Estate of B.I.C. v. Gillen

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 31, 2014

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

THE ESTATE OF B.I.C., a minor child,
deceased,

Plaintiff - Appellant,

and

LARRY F. CROSETTO, individually and
as next friend of C.S.C., a minor child;
MARY LOU CROSETTO,

Plaintiffs,
No. 13-3232
v.

LINDA GILLEN, individually and as an
agent of the Kansas Social and
Rehabilitation Services,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:10-CV-01017-MLB-KGG)

Randall K. Rathbun (Molly M. Gordon, with him on the briefs), Depew Gillen Rathbun
& McInteer, LC, Wichita, Kansas, for Plaintiff - Appellant.

Gerald L. Green, Gilliland & Hayes, LLC, Hutchinson, Kansas, for Defendant -
Appellee.
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Brooklyn Coons (called “Brook” by her estate) died from being shaken and

possibly struck on the head while in the care of her father’s girlfriend. Her estate, the

remaining plaintiff in this case, alleges that Defendant Linda Gillen, a social worker,

knew that Brook was in danger and subject to abuse but did not respond to reports of the

abuse, increasing Brook’s vulnerability to danger. The estate sued Defendant under

42 U.S.C. § 1983 for violating Brook’s right to substantive due process. The district

court granted Defendant summary judgment, holding that she was entitled to qualified

immunity because she did not take any affirmative action that increased the child’s

vulnerability to danger and because there was no clearly established law that her alleged

conduct violated Brook’s due-process rights. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm because Defendant’s conduct was not a violation of clearly established

law.

I. BACKGROUND

On review of a summary judgment, we set forth the evidence in the light most

favorable to the nonmoving party, here the estate. Estate of B.I.C. v. Gillen (Estate of

B.I.C. I), 710 F.3d 1168, 1171 (10th Cir. 2013). Brook died at the age of 23 months. Her

parents were Angela and Randy Coons. Brook, her brother C.S.C., and her mother lived

with Brook’s maternal grandparents, Larry and Mary Crosetto, after her mother left
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Mr. Coons in 2006. When Angela died on August 9, 2007, Mr. Coons moved the

children from the Crosettos’ home to his, but the children still spent time with their

grandparents, especially on weekends. Mr. Coons was living with his girlfriend Melissa

Wells, who has been convicted of Brook’s murder.

Defendant was a social worker with the Kansas Department of Social and

Rehabilitative Services (SRS), where she had worked for several decades. The Crosettos

allege that she developed a deep hatred of them in 1982, when they were adopting

Angela.

Soon after Mr. Coons took custody of the children, the Crosettos began to see

injuries to Brook. In September 2007 a babysitter for the Crosettos observed “random

bruising all over [Brook’s] body,” a black eye, and “a busted lip with stitches.” Aplt.

App., Vol. II at 221. She called the SRS child-protection hotline and reported her

observations along with Brook’s name and birthdate and the names of Brook’s father and

brother. SRS states that it has no record of this call in its database and that a record

would have been generated if it had received a call.

On September 17, 2007, an employee at C.S.C.’s school filled out a social-work

referral form reporting the Crosettos’ concerns about Brook’s constant bruises and her

stitched lip. On November 5, Mr. Crosetto asked the local fire chief to inspect

Mr. Coons’s home because of his concerns about living conditions there. The fire chief

inspected the outside of the home and left a note asking for permission to inspect inside,

but never received a response from Mr. Coons or Ms. Wells.
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 Also on November 5, C.S.C. came to school with a two-inch-square mark on his

cheek that required icing. The school reported the incident to Defendant, who spoke with

Mr. Coons and Ms. Wells. Ms. Wells admitted that she had slapped C.S.C. in anger

when talking to him about fighting in school; she said, however, that she “did not think

she slapped him hard enough to cause the red mark.” Id. at 231. Although Defendant

found the allegation of abuse unsubstantiated, she instituted a safety plan with the family

that included discontinuing physical discipline. She did not report the incident to law

enforcement, interview the Crosettos or other caretakers for the children, or complete a

home visit. SRS had an August 2006 report on Ms. Wells for abuse of one of her natural

children, but neither Defendant nor anyone else at SRS noted this previous incident on

the report about C.S.C.

Mr. Crosetto called Defendant on November 6, 14, 15, and 16, to express concern

about bruising on the children. Initially he was unable to reach Defendant and she did

not return his calls. But on November 20 the two talked by phone. Defendant told

Mr. Crosetto that a case had been opened and that she had been in Ms. Wells’s house to

investigate. Defendant now admits that she never entered the house, although she claims

that she tried to visit. Also during the conversation, Defendant told Mr. Crosetto that

matters of abuse were for the police and she refused to discuss them.

On December 10 Mr. Crosetto called Defendant again about bruising on Brook.

She replied that “her job was to preserve the family unit and not to investigate child

abuse.” Id. at 182. On December 24 he took Brook to a pediatrician, who wrote a letter
4
to SRS and called the police as a result of bruises on Brook. The officer who responded

noted that Brook “appeared to be in no distress,” and he did not see “obvious signs of

battery or trauma,” or “anything which led [him] to believe she was in imminent danger.”

Id. at 236. He prepared a written report, sent the report to SRS, the juvenile county

attorney’s office, and the truancy officer, and left a phone message for Defendant. She

did not get back to him. He assumed that SRS would investigate and address the matter.

On December 28 the Crosettos met with Defendant at her office by appointment.

They tried to give her a CD of pictures of bruising on Brook, but she refused to take it,

saying it was a police matter. The meeting became heated and Mr. Crosetto told

Defendant that he did not believe she would do anything to help the children until one of

them died.

On January 17, 2008, the Coffeyville Police Department went to Mr. Coons’s

house and found Ms. Wells with Brook, who was unresponsive. Doctors at the hospital

in Tulsa, Oklahoma, found “a brain bleed from a blow to the head and brain damage

resulting from Shaken Baby Syndrome.” Id., Vol. III at 438 (internal quotation marks

omitted). Brook died from her injuries on January 20.

An investigation by the Kansas Attorney General’s Office found that Defendant

had handled the abuse claims about the Coons children in a much more “hands off”

manner than she had handled other abuse cases. Id., Vol. II at 211. It attributed this

difference in treatment to “some animus or ill will toward the Crosettos.” Id. at 211–12.

5
 The Crosettos and Brook’s estate filed suit under 42 U.S.C. § 1983 against

Defendant in the United States District Court for the District of Kansas, claiming that she

increased the danger that led to Brook’s death and that she interfered with the Crosettos’

familial relationship with Brook. The plaintiffs also pleaded a state-law negligence

claim. Defendant moved for summary judgment on the federal claims on the ground of

qualified immunity, which the district court granted, ruling that (1) the estate failed to

support a danger-creation claim because Defendant’s conduct did not shock the

conscience, and (2) the Crosettos had not presented a viable familial-association claim. It

dismissed without prejudice the state-law claim, declining to exercise supplemental

jurisdiction under 28 U.S.C. § 1367. The Crosettos and the estate appealed to this court,

which held that the evidence created a genuine issue of whether Defendant’s conduct

shocked the conscience. See Estate of B.I.C. I, 710 F.3d at 1174. We remanded to the

district court for consideration of the elements required to establish the estate’s danger-

creation claim but affirmed the district court’s grant of summary judgment on the

Crosettos’ familial-association claim. See id. at 1174–76. On remand the district court

again granted summary judgment in favor of Defendant, ruling that she had not

committed any affirmative acts that created or increased the danger to Brook, and that the

estate’s legal theory of danger creation was not clearly established.

On appeal the estate argues that Defendant is not entitled to qualified immunity

because under clearly established law she committed sufficient affirmative acts to be

liable for creating or increasing the danger to Brook. We disagree.
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II. DISCUSSION

Qualified immunity generally protects government officials from lawsuits unless

they are “plainly incompetent” or they “knowingly violate the law.” See id. at 1172‒73

(internal quotation marks omitted). Once the defendant asserts a defense of qualified

immunity, the burden is on the plaintiff to establish two propositions: (1) “that the

defendant’s actions violated a constitutional or statutory right,” and (2) that the right was

“clearly established” when the defendant acted. Smith v. Cochran, 339 F.3d 1205, 1211

(10th Cir. 2003) (internal quotation marks omitted). Failure to establish either one

requires the court to grant judgment to the defendant. See id. We can begin (and perhaps

end) our inquiry by addressing either proposition. See Pearson v. Callahan, 555 U.S.

223, 236 (2009). Here, we decide that the estate’s theory of liability was not clearly

established.

The estate asserts a claim under the Due Process Clause of the Fourteenth

Amendment, which declares that a state cannot “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1. In the leading case

of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989),

the Supreme Court addressed the extent to which the clause places a burden on the state

to protect individuals from private violence. DeShaney was given custody of his infant

child, Joshua, when he divorced the child’s mother. See id. at 191. For more than two

years, local social workers at the county Department of Social Services (DSS) received

regular allegations of abuse, and Joshua was hospitalized at least three times for injuries
7
from suspected abuse. See id. at 192–93. On the first hospitalization a court temporarily

placed Joshua in the custody of the hospital, but custody was returned to DeShaney

within a few days. See id. at 192. Although DSS set up a protection plan, including

having DeShaney’s girlfriend move out and enrolling the child in preschool, the plan was

not followed. See id. at 192–93. A DSS social worker noticed injuries on visits to the

home and was told on two visits that Joshua was “too ill to see her,” but she did nothing

more than record these observations. Id. at 193. DeShaney eventually beat Joshua

severely enough that he fell into a coma. See id. He recovered but was “expected to

spend the rest of his life confined to an institution for the profoundly retarded.” Id.

Joshua and his mother brought suit against DSS and individual DSS employees for

violation of Joshua’s right to substantive due process. See id. at 193, 195. The Supreme

Court held that the defendants were entitled to judgment, stating that “[a]s a general

matter . . . a State’s failure to protect an individual against private violence simply does

not constitute a violation of the Due Process Clause.” Id. at 197. “While the State may

have been aware of the dangers that Joshua faced in the free world, it played no part in

their creation, nor did it do anything to render him any more vulnerable to them.” Id. at

201. The Court noted that “[t]he most that can be said of the state functionaries in this

case is that they stood by and did nothing when suspicious circumstances dictated a more

active role for them.” Id. at 203.

The Court rejected the argument that the state’s duty to protect arose from a

“special relationship” that “existed here because the State knew that Joshua faced a
8
special danger of abuse at his father’s hands, and specifically proclaimed, by word and by

deed, its intention to protect him against that danger.” Id. at 197 (internal quotation

marks omitted). It explained that the cases relied on by the plaintiffs as establishing a

special relationship—cases involving prisoners and involuntarily committed mental

patients—“stand only for the proposition that when the State takes a person into its

custody and holds him there against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his safety and general well-being.”

Id. at 199–200. In those situations, wrote the Court, “[t]he affirmative duty to protect

arises not from the State’s knowledge of the individual’s predicament or from its

expressions of intent to help him, but from the limitation which it has imposed on his

freedom to act on his own behalf.” Id. at 200. It continued:

[I]t is the State’s affirmative act of restraining the individual’s freedom to
act on his own behalf—through incarceration, institutionalization, or other
similar restraint of personal liberty—which is the “deprivation of liberty”
triggering the protections of the Due Process Clause, not its failure to act to
protect his liberty interests against harms inflicted by other means.

Id. The Court recognized that the plaintiffs might have a cause of action under state law,

but cautioned that the Due Process Clause “does not transform every tort committed by a

state actor into a constitutional violation.” Id. at 202.

Since DeShaney, this court has recognized only two exceptions to the general rule

that the Due Process Clause imposes no duty to protect against private violence: “when

the state has assumed a special relationship with and control over an individual,” as when

the individual is in state custody, and when a state official “created the very danger that
9
caused the harm.” Estate of B.I.C. I, 710 F.3d at 1173. The estate does not argue that the

first exception applies, and we do not consider it. Rather, the estate relies on the danger-

creation exception.

To establish a claim under the danger-creation theory, a plaintiff must show:

(1) the charged state entity and the charged individual actors created the
danger or increased plaintiff’s vulnerability to the danger in some way; (2)
plaintiff was a member of a limited and specifically definable group; (3)
defendant[’s] conduct put plaintiff at substantial risk of serious, immediate,
and proximate harm; (4) the risk was obvious or known; (5) defendants
acted recklessly in conscious disregard of that risk; and (6) such conduct,
when viewed in total, is conscience shocking.

Id. at 1173 (internal quotation marks omitted). There are also two “preconditions” that

the plaintiff must show: that the state actor engaged in affirmative conduct and that there

was private violence. See id. The district court ruled that the estate had not shown either

the first precondition, an affirmative act on the part of Defendant, or the first element of

the test, an increase in Brook’s vulnerability to danger caused by Defendant.

The estate alleges six purported affirmative actions that increased Brook’s

vulnerability to danger: (1) Defendant refused to accept Mr. Crosetto’s CD of pictures of

Brook’s injuries, (2) she refused to return phone calls from the police, (3) she refused to

substantiate abuse that caused the large red mark on C.S.C.’s face, (4) she told

Mr. Crosetto to contact the police about increased bruising on the children, (5) she told

the Crosettos that any abuse of the children was not her issue, and (6) she lied about

whether she had been in Ms. Wells’s home to investigate the reported abuse against

C.S.C.
10
 The estate’s burden is to show that by January 20, 2008, when Brook died, the law

was clearly established that at least one of the above six actions denied Brook the right to

due process. To be clearly established, the law must have been “sufficiently clear that a

reasonable official would have understood that his conduct violated the right.” Currier v.

Doran, 242 F.3d 905, 923 (10th Cir. 2001). Generally this requires “a Supreme Court or

Tenth Circuit decision on point, or the clearly established weight of authority from other

courts must have found the law to be as the plaintiff maintains.” Id. (internal quotation

marks omitted). Although it is not necessary for the facts in the cited authority to

correspond exactly to the situation the plaintiff complains of, the “plaintiff must

demonstrate a substantial correspondence between the conduct in question and prior law

allegedly establishing that the defendant’s actions were clearly prohibited.” Trotter v.

Regents, 219 F.3d 1179, 1184 (10th Cir. 2000) (internal quotation marks omitted). The

Supreme Court has “repeatedly told courts not to define clearly established law at a high

level of generality since doing so avoids the crucial question whether the official acted

reasonably in the particular circumstances that he or she faced.” Plumhoff v. Rickard,

134 S. Ct. 2012, 2023 (2014) (brackets, ellipses, and internal quotation marks omitted).

Thus, a general statement of law—such as that a state cannot increase one’s vulnerability

to private violence—is not sufficient to show that the law was clearly established. See

Herring v. Keenan, 218 F.3d 1171, 1176 (10th Cir. 2000) (“A plaintiff cannot simply

identify a clearly established right in the abstract and allege that the defendant has

violated it.” (internal quotation marks omitted)).
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 The estate cites little authority to support the contention that it was clearly

established law that Defendant’s alleged conduct denied Brook substantive due process.

The only Supreme Court opinion cited on the scope of substantive due process is

DeShaney, 489 U.S. 189, which, as we have already seen, held that there was no due-

process violation in that case and could hardly support, much less clearly establish, a

violation by Defendant. The only opinion by another circuit cited by the estate on the

matter is Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982), which affirmed summary

judgment for defendant physicians accused of mistreating an institutionalized mental

patient, likewise not an adequate source for clearly establishing law favorable to the

estate. Also, we can disregard district-court decisions cited by the estate, which can be

persuasive on the merits of a constitutional claim but cannot clearly establish what the

law is. See Woodward v. City of Worland, 977 F.2d 1392, 1397 (10th Cir. 1992) (“[A]

district court decision will not ordinarily ‘clearly establish’ the law even of its own

circuit, much less that of other circuits.” (internal quotation marks omitted)).

There remains only the estate’s reliance on two published opinions by this circuit.

One, Hernandez v. Ridley, 734 F.3d 1254 (10th Cir. 2013), comes five years too late to

clearly establish the law in January 2008. See Gross v. Pirtle, 245 F.3d 1151, 1156 (10th

Cir. 2001) (the plaintiff must “demonstrate that the right at issue was clearly established

at the time of the defendant’s unlawful conduct.”).

The other Tenth Circuit opinion relied on by the estate is Currier. We discuss it in

some detail. In Currier two young children were removed from their mother’s home and
12
a court granted legal custody to the state Children, Youth and Families Department

(CYFD). See 242 F.3d at 909. The court then gave the father physical, and later legal,

custody, despite knowledge on the part of social workers that the father regularly failed to

pay child support and was likely to be an inadequate caregiver. See id. During the

father’s custody of the children, social workers received repeated reports of abuse from

the children’s mother, but no steps were taken to end the father’s custody. See id. at 909–

10. Ultimately, one of the children died of burns after his father poured boiling water

over him. See id. at 910. The plaintiffs brought claims against three social workers who

had been assigned to the case; each asserted qualified immunity. See id. at 908.

We held that one social worker, Sentell, had not committed a constitutional

violation because his failures occurred only after the children were in the father’s legal

custody. See id. at 920. Thus, he had not created any danger and he had “no

constitutional duty to rescue the children,” even assuming that he knew that other actors

had created a danger to the children and he had “a clear opportunity to rescue [them].”

Id. at 921. Our conclusion was informed by DeShaney’s observation that even if the state

has once taken custody of a child, if it later returns him to the original custodian, “it

place[s] him in no worse position than that in which he would have been had [the state]

not acted at all.” 489 U.S. at 201.

A second social worker, Doran, was sued because he was responsible for the state

court’s award of custody to the father and because of “various allegations as to [his]

involvement after legal custody was awarded to [the father.]” Currier, 242 F.3d at 919.
13
We rejected qualified immunity for Doran with respect to his role in placing the children

with the father because his assistance in their placement did create a danger to the

children. See id. at 919–20. We distinguished DeShaney because the state had not

returned the children to the same person (the children’s mother) from whom it had taken

custody. See id. at 918–19. But we held that “Plaintiff [could not] rely on Defendants’

failure to intervene once custody was given to [the father],” and said that we would not

consider Doran’s postcustody conduct. Id. at 919.

The third social worker, Medina, also could not be liable for conducting an

allegedly defective postcustody investigation. See id. at 921. But she allegedly told the

children’s mother “to stop making allegations of abuse because it was traumatizing the

children.” Id. We held that this statement could be a constitutional violation because it

“cut[] off potential sources of state aid,” namely the police or CYFD, who, alerted by the

mother, might have acted to protect the child. Id. at 922.

The estate argues that this precedent clearly establishes that Defendant’s behavior

was a constitutional violation because she also cut off other sources of private aid. But

Defendant’s behavior is distinguishable. The first three purported affirmative actions that

Defendant allegedly took—(1) refusing to accept the CD with pictures of abuse, (2)

refusing to return police phone calls, and (3) refusing to substantiate abuse when

investigating the large red mark on C.S.C.’s face—are all failures to act. These three

refusals did not change the status quo. Like Sentell in Currier, Defendant did not place

Brook with Mr. Coons and Ms. Wells, so she had no duty to rescue Brook from that
14
custody. The estate argues that this inaction amounted to action because it was motivated

by ill-will. But Currier does not support this argument, and the estate cites no authority

for the proposition that inaction can be treated as action because of the nonactor’s ill-will.

The fourth and fifth purported affirmative actions—that Defendant told Mr.

Crosetto to contact the police and that she said that any abuse of the children was not her

issue—are likewise not clearly established constitutional violations under Currier. The

statements amount to only Defendant’s explanations for her refusal to act. The estate

argues that at least Defendant’s telling Mr. Crosetto to call the police was an affirmative

act because it “removed safety valves and increased the vulnerability and danger to the

children.” Aplt. Br. 25–26. But unlike defendant Medina in Currier, Defendant did not

tell the Crosettos not to report abuse—she affirmatively told them to go to the police.

The estate has not provided any authority, and we would not expect to find any, for the

proposition that telling someone to seek assistance from others deprived the person of

assistance from others.

The estate’s final purported affirmative action—that Defendant misrepresented to

Mr. Crosetto that she had been inside Brook’s home—is likewise not a clearly established

constitutional violation. Nothing in Currier, where Medina affirmatively instructed the

mother to stop reporting abuse, discusses misrepresentation. Perhaps Currier could be

read as supporting the proposition that liability can be predicated on a misrepresentation

that causes others to lower their guard and not seek protection by other means. But

Currier did not clearly establish that proposition. Indeed, after Currier we rejected that
15
view of the law, relying on DeShaney. In Gray v. University of Colorado Hospital

Authority, 672 F.3d 909 (10th Cir. 2012), a state hospital had told a man and his family

that he would be constantly monitored while he was weaned from his antiseizure

medicine, even though the hospital’s protocol permitted leaving patients unattended and

unobserved. See id. at 912. While unattended, the man died of a seizure. See id. The

hospital admitted that the man would likely have survived if he had been constantly

monitored. See id. We held that the hospital’s “false assurances [did] not constitute an

affirmative act rendering decedent vulnerable to danger within the meaning of the danger

creation exception.” Id. at 925. We relied on DeShaney as indicating that “assurances of

protection from the State do not constitute affirmative conduct sufficient to invoke the

state-created danger theory of constitutional liability.” Id. Given Gray’s 2012 reading of

the 1989 DeShaney opinion, it would be bizarre for us to say that the law in 2008 was

clearly established to the contrary of the statement in Gray.

The estate attempts to distinguish Gray on the basis that there was no private

violence in that case—the patient died as a result of his natural medical condition. It also

argues that in Gray there was a promise about what would happen in the future, whereas

here Defendant lied about what she had done in the past. But Gray relied on precedent—

namely, DeShaney—involving private violence; and it certainly seems to say that a “false

assurance[],” which we think is a proper way to characterize Defendant’s alleged

statement that she had visited the home, “do[es] not constitute an affirmative act.” Id. at

925. In any event, the estate’s burden is not merely to show that adverse case law might
16
be distinguishable. The burden is to show that the law was clearly in its favor. In our

view, that burden has not been satisfied.

The estate has failed to show that Defendant’s behavior was a clearly established

violation of Brook’s constitutional rights at the time it occurred. Defendant is therefore

entitled to qualified immunity.

III. CONCLUSION

We AFFIRM the judgment below.

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