigation of Resident
A’s accusation, and its resolution within the facility, were grossly inade-
quate. The expert points out that no monitoring or safeguards were put in
place, and Grant was allowed to be alone with female patients for whom
he was not responsible. This expert further notes a number of actions,
taken after Ammons’s molestation came to light, that should have been
taken after Resident A’s accusations. She finds the degree of inaction at
the facility “astounding” and “hard to fathom” in a professional situation,
10972 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
Indeed, we note the similarity between the evidence here
and that in Neely. Like superintendent Feinstein in Neely,
LaFond was aware that allegations of sexual abuse had been
brought against one of the hospital staff. And as in Neely,
these allegations triggered an investigation of the staff mem-
ber that determined that the allegations were not credible. In
both cases, the harm to the plaintiff resulted from the hospital
administrator’s failure to take meaningful steps to prevent the
formerly accused staff member from interacting one-on-one
with female patients. In Neely, we found these facts sufficient
to support a reasonable jury’s determination that Feinstein
failed to exercise professional judgment. The record in this
case presents even more evidence of such a failure on the part
of LaFond, as it additionally supports a claim that LaFond
remained unreasonably ignorant of or ignored the overwhelm-
ing evidence that Grant continued to flagrantly abuse his posi-
tion.17 Whereas Feinstein reprimanded Terry for poor

and she concludes that LaFond was “grossly and extremely negligent.”
We do not agree with the dissent that this testimony “should be afforded
minimal weight.” See Nolan v. Heald College, 551 F.3d 1148, 1154 (9th
Cir. 2009) (it is improper to weigh evidence on summary judgment).
16
In so holding, we hold LaFond accountable with respect to her own
failure to manage and supervise her employees. We do not, as the dissent
suggests, create § 1983 liability on the basis of respondeat superior. It is
well established that a supervisor may be held liable for a constitutional
rights violation based on his or her own neglect in failing to properly
superintend his or her subordinate’s duties. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1948 (2009). In Youngberg itself, the Court held that a failure to
institute appropriate procedures could give rise to liability under the Four-
teenth Amendment. 457 U.S. at 322-23. See also Simmons v. Navajo Co.,
609 F.3d 1011, 1020 (9th Cir. 2010) (“To survive summary judgment, the
[plaintiffs] must therefore adduce evidence that [the supervisors] them-
selves acted or failed to act unconstitutionally, not that some subordinate
did.” (emphasis added)).
17
The dissent chastises us for pointing out this additional factual support
for Ammons’s claim, arguing that no case, not even Neely, supports our
reasoning. We note in response that, under Neely, LaFond’s failure to con-
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10973
judgment and Hosley placed restrictions on Terry’s duties,
LaFond made no changes with respect to managing Grant.

[12] As a final matter, we note that Youngberg articulated
the professional judgment standard as the proper instruction
for the jury; our opinion merely recognizes that the ultimate
decision in this case should likewise go to a jury. Our holding
does not impose liability upon LaFond; nor does it, as the dis-
sent suggests, conclusively prescribe any particular adminis-
trative conduct.18 We hold only that, supposing Ammons’s
allegations are true, a reasonable jury could conclude that
LaFond, like Feinstein, demonstrated “a substantial departure
from accepted professional judgment” that amounts to a viola-
tion of Ammons’s clearly established Fourteenth Amendment
right to safety during her involuntary commitment to a state

sider the previous accusations against Grant alone supports our conclusion
that qualified immunity is unwarranted. Nonetheless, we do not blindly
ignore the additional facts suggesting deficiencies in LaFond’s perfor-
mance. To pretend that these facts have no bearing on the relevant inquiry
— whether a jury could decide in Ammons’s favor — would render us,
as the dissent puts it, “unreflective and naive.”
18
The dissent accuses us of being “unreflective and naive” in this
assessment. While we do not dispute that public officials may, in order to
avoid trials, tailor their behavior to our qualified immunity decisions, we
will not use this as the basis to transform Ammons’s burden in defeating
qualified immunity into her burden in proving her case. The dissent’s
accusation, and indeed its entire position, is premised on a fundamentally
incorrect notion that denial of qualified immunity is equivalent to a con-
clusive determination that the Constitution has been violated. Under such
incorrect logic, we dare not deny qualified immunity unless we are certain
that constitutional liability will be proved.
Our denial of qualified immunity, as that in Neely, however, makes no
prediction as to whether a jury will find in the plaintiff ’s favor. Our deci-
sion simply recognizes that whether LaFond should be absolved of any
wrongdoing is for a jury to decide. Put another way, we hold no more than
that judgment in Ammons’s favor is not legally foreclosed. Whether pub-
lic officials choose to interpret this opinion as something more than this
is entirely up to them.
10974 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
hospital. We must conclude, therefore, that LaFond is not
entitled to qualified immunity.

B. Webster

[13] We next consider whether the facts alleged against
Webster support a Fourteenth Amendment claim against him.
The pertinent facts alleged against Webster are the following.
Webster, as Director of Nursing from January to April 2003,
was “closer” to Ammons while Grant was molesting her than
was LaFond. As CEO at CSTC during the last three weeks of
Ammons’s residence, Webster had access to information
about Ammons, including her intake assessment indicating
that she was particularly vulnerable to sexual abuse. Impor-
tantly, Ammons neither alleges nor introduces any evidence
that, during Ammons’s time at CSTC, Webster knew of the
allegations by Resident A or the subsequent investigation of
Grant.19

[14] We cannot conclude, even taking all of Ammons’s
allegations as true, that a jury could find that Webster demon-
strated a substantial departure from reasonable professional
judgment. He spent approximately eighteen days as CEO of
CSTC during Ammons’s stay, which would not have pro-
vided him with reasonable and sufficient time to become
apprised of, and take meaningful action with respect to, the
situation between Grant and Ammons. Moreover, during his
time as Director of Nursing, there is no indication that he was
aware of the previous allegations against Grant such that a
reasonable professional in his position would have a reason to
closely or personally monitor Grant’s behavior or to alert his
superiors as to any impropriety. As with Hosley, the Director
of Nursing in Neely, the “absence of a sufficiently strong
directive from [LaFond] served to understate, to all staff
19
We reiterate that Webster’s lack of knowledge, while not determina-
tive, is relevant to the application of the Youngberg professional judgment
standard.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10975
members, the risk that [Grant] posed to female patients.” 50
F.3d at 1511. The record contains no indication that Webster
disregarded, remained unreasonably ignorant of, or failed to
exercise reasonable professional judgment with respect to
Ammons’s safety. Therefore, because the alleged facts are
insufficient to maintain a constitutional claim against him,
Webster is entitled to qualified immunity.

VI.

Ammons has alleged the violation of her clearly established
constitutional right to safe conditions during her involuntary
commitment to a state hospital. The contours of this right
have been clearly established by the objective test set forth in
Youngberg and applied to similar facts in Neely. Taking all
the facts in a light most favorable to Ammons, we hold that
the allegations and evidence against LaFond sufficiently sup-
port a constitutional violation that defeats qualified immunity,
while those against Webster do not. The district court’s denial
of summary judgment as to LaFond is AFFIRMED. The dis-
trict court’s denial of summary judgment as to Webster is
REVERSED. The case is REMANDED for further proceed-
ings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

BYBEE, Circuit Judge, concurring in part and dissenting in
part:

In Youngberg v. Romeo, the Supreme Court held that those
involuntarily committed in state-run mental hospitals have
“rights . . . to reasonable conditions of safety.” 457 U.S. 307,
321 (1982). Recognizing that “an institution cannot protect its
residents from all danger of violence,” the Court found that
“the Constitution only requires that the courts make certain
that professional judgment in fact was exercised.” Id. 320-21
10976 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
(citation and quotation marks omitted). Despite the Court’s
instruction that “[i]t is not appropriate for the courts to specify
which of several professionally acceptable choices should
have been made,” id. at 321, the majority embarks on pre-
cisely this quest, defining a new code of conduct for mental
health hospital administrators and casting “professional per-
sonnel . . . [into] the shadow of an action for damages,” id.
at 325.

Not only does the majority author a code of model profes-
sional conduct, it finds its code to be both constitutionally
compelled and clearly established. Indeed, under the majori-
ty’s code:

• “[a] reasonable administrator [must] . . . take
[resident] allegation[s] into account when assign-
ing and supervising staff members in cottages
where female patients reside[ ],” even when those
allegations have been investigated and deter-
mined to be “unfounded,” Maj. Op. at 10968-69;

• administrators must personally undertake “a basic
review of [patients’] file[s]” and monitor
patients’ bedroom decorations on “walk[s]
through the [hospital] facility,” to catch signs of
burgeoning and illicit relationships between
patients and staff, id. at 10970; and

• administrators will be held strictly liable for any
harm caused in part by their employees’ failures
to communicate with them, including a failure to
make administrators aware of “specific concerns
voiced by parents,” id. at 10969-70 (“[A] reason-
able hospital administrator . . . would have taken
steps to ensure that the staff . . . brought [warn-
ing] signs to the administrator’s attention so that
she could take the necessary steps to prevent [an
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10977
employee] from abusing his position.” (emphasis
added)).

These new mandates are unjust, unfounded, and unworkable.
None is required by the Constitution or established by our
cases. For these reasons, I respectfully dissent as to LaFond.1

I

Let’s be clear—neither the majority nor the appellee claims
that LaFond was personally aware of an inappropriate rela-
tionship between Grant and Ammons. In fact, it is undisputed
that LaFond did not have subjective knowledge of Grant’s
improper attentions to Ammons. Therefore LaFond’s liability
—in fact, the court’s ability to entertain a § 1983 suit against
her—only exists if she can be held responsible for the alleg-
edly unconstitutional actions of her subordinates.

A

Fundamental to the principle of qualified immunity is the
notion that an individual will not be held constitutionally
liable—cannot even be subject to suit—for anything but his
own actions that are in violation of clearly established consti-
tutional law. This is because § 1983 liability cannot be estab-
lished solely on a theory of respondeat superior. As the
Supreme Court recently reminded us: “vicarious liability is
inapplicable to . . . § 1983 suits”; “[i]n a § 1983 suit . . . mas-
ters do not answer for the torts of their servants”; and
“[a]bsent vicarious liability, each Government official . . . is
only liable for his or her own misconduct.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1948-49 (2009). We have long held the
same. See, e.g, Preschooler II v. Clark County Sch. Bd. of
Trs., 479 F.3d 1175, 1183 (9th Cir. 2007); Menotti v. City of
1
I concur in that portion of the majority opinion reversing the denial of
summary judgment as to Webster.
10978 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005); Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989).

The standard necessary to establish a § 1983 violation by
a supervisor is no different than the standard necessary to
establish a § 1983 violation by any other government official:
“a plaintiff must plead that each Government-official defen-
dant, through the official’s own individual actions, has vio-
lated the Constitution.” Iqbal, 129 S. Ct. at 1948 (emphasis
added). For instance, in Iqbal, the Supreme Court held that it
was insufficient for the plaintiff to allege that the supervisor
defendant had “mere knowledge of his subordinate’s discrimi-
natory purpose[.]” Id. at 1949. As the Court explained: “In the
context of determining whether there is a violation of clearly
established right [sic] to overcome qualified immunity, pur-
pose rather than knowledge is required to impose . . . liability
on the subordinate for unconstitutional discrimination; the
same holds true for an official charged with violations arising
from his or her superintendent responsibilities.” Id.

In this case, the constitutional provision at issue is the Due
Process Clause of the Fourteenth Amendment. The Supreme
Court first articulated the standard for proving violations of
the involuntarily committed’s rights to bodily safety in
Youngberg v. Romeo, 457 U.S. 307 (1982). The Court found
that those involuntarily committed in state-run mental hospi-
tals have “rights . . . to reasonable conditions of safety” but
that, to respect those rights, the mental hospital employees
need only exercise “professional judgment.” Id. at 321. The
Court said: “[L]iability may be imposed only when the deci-
sion by the professional is such a substantial departure from
accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base
the decision on such a judgment.” Id. at 323. In other words,
“[T]he Constitution only requires that the courts make certain
that professional judgment in fact was exercised.” Id. at 321
(citation omitted). For this reason, the Youngberg professional
judgment standard is less a “professional judgment” standard
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10979
than it is an “any professional judgment” standard because
exercising any professional judgment will shield a state hospi-
tal professional from § 1983 liability.

The Supreme Court emphasized the latitude that must be
allowed to mental health professionals under the Fourteenth
Amendment by explaining that the Youngberg professional
judgment standard is not an opportunity for lower courts to
play Monday morning quarterback: “It is not appropriate for
the courts to specify which of several professionally accept-
able choices should have been made.” Id. To ensure that
courts would not use the Youngberg professional judgment
standard to categorize as constitutional violations any profes-
sional decision with which they did not agree, the Court
established a presumption in favor of the professionals:
“[D]ecisions made by the appropriate professional are entitled
to a presumption of correctness.” Id. at 324. The Court
explained that a mental health professional deserves this
favorable presumption because, acting alone, she “may have
to make decisions with respect to a number of residents with
widely varying needs and problems in the course of a normal
day. The administrators, and particularly professional per-
sonnel, should not be required to make each decision in the
shadow of an action for damages.” Id. at 324-25 (emphasis
added). The Court clearly did not want state mental health
professionals to act in fear of the lay judgment—pronounced
with great certainty and with all the clarity that hindsight
affords—of the courts. See Ashcroft v. al-Kidd, 563 U.S. ___,
131 S. Ct. 2074, 2085 (2011) (“Qualified immunity gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions.”). Hence a
professional judgment standard.

B

Applying Iqbal to Youngberg, it is clear that Ammons can-
not establish that LaFond violated her constitutional rights.
For constitutional purposes, “decisions made by [LaFond] are
10980 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
entitled to a presumption of correctness.” Youngberg, 457
U.S. at 324. In order to state a cause of action, Ammons must
allege sufficient facts that LaFond’s own actions toward
Ammons were “such a substantial departure from accepted
professional judgment, practice, or standards as to demon-
strate that [LaFond] actually did not base [her] decision[s] on
such a judgment.” Id. at 323. She has failed to do so. In an
absence of sufficient evidence, we do not leave it to a jury to
offer its own opinion of the administration of the institution—
we find that LaFond wins.

The majority too recites these standards, but it does not
believe them. It gives lipservice to the professional standards
component of Youngberg but then rests its decision entirely
on its own non-professional judgment. The majority dutifully
states that “the judgment of professionals must not depart sub-
stantially from ‘accepted professional judgment, practice, or
standards,’ ” Maj. Op. at 10960 n.5 (quoting Youngberg, 457
U.S. at 323).2 But we will scour the majority opinion in vain
for any evidence of what constitutes “accepted professional
judgment, practice, or standards” in the administration of a
residential mental health facility for youths. There is no evi-
dence that the majority has considered or read any such stan-
dards. Instead, the majority has simply made them up.3 The
2
The majority makes it sound as though Youngberg requires hospital
administrators to act according to professional standards or risk § 1983 lia-
bility. This is not what Youngberg requires. Rather, as the Supreme Court
noted, “the appropriate standard was whether the defendants’ conduct was
such a substantial departure from accepted professional judgment, prac-
tice, or standards in the care and treatment of [patients] as to demonstrate
that the [administrators] did not base their conduct on a professional judg-
ment.” Youngberg, 457 U.S. at 314 (quotation marks omitted) (emphasis
added). The Constitution does not require hospital administrators to toe
some industry-set line. Rather, as per the Supreme Court, the Constitution
allows hospital administrators room to act—even to “depart” from profes-
sional judgment, practice, and standards—as long as those actions do not
so depart that no professional judgment was exercised. See id.
3
As the majority concedes, there is no “such [ ] ‘golden code’ of profes-
sional conduct against which to measure LaFond’s actions.” Maj. Op. at
10971 n.15. I think the majority has simply supplied the missing code; the
majority claims the jury gets to make it up. Either way, there is no such
code of professional judgment; either way, the majority is wrong.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10981
majority has mistaken its own ipse dixit for the judgment of
mental health professionals.4

Even if LaFond violated Ammons’s constitutional right to
Fourteenth Amendment substantive due process, she cannot
be subject to suit for that violation unless the “state of the law
in [2003] gave [LaFond] fair warning that [her] alleged treat-
ment of [Ammons] was unconstitutional.” Hope v. Pelzer,
536 U.S. 730, 741 (2002). If the majority cannot even identify
the professional standards for judging LaFond’s decisions,
how can we begin to think that the law was so “beyond
debate” that LaFond “would have understood that what [s]he
is doing violates that [law]”? al-Kidd, 563 U.S. at ___, 131 S.
Ct. at 2083 (internal quotation and citation omitted). As I
explain in the following sections, it is anything but clear that
LaFond’s decisions violated established law.

II

I observe first that it is difficult to apply the Youngberg
professional judgment standard to LaFond’s actions towards
Ammons because, according to the record, apart from making
general decisions about the facility in which Ammons (and
others) lived, LaFond did not take any actions concerning
Ammons. Therefore, to find LaFond eligible for suit for vio-
lating Ammons’ constitutional rights, we have to find that
LaFond’s inactions toward Ammons were unconstitutional.

Not knowing exactly how to begin analyzing the constitu-
tionality of an infinite list of LaFond’s inactions towards
4
The majority writes: “Ironically, the dissent, like us, cannot articulate
the code of professional conduct for administrators of residential health
facilities, and yet the dissent somehow conclusively determines that, as a
matter of law, LaFond did not depart from any such code.” Maj. Op. at
10971 n.15. The absence of a professional standard means that LaFond
prevails—that is precisely what it means that “decisions made by
[LaFond] are entitled to a presumption of correctness.” Youngberg, 457
U.S. at 324.
10982 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
Ammons, I turn to the majority opinion.5 Sifting through its
analysis, it becomes clear that the majority identified three of
LaFond’s inactions as unconstitutional: (1) LaFond failed to
“take[ ] . . . into account” the past allegations against Grant
when she “assign[ed] and supervis[ed] staff members,” Maj.
Op. at 10968; (2) LaFond failed to personally review each
patient’s file, in an effort to “become aware of the escalating
impropriety between” employees and patients, id.; and (3)
LaFond failed to ensure that she was informed “of specific
concerns voiced by parents,” id. at 10970. These “failures”
deserve close inspection, both because LaFond will now have
to endure the personal and financial costs of a trial because of
them and because they are now statements of constitutional
law, applicable to all mental health administrators in the Ninth
Circuit.6 I discuss each failing in turn.
5
I do not mean to imply that a state official’s inactions could never lead
to liability under § 1983. See Maj. Op. at 10970 n.14. I merely mean to
point out that, without any references to professional standards or norms
to guide its analysis, the majority’s list of LaFond’s apparently unconstitu-
tional inactions reads like legal grapeshot.
6
The majority’s assertion that, in finding LaFond not protected by quali-
fied immunity, it has not “conclusively prescribe[d] any particular admin-
istrative conduct,” Maj. Op. at 10973, is unreflective and naive. As the
Supreme Court recently reminded us, rulings in qualified immunity cases
“have a significant future effect on the conduct of public officials . . . and
the policies of the government units to which they belong.” Camreta v.
Greene, 563 U.S. ___, 131 S. Ct. 2020, 2030 (2011). Such impact on
future behavior is not an unintended consequence: “[T]hey are rulings
self-consciously designed to produce this effect by establishing controlling
law and preventing invocations of immunity in later cases.” Id.
Accordingly, courts routinely require state officials to act in accordance
with the statements of constitutional law spelled out in previous appellate
opinions denying qualified immunity. In fact, the majority’s opinion here
is such a case. According to the majority’s own analysis, without Neely v.
Feinstein, 50 F.3d 1502 (9th Cir. 1995), LaFond would be free from liabil-
ity. See Maj. Op. at 10965. Because of Neely, she goes to trial. In the
future, mental health professionals can ignore Ammons at their peril. The
consequences of the majority’s ruling here could hardly be more certain.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10983
A

The majority identifies LaFond’s disregard of the past alle-
gations against Grant as her first constitutional failure. As the
majority explains, “LaFond was aware that Grant previously
had been accused of sexually molesting a minor female
patient. . . . A reasonable administrator, exercising profes-
sional judgment with respect to providing safe conditions,
would have taken Resident A’s allegation into account when
assigning and supervising staff members in cottages where
female patients resided.” Maj. Op. at 10968-69 (emphasis
added).

First, let me point out that this is an incorrect application
of the Youngberg professional judgment standard. If the
majority had been properly applying the professional judg-
ment standard, the majority would have asked if LaFond’s
decision to make employment assignments irrespective of
allegations that, two years earlier, had been determined to be
unfounded was a decision based on her professional judg-
ment. Youngberg, 457 U.S. at 321 (“[T]he Constitution only
requires that the courts make certain that professional judg-
ment in fact was exercised.” (citation omitted)). In the
absence of clear contrary evidence, the majority should have
held that LaFond’s decision not to indefinitely consider the
unfounded allegations against Grant was “presumptively
valid.” Id. at 323.

The majority did neither of these things. Instead, the major-
ity concluded that “any reasonable administrator” would have
considered the unfounded allegations against Grant—or any
unfounded but serious allegations made against any employee
—in perpetuity. I couldn’t disagree more. It is not at all clear
to me that “any reasonable administrator” would—or should
—take into account allegations against an employee when
making assignments concerning that employee, especially
when those allegations are “unfounded.” Nor is it clear that an
10984 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
administrator even could make decisions about an employee
based on unfounded allegations against that employee.

In this case, LaFond handled the first set of allegations
against Grant exactly as she was required to do. Washington
State law requires that “any . . . employee of the department
[of social and health services] . . .[who] has reasonable cause
to believe that a child has suffered abuse . . . shall report such
incident, or cause a report to be made, to the proper law
enforcement agency or to the department [of social and health
services].” Wash. Rev. Code 26.44.030(1)(a) (emphasis
added). As the CEO of the Child Study and Treatment Center
(“CSTC”), LaFond was an employee of the Washington State
Department of Social and Health Services (“DSHS”), and she
was responsible for other employees under the same obliga-
tion. When Resident A came forward with allegations that
Grant had sexually abused her, her allegations were promptly
reported to Child Protective Services (“CPS”), as is required
by Wash. Rev. Code 26.44.030(1)(a). At that point, CPS con-
ducted its own investigation, during which time, LaFond
ordered that Grant not have contact with female residents.
LaFond did not interfere with the investigation, but let CPS
interview the victim, witnesses, and the victim’s psychologist.
After those interviews, LaFond was told by Resident A’s
treating psychologist that she had recanted her allegations
against Grant, and LaFond passed that information on to CPS.
Notably, CPS did not immediately close its investigation;
instead, it interviewed Grant. Only then did it close the inves-
tigation and conclude that the allegations were “unfounded”
because “it would have been extremely unlikely that they
could have occurred as stated.”7
7
The majority makes much of the fact that LaFond knew that Resident
A did not personally recant her allegations to CPS. See Maj. Op. at 10967.
But CPS itself knew that Resident A did not personally recant her allega-
tions to CPS, decided still to interview Grant, and then closed the case
because the allegations were unfounded. LaFond is entitled to rely on
CPS’s professional judgment about when investigations are closed and
allegations unfounded. While it might be understandable if LaFond still
had some question about Grant even after the close of the investigation,
it cannot be the case that the Constitution requires that she harbor such
suspicions, much less that she take action against him.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10985
Once CPS closed its investigation and formally cleared
Grant, LaFond did not consider Resident A’s unfounded alle-
gations in making employment decisions about Grant.
Although this is beside the point—because the Youngberg
standard does not call for a reasonableness analysis—this
seems reasonable to me. LaFond was not required to continue
to consider the unfounded allegations against Grant by any
Washington state law, regulation, or procedure. I can’t see
why LaFond is liable under the Due Process Clause of the
Fourteenth Amendment for acting consistently with state law.
See Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th
Cir. 1994).

Nor, in fact, might LaFond have been allowed to consider
unfounded allegations against Grant, as doing so might have
violated Washington State’s complicated government
employment scheme, which includes at least (1) a Fourteenth
Amendment due process property right in some civil service
employment and the attendant constitutional protections, see
Fuller v. Employment Sec. Dep’t of the State of Wash., 762
P.2d 367 (Wash. Ct. App. 1988); (2) a statute requiring the
destruction of “information relating to employee misconduct
or alleged misconduct” in situations where “such information
[was] determined to be false” or “where the employee has
been fully exonerated of wrongdoing,” Wash. Rev. Code
41.06.450(1)(a); and (3) collective bargaining agreements that
may place limits on CSTC administrators’ ability to discipline
psychiatric child care counselors. If the majority is correct,
the Due Process Clause required LaFond to do what she was
forbidden to do by Washington law.8
8
The majority responds to this point by saying, “We do not . . . suggest
that the administrator must disclose previous accusations of sexual mis-
conduct to any other party, include the accused’s name on any public data-
base, or impose any adverse consequence as a result of the accusation.”
Maj. Op. at 10969 n.13. If we accept this rebuttal, then we have accepted
a reality in which hospital administrators may have to keep lists of individ-
uals against whom unfounded accusations were made—so as to closely
monitor the employees’ future interactions with patients (as required by
this majority)—but that, to comply with (at least Washington) state law,
those lists might have to remain secret and unwritten. The majority is
either blind to or comfortable with this future. I am not.
10986 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
We on the Ninth Circuit are well aware of the perils and
heartache that can come when individuals are dogged by
accusations from which they have been cleared. In Humphries
v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2009),
reversed in part on other grounds by 131 S. Ct. 447 (2010),
we recognized that this kind of unshakable pursuit by past
false accusations can be a “nightmare.” Id. at 1180. The facts
of Humphries bring this nightmare to life. The Humphries
were parents falsely accused of abuse by a rebellious child,
triggering their arrests and the removal of their remaining
children. Id. at 1175. After the state dismissed the criminal
case against them, the Humphries petitioned for further relief,
and the criminal court found them “factually innocent” of the
charges and ordered the arrest records sealed and destroyed.
Id. The juvenile court likewise dismissed as “not true” all
counts of the dependency petition against them. Id. The Hum-
phries thought they’d been cleared. But despite their efforts,
and pursuant to state law, their names were listed in a state
database of “known or suspected child abusers,” which a wide
variety of organizations—including government agencies,
employers, law enforcement entities, and other public and pri-
vate groups—either had access to or, in some cases, were
required to consult. Id. at 1175-76 (emphasis added). The
Humphries tried to have their names removed from the data-
base, but no such procedure existed in California, so they sued
in the federal courts, claiming that maintenance of the state
database violated the Due Process Clause of the Fourteenth
Amendment because “identified individuals are not given a
fair opportunity to challenge the allegations against them.” Id.
at 1176. We held that they were right—their inability to chal-
lenge their listing in the database “violate[d] the[ir] proce-
dural due process rights,” id. at 1202, in part because “there
is a great human cost . . . to being falsely accused of being a
child abuser,” which should prompt us to “protect[ ] . . . citi-
zens against such calumny” ”with the same passion that [we]
condemn[ ] the child abuser for his atrocious acts,” id. at
1194.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10987
In light of our decision in Humphries, it is more than ironic
—it is plainly inconsistent—that we would hold that the Due
Process Clause requires that state hospital administrators do
what we have previously held the Due Process Clause prohib-
its state actors from doing. Compare id. at 1193 (“the Humph-
ries have an interest in not being stigmatized . . . if they have
not committed the acts underlying the reports . . . . [T]hey
have an interest in pursuing employment . . . and securing the
appropriate licenses for working with children without having
to be subject to an additional investigation, delays, and possi-
ble denial of a benefit. . . .”) with Maj. Op. at 10968 (“While
LaFond had no cause to discipline Grant, because he had been
exonerated of the molestation charge, she certainly had rea-
son, in light of her duties with respect to the safety of her
patients, to manage and monitor his duties more carefully.”
(emphases added)); id. n.13 (“We fully acknowledge that
Grant was exonerated as an official matter . . . [but] a reason-
able hospital administrator . . . would have done more to pro-
tect vulnerable female patients.”).9 Viewed in this light, the
majority opinion, which mandates that state hospital adminis-
trators always remember and never forget even unfounded
allegations against hospital employees, is not only unreason-
able, it is manifestly unjust and inconsistent with our decision
in Humphries.10
9
The majority’s confident constitutional pronouncements are all the
more remarkable for the fact that we do not know any of the actors here:
We do not know the CPS investigators, their reputation and methods;
LaFond and her staff; or Grant. Yet we have no difficulty finding that
LaFond relying on CPS’s professional judgment was a substantial depar-
ture from her own accepted professional judgment.
10
I am unpersuaded by the majority’s point that Humphries is not impli-
cated because the majority is not requiring hospital administrators to “in-
clude the accused’s name on any public database, or impose any adverse
consequence as a result of the accusation.” Maj. Op. at 10969 n.13. It is
not at all clear to me that assigning Grant to a different ward—what the
majority is requiring, see id. at 10966-67—would not have been an
adverse employment action, for which LaFond might have opened herself
to suit. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71
(2006) (finding that reassignment of duties, even to a position with the
same job description, can be “materially adverse”); Humphries, 554 F.3d
at 1201-02.
10988 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
B

According to the majority, LaFond’s second unconstitu-
tional inaction was her failure to “take[ ] steps to become
aware of” the signs of Grant’s inappropriate attentions to
Ammons “through a basic review of Ammons’s file or by
simply walking through the facility.” Maj. Op. at 10970. In so
holding, the majority again erred by not applying Young-
berg’s professional judgment standard or the Youngberg pre-
sumption in favor of LaFond.

Instead, the majority pulled this constitutional responsibil-
ity out of its hat. How can it say, without precedent or evi-
dence or expert testimony or support of any kind, that the
Constitution requires that LaFond have looked personally at
Ammons’s file? Or personally walk through the cottage into
Ammons’s room to observe her wall decorations? Notably,
the majority does not cite to any case, statute, DSHS regula-
tion, CSTC policy or custom, or industry expectation that
LaFond personally review patient files or monitor patient
room decor. Nor does the majority explain how, in the future,
mental health administrators should know which patients’
files they are constitutionally compelled to review personally
or which halls the Fourteenth Amendment requires them to
walk. Such vigilance might be routine protocol in one facility,
extraordinarily conscientious administration in another facil-
ity, and simply impracticable in yet a different facility. Noth-
ing in Youngberg tells us how to make such choices, only that
administrators must be presumed to have made a professional
judgment, and they are liable only if they exercise no judg-
ment at all. Youngberg does not appoint us to serve as the
Board of Supervisors for Washington’s mental health facili-
ties, with the power to hire, fire, promote, or discipline its
administrators. Yet the majority’s new standard would
empower us to evaluate—in extraordinary detail and post hoc
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10989
—the performance of such administrators, all in the name of
the Due Process Clause.11

This case demonstrates the complexity of the majority’s
new code of professional conduct. As the majority notes,
CSTC is a “small” community, see Maj. Op. at 10968, hous-
ing a maximum of sixty-four residents, but to serve these resi-
dents, CSTC has a complicated and multilayered
organizational structure. Although the record does not contain
a complete account of CSTC’s chain of command, we do
have a glimpse of what practically it would mean for LaFond
to be required to personally monitor and supervise each staff
member and patient. CSTC contains three cottages; each cot-
tage has at least one supervisor, one registered nurse, one psy-
chiatric social worker, and one psychologist. Each cottage is
divided into four “pods”; each pod has at least one residential
counselor on staff twenty-four hours a day and recreation
therapy staff on site during daytime and early evening hours.
As far as we know, this makes LaFond ultimately responsible
11
Bereft of any standard against which to judge LaFond’s professional
judgment, the majority relies on the reports of two purported “experts” for
support that LaFond’s conduct fell below the standard of care for hospital
administrators. Maj. Op. at 10971 n.15. But it does not appear from the
record that the authors of these reports were ever qualified to opine on the
standard of care required of hospital administrators. Rather, the record
suggests that the authors are unqualified to evaluate LaFond’s professional
judgment as neither has studied hospital administration or has worked as
a hospital administrator. As such, their unqualified opinions on LaFond’s
conduct should be afforded minimal weight.
Even if the witnesses were qualified, their reports are conclusory and do
nothing to illuminate how, if at all, LaFond departed from the standard of
care. They contain no discussion of industry standards, and no discussion
—other than what we all can see through hindsight—of what LaFond
should have done differently. See, e.g., Report of Katherine A. Kent at 7
(“hospital administrators, including Ms. LaFond and Mr. Webster, failed
to take any meaningful precautions to protect [Ammons]”); Report of Jane
W. Ramon at 10 (“Mary LaFond and Norm Webster[ ] were grossly and
extremely negligent in allowing a sexual relationship to develop between
patient [Ammons] . . . and adult male staff”).
10990 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
for at least thirteen supervisors—four at each of three cottages
and CSTC’s director of nursing—and approximately thirty-six
residential counselors.

According to the cottage psychologist supervising
Ammons’s care, this staffing structure meant that any patient-
related concerns would be reported by the residential counsel-
ors to the cottage supervisor, “up through the chain of com-
mand” to CSTC’s director of nursing, and then to LaFond,
making LaFond three levels removed from the supervision of
Grant, a residential counselor, and four levels removed from
the direct care of Ammons.

The majority’s failure to acknowledge the organizational
complexity at a “small” institution like CSTC is just one indi-
cation that it has not thought through the impracticable and
burdensome implications its holding will have for the heads
of state-run mental health hospitals, including ones possibly
larger than CSTC. See Youngberg, 457 U.S. at 322-23 (“there
certainly is no reason to think judges or juries are better quali-
fied than appropriate professionals in making such deci-
sions”). We have no business prescribing managerial behavior
for mental institutions. Clearly, the majority is out of its depth
and wrong in so doing.

C

The third of LaFond’s so-called constitutional errors was
her failure to ensure that her employees did their jobs. The
majority casts this failure in two ways: (1) “a reasonable hos-
pital administrator, exercising professional judgment, would
have taken steps to ensure that the staff who worked closely
with Grant appreciated the seriousness of the situation and
brought these signs to her attention so that she could take the
necessary steps to prevent Grant from abusing his position,”
Maj. Op. at 10970; and (2) “LaFond should have at least
taken steps to ensure that she was informed of specific con-
cerns voiced by parents such as [Ammons’s foster mother] so
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10991
that she could look into the matter further,” id. at 10970. I am
not even sure how to respond to such ad hoc constitutional
pronouncements.

The majority neither suggests nor cites to anything in the
record that indicates what LaFond should have done to “en-
sure” that her subordinates reported more faithfully to her.
Certainly if LaFond’s subordinates had concerns that
Ammons was being abused, as employees of DSHS, they, like
she, were under a statutory obligation to report that abuse to
the proper authority, which may have been LaFond, CPS, or
law enforcement, or all three. See Wash. Rev. Code
26.44.030(1)(a). Their failures to apprise LaFond of whatever
warning signs may have been visible to them were their own
failures and not LaFond’s.

Further, contrary to the majority’s assertion, there is no
indication in the record that LaFond did not “take[ ] steps to
ensure that she was informed of specific concerns voiced by
parents.” Maj. Op. at 10970. The record does not include a
comprehensive account of what instruction or training
LaFond offered to her employees. We know that, according
to LaFond, “[i]t was [her] practice, whenever an allegation of
abuse was made which was determined to be unfounded, that
[she] would direct supervisors to educate and counsel staff
about any high risk behavior on their part, and watch the per-
son accused closely for a period of time.” In the context of
this practice, it is meaningful, then, that “[n]othing negative
was ever reported to [LaFond] concerning Mr. Grant after [the
first] incident was investigated.”12
12
I should not need to make a counterargument at this level of factual
granularity. See al-Kidd, 563 U.S. at ___, 131 S. Ct. at 2084 (“We have
repeatedly told courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality.” (internal citations
omitted)). The majority has cited no cases for the proposition that the Due
Process Clause requires LaFond to specifically instruct her employees to
report parent concerns to her. None. The majority does not even argue that
10992 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
Without any evidence that LaFond ignored her subordi-
nates’ warnings or that she did not exercise professional judg-
ment in her supervision of her employees, LaFond cannot be
held constitutionally liable for her subordinates’ failures.13
The majority’s contrary holding amounts to constitutional lia-
bility based on respondeat superior, and we know that § 1983
liability cannot rest on respondeat superior. See Iqbal, 129 S.
Ct. at 1948; Preschooler II, 479 F.3d at 1183. At least, it
couldn’t before today.

III

I strongly disagree with the majority that LaFond’s inac-
tions violated Ammons’s constitutional rights, but I abso-
lutely disagree that it was so obvious to LaFond that she was
violating the Constitution by not doing what she was not
doing. See al-Kidd, 131 S. Ct. at 2083 (the contours of the
constitutional right at issue must be “sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right”) (citation and quotations omitted)
(emphasis added)). As discussed above, it is not clear to me
even now that LaFond violated the Constitution. How then
was she supposed to have known that she was violating the
Constitution? Certainly not by reading Youngberg. LaFond is
thus entitled to qualified immunity.

For the majority, Neely v. Feinstein, 50 F.3d 1502 (9th Cir.

Neely holds this. In light of the absence of case law imposing on LaFond
such a requirement, I should not need to point out, as I have, that there is
no indication in the record that LaFond did not instruct her employees to
report parent concerns. But the majority rests its denial of qualified
immunity—and exposes LaFond to potential liability—at least in part on
this spurious argument.
13
The majority argues that at least one employee warned LaFond about
“improper clinical staff handling of reported sexual incidents in the resi-
dent cottages.” Maj. Op. at 10952. But those warnings concerned patient-
to-patient sexual impropriety, not staff-to-patient sexual abuse.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10993
1995), is the answer: “Youngberg and Neely serve as pre-
existing, clearly established law as to what conduct supports
infringement of the Fourteenth Amendment rights of involun-
tarily committed hospital patients.” Maj. Op. at 10965. In
other words, because of Neely, it should have been clear to
LaFond that she “violated the Constitution if [she] ran afoul
of the objective Youngberg professional judgment standard as
applied in Neely.” Id. at 10965.

But Neely is anything but clear. In Neely, we addressed the
question of qualified immunity for four employees of a state-
run psychiatric center: Stephen Feinstein, the hospital superin-
tendent; Linda Murgo, the chair of a staff committee con-
vened to investigate the charges of abuse by Jess Terry, an
employee, against Cathy Neely, a patient; Cecilia Hosley, the
hospital’s director of nursing; and John Brown, a building
supervisor, responsible for assigning staff to the various hos-
pital wards. All of these defendants were supervisors over
Terry, and each of these defendants was either aware of the
previous allegations against Terry or aware of the restrictions
against him working one-on-one with female patients. Despite
these similarities, we found qualified immunity for all of the
defendants but Feinstein. We found qualified immunity for
Murgo because her investigation of Terry comported with the
hospital’s regulations. Id. at 1511. We found qualified immu-
nity for Director Hosley because the record did not indicate
that her actions—her failure to put in writing the restrictions
on Terry and her decision to replace the absolute restriction
against Terry working with female patients with a restriction
against him working with them one-on-one—were violations
of a “strong directive” from her superiors. Id. And we found
qualified immunity for Supervisor Brown because, despite his
decision to assign Terry to work with females when previ-
ously he’d been prevented from doing so, “we [could not] say
that he acted unreasonably when faced with a staff shortage.”
Id. But for Feinstein, we did not find qualified immunity
because “a reasonable hospital official would have done much
10994 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
more to eliminate the risk that Terry would sexually abuse
female patients under the hospital’s care.” Id. at 1509.

These discursive and contradictory analyses are more than
“complex,” Maj. Op. at 10966 n.11; they do not make sense.
What cleared three of the defendants from liability—
compliance with hospital regulations, compliance with supe-
rior directives (if any), and reasonableness in light of
practicalities—could have cleared Feinstein, if we had but
analyzed his actions with those standards of scrutiny. There
is no indication that any of Feinstein’s actions were violations
of hospital regulations or that his decision to reprimand Terry,
once cleared, but to not do “much more” was not reasonable
in light of hospital practicalities.14 Yet Feinstein was subject
to suit and liability, and the other supervisors were not. Even
if she had read Neely, LaFond would not have clearly known
that she could be liable like Feinstein and not protected by
qualified immunity as were Murgo, Hosley, and Brown.

And even within the Feinstein-related analysis, our legal
standards contradict. In determining the question of Fein-
stein’s qualified immunity, we simultaneously applied three
different standards to the question of hospital administrator
liability: the Youngberg professional judgment standard and
a “conscious indifference amounting to gross negligence”
standard and an objective “deliberate indifference.” We did
this by importing the “conscious indifference” standard from
Estate of Conners by Meredith v. O’Connor, 846 F.2d 1205,
1208 (9th Cir. 1988), which, as the majority notes, was the
origin for equating the Youngberg standard with “conscious
indifference.” See Maj. Op. at 10962. Then we noted that
“[a]lthough the Conners opinion used the term ‘conscious
14
Frankly, I have no idea what “much more” means in this context. Nor
does Neely suggest anything “more” Feinstein could have done. This
would be merely an intellectual lacuna, a mere judicial low point, except
that now, the majority throws LaFond down that hole, which we made and
did not fill.
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10995
indifference,’ both parties [in Neely] used the term ‘deliberate
indifference.’ ” 50 F.3d at 1507. We then explained the origin
of “deliberate indifference” and its importation from Eighth
Amendment to Fourteenth Amendment jurisprudence, but we
did not reject—as we should have—the parties’ proposition
that “deliberate indifference” was equivalent to “conscious
indifference,” which we had earlier said was equivalent to the
Youngberg professional standard.15

After confusing the standard we were actually applying—
by casting the Youngberg professional judgment standard in
any name but its own—we raised a squall about whether any
of the three standards require subjective awareness. No, we
said, they do not. Neely, 50 F.3d at 1508 (“[T]he Youngberg
professional judgment standard is necessarily an objective
test.”); (“[O]ur Fourteenth Amendment jurisprudence has
never required officials to have a subjective awareness of the
15
The Supreme Court rejected the “deliberate indifference” standard
when it adopted the professional judgment standard in Youngberg. 457
U.S. at 312 n.11. Accordingly, we should have rejected that standard in
Neely and not ambiguously entertained it, as we did. In fact, Neely relies
on our decision in Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986)
for the proposition that “state officials” with “more than a mere suspicion
that an attack will occur,” Neely, 50 F.3d at 1508, “must take steps to pro-
tect prisoners from the threat of serious harm or injury by other prisoners”
id. (quoting in part Berg, 794 F.2d at 459 (emphasis in original)). Neely
reasoned that Berg and other cases “amply demonstrate that . . . in the face
of known threats to patient safety, state officials may not act (or fail to act)
with conscious indifference, but must take adequate steps in accordance
with professional standards to prevent harm from occurring.” Neely, 50
F.3d at 1508. As such, Neely incorporated the Berg rule. But the rule Berg
articulated (and Neely quoted) was the standard for “deliberate indiffer-
ence,” not the professional judgment standard. See Berg, 794 F.2d at 459
(“The ‘deliberate indifference’ standard requires . . . [an official] have
more than a mere suspicion that an attack will occur” (citation and quota-
tions omitted)); see also Redman v. County of San Diego, 942 F.2d 1435,
1442 (9th Cir. 1991) (“The Berg court . . . defined what ‘deliberate indif-
ference’ means in this circuit” (citing Berg)). Neely’s citation to and adop-
tion of Berg therefore operated to import the “deliberate indifference”
standard into what should have been a professional-judgment analysis.
10996 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH
risk of harm in order to be deemed ‘deliberately indiffer-
ent’ ”). Unfortunately, we then appear to have contradicted
ourselves by stating that “in the face of known threats to
patient safety, state officials may not act (or fail to act) with
conscious indifference, but must take adequate steps in accor-
dance with professional standards to prevent harm from
occurring.” Id. (emphasis added). And then, to compound the
problem, we held that one of the defendants in Neely was cov-
ered by qualified immunity expressly because she did not
have subjective awareness of the risk of threat. Id. at 1511
(“[T]here is nothing in the record to establish that Hosley was
personally apprised of the same evidence of Terry’s prior sex-
ual assaults that Feinstein reviewed.”).

In other words, in Neely, we applied different levels of
scrutiny to each of the four supervisor-defendants; we errone-
ously conflated two disparate standards with the Youngberg
professional judgment standard; we contradicted ourselves on
whether the proper standard required subjective awareness for
a constitutional violation; and we contradictorily held that one
supervisor-defendant was liable for risks he was not aware of
but that another supervisor-defendant was not liable for risks
of which she was not “personally apprised.” Id. Read faith-
fully, Neely does not serve to clearly establish anything and
cannot be “faithfully appl[ied].” Maj. Op. 10966 n.11.16
16
I am not the first to point out the ambiguity in Neely’s discussion of
the applicable legal standard. In L.W. v. Grubbs, 92 F.3d 894 (9th Cir.
1996), we rejected the argument that Neely established “ ‘conscious indif-
ference amounting to gross negligence’ ” as the standard for § 1983 liabil-
ity. Id. at 897 (citing Neely, 50 F.3d at 1508 (internal quotations and
citation omitted)). Neely, we explained, “was predicated on our reasoning
in the first Wood v. Ostrander opinion that we later amended,” id., the
amendment of which “[t]he Neely panel should have been well aware.” Id.
at 897 n.3. When we amended Wood, we “step[ped] back from espousing
gross negligence as the proper standard.” Id. But the Neely panel
“[s]omehow . . . omitted that from their decision.” Id. For this reason, the
“[Neely] language . . . is either incorrect to the extent that it approves the
gross negligence standard, or it must be limited to the claims of inmate
 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10997
Unlike the majority, I do not see how Neely was sufficient
to put LaFond on notice that she should have treated Grant or
Ammons differently. In my opinion, Neely was not even cor-
rect. That aside, whatever Neely stands for, it does not
“make[ ] crystal clear,” id., that by not indefinitely consider-
ing unfounded accusations against employees, by not person-
ally reviewing Ammons’s file, and by not “ensuring” that her
employees fulfilled their statutory obligations to report con-
cerns of sexual abuse—concerns of which she was not aware
—LaFond should have known that she was violating the Con-
stitution. At the least, we should have granted qualified
immunity to LaFond.

IV

For the reasons I have explained, I would hold that LaFond
did not violate the Due Process Clause. In any event, I would
find LaFond covered by qualified immunity. I respectfully
dissent from that portion of the judgment and the majority
opinion. For similar reasons, I agree that Webster is so pro-
tected, and I concur in that part of the majority’s opinion and
judgment.

plaintiffs injured because of a miscarriage of the ‘professional judgment
of a [government] hospital official’ in the context of a captive plaintiff.”
Id. at 897. If we are not sure of the scope of Neely liability, it is unreason-
able to assume LaFond would know better how Neely applies. See id. at
898 (“It is little wonder that our district courts have found difficulty in
navigating Section 1983 damage claims waters.”).