FILED
United States Court of Appeals
Tenth Circuit
December 19, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MELISSA R. SCHWARTZ, as
Personal Representative and
Administrator of the Estate of
Chandler Grafner, deceased;
CHRISTINA GRAFNER; JOSHUA
NORRIS,
Plaintiffs-Appellees,
v. No. 11-1583
MARGARET BOOKER, in her
individual capacity; MARY
PEAGLER, in her individual capacity,
Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:09-CV-00915-WJM-KMT)
Robert A. Wolf, Denver City Attorney’s Office, Human Resources Section
(Douglas J. Friednash, City Attorney; Niels Loechell and Linda Davison, Denver
City Attorney’s Office, on the briefs), Denver, Colorado, for
Defendants-Appellants.
J. Kyle Bachus of Bachus & Schanker, LLC, Denver Colorado, for
Plaintiffs-Appellees.
Before BRISCOE, Chief Judge, GORSUCH and MATHESON, Circuit Judges.
BRISCOE, Chief Judge.
This is an interlocutory appeal from the denial of a motion to dismiss
asserting qualified immunity. At issue is the scope of the special relationship
doctrine and whether it would apply to the facts alleged to expose two human
services employees to potential individual liability for the death of a
seven-year-old child in foster care. 1
After their son, Chandler Grafner, died while in the foster care of Jon
Phillips and Sarah Berry, Chandler’s biological parents, Christina Grafner and
Joshua Norris, and Melissa R. Schwartz, personal representative and administrator
of Chandler’s estate, filed suit against two county human services departments
and two employees alleging, among other claims, a 42 U.S.C. § 1983 claim for
violation of Chandler’s substantive due process rights. The two employees,
Defendants-Appellants Margaret Booker and Mary Peagler, have filed this
interlocutory appeal from the district court’s order denying their Rule 12(b)(6)
motion to dismiss on the basis of qualified immunity. We affirm.
1
“Under the Supreme Court’s collateral order doctrine, ‘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 judgment.’” Weise v. Casper, 507 F.3d
1260, 1263 (10th Cir. 2007) (citation omitted) (quoting Mitchell v. Forsyth, 472
U.S. 511, 530 (1985)).
2
I
Factual Background 2
Over a period of almost three years, three Colorado county departments of
human services were called upon to investigate possible abuse of Chandler as he
transitioned between homes and caretakers. Sadly, none prevented his untimely
death at the hands of his foster parents. This series of events began in October
2004, when Christina Grafner contacted Arapahoe County Department of Human
Services (ACDHS) to express her fears that Jon Phillips, a man with whom she
lived, would harm her son, Chandler Grafner. By September 2005, Christina and
Chandler had moved in with Christina’s mother, Sandra Younger. In December
2005, ACDHS created an open case regarding Chandler, which was ultimately
referred to Jefferson County Department of Human Services (JCDHS) after
Chandler and Christina relocated to Jefferson County. Rather than confirm
Christina’s address in Jefferson County, JCDHS referred Chandler’s case back to
ACDHS. On the same date, ACDHS closed Chandler’s case.
On March 26, 2006, JCDHS opened a case regarding Chandler and removed
Chandler from his mother’s custody. By March 28, Chandler was in JCDHS’s
custody. In May 2006, JCDHS placed Chandler in Jon Phillips’s home. JCDHS
2
Facts are taken from plaintiffs’ amended complaint. See Brown v.
Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011) (finding that when reviewing a
district court’s denial of a motion to dismiss based on qualified immunity, “‘all
well-pleaded factual allegations in the . . . complaint are accepted as true.’”
(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).
3
placed Chandler with Jon Phillips, who had no biological relationship to
Chandler, in disregard of previous concerns of abuse voiced by Chandler’s mother
and without updating Chandler’s case in the automated reporting system—a
state-wide system used by Colorado state departments of human services to
monitor cases. Thereafter, JCDHS added Sarah Berry, Jon Phillips’s live-in
girlfriend, as a special respondent in Chandler’s foster care case.
Reports of possible abuse began on January 17, 2007, when a kindergarten
teacher’s aide, Amy Domanski, noticed red marks on Chandler’s neck, a bump on
his head, and swelling and redness in his right ear. When the aide asked Chandler
about these injuries, he responded, “Dad kept slapping my ear in the shower. He
smacked me in the neck and kept putting me in the water.” Aplts. App. at 5.
When questioned further by the assistant principal, 3 Maureen Hogan, Chandler
responded that “[m]y daddy put me in the shower and slapped me in the ear over
and over. He was mad at me because my little brother made me steal candy.” Id.
at 6. The assistant principal subsequently reported her suspicions of child abuse
to Denver County Department of Human Services (DCDHS), which then referred
her to JCDHS. The following day, JCDHS referred the reported child abuse to
DCDHS citing Jon Phillips’s and Sarah Berry’s status as Denver County residents
3
It is not clear whether Maureen Hogan was the assistant principal or the
principal. Compare Aplts. App. at 26 (“Chandler was seen by school Principal
Maureen Hogan.”), with id. at 28 (“Maureen Hogan, assistant principal at Holm
Elementary School . . . .”).
4
as the basis for referral. JCDHS took no further action.
Two days after the reported abuse, on January 19, 2007, a DCDHS intake
worker visited Chandler’s school in an attempt to investigate Chandler’s injuries,
but was unable to do so due to Chandler’s absence from school. The same day,
Denver police attempted a welfare check at Chandler’s home, but received no
answer at the door. The following day, January 20, Denver police again
conducted a welfare check at Chandler’s home; this time, officers found Chandler
and removed him from the home. Officers took Chandler to the Family Crisis
Center to be evaluated by Denver Social Services. Upon questioning by the
officers, Chandler initially informed them that his father had hit him, but later
explained that he had fallen in the bathtub.
In response to questioning by the emergency-response caseworker at the
crisis center, Chandler stated that he had to take showers when he misbehaved
and that he had taken candy from the kitchen, so he had to take a shower.
Chandler also told the emergency-response caseworker that he had to “eat nasty
food” when he misbehaved. Id. at 7. In light of this discussion, the caseworker
determined that Chandler’s injuries were indicative of nonaccidental trauma.
DCDHS concluded otherwise and ruled that abuse was unfounded after a
home visit by a caseworker. DCDHS returned Chandler to Jon Phillips and Sarah
Berry’s home later that day. Two days later, Denver police and DCDHS
questioned Jon Phillips and Sarah Berry about the suspected abuse. In response
5
to this questioning, both denied abuse and reported that the school official’s
reports were retaliation. After returning to school, Chandler informed his teacher
that his parents were mad at her because she was interrogating him and that he
had just fallen in the shower. When asked if his parents told him to say that he
had fallen, Chandler responded, “Yes, they did.” Id. at 8. The day after this
exchange, DCDHS caseworkers went to the school to interview school personnel.
During this investigation, DCDHS caseworkers discovered that Chandler had been
sent to school in December wearing only one shoe and no coat.
Throughout this period, Margaret Booker served as the head of
Investigation of Child Maltreatment and Intake Services at DCDHS and was
responsible for the investigation of Chandler’s case. Mary Peagler was a case
record supervisor at DCDHS and was also responsible for investigating
Chandler’s case. On February 7, 2007, Peagler closed Chandler’s case regarding
the January allegations of abuse.
Suspicions of abuse continued. Two months after the January 2007
investigation, Chandler told his teacher aide to “stop interrogating me. I get in so
much trouble.” Id. And, on April 17, 2007, Chandler’s school informed DCDHS
that Chandler had been withdrawn from school since March 9. Chandler’s school
also informed DCDHS that school staff made several unsuccessful attempts to
reach Chandler’s home during this period and that when they finally reached Jon
Phillips, he explained that Chandler would be transferring schools due to “family
6
problems.” Id. Overall, the personnel at Chandler’s school filed at least four
written complaints to DCDHS regarding Chandler’s continued absence and
suspected neglect and abuse. Despite the school’s concerns, Booker and Peagler
did not investigate the April referral and ultimately closed the case, contrary to
the Colorado Department of Human Services’ procedure requiring a within
24-hours response to suspicions of child abuse. On May 6, over three weeks after
the April referral, Chandler was found in a locked closet in an emaciated state and
taken from Jon Phillips’s home; Chandler died later that day from cardiac arrest
caused by severe dehydration and starvation.
District Court Proceedings
Melissa R. Schwartz, personal representative and administrator of
Chandler’s estate, Christina Grafner, Chandler’s biological mother, and Joshua
Norris, Chandler’s biological father, filed the present suit against JCDHS,
DCDHS, Margaret Booker, in her individual and official capacities, and Mary
Peagler, in her individual and official capacities, asserting, among other claims, a
§ 1983 claim for violation of Chandler’s substantive due process rights. The
district court dismissed the claims against JCDHS, DCDHS, and Margaret Booker
and Mary Peagler in their official capacities, after finding these defendants
entitled to Eleventh Amendment immunity. Booker and Peagler also sought
dismissal on the basis of qualified immunity of the § 1983 claim asserted against
them in their individual capacities. After finding that Booker and Peagler were
7
not entitled to qualified immunity, the district court denied their motion to
dismiss. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
II
Qualified immunity protects governmental officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This doctrine balances “the need to hold
public officials accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Qualified immunity is more than a defense to liability: It is “an immunity from
suit” that “is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell, 472 U.S. at 526 (emphasis omitted). Accordingly, qualified “immunity
questions [should be resolved] at the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
This court reviews de novo the denial of a motion to dismiss based on
qualified immunity. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197,
1199 (10th Cir. 2003). Accordingly, all well-pleaded allegations of the complaint
are accepted as true and viewed in a light most favorable to the nonmoving party.
To survive a motion to dismiss based on qualified immunity, the plaintiff must
allege sufficient facts that show—when taken as true—the defendant plausibly
8
violated his constitutional rights, which were clearly established at the time of
violation. Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). We first
determine if the amended complaint sufficiently alleged violation of a
constitutional right because “‘[i]n the course of determining whether a
constitutional right was violated on the premises alleged, a court might find it
necessary to set forth principles which will become the basis for a holding that a
right is clearly established.’” Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836,
841-42 (10th Cir. 2005) (alteration in original) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001), overruled in part by Pearson, 555 U.S. 223).
III
Substantive Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV. Section 1983 provides a private cause of
action for “the deprivation of any rights, privileges, or immunities secured by the
Constitution.” 42 U.S.C. § 1983. Generally, state actors are only liable for their
own acts, not for acts of private violence. DeShaney v. Winnebago Cnty. Dep’t
of Soc. Servs., 489 U.S. 189, 197 (1989). Two exceptions exist to this general
principle: The special relationship doctrine and state-created danger theory.
Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir. 1996). The special
relationship doctrine applies “‘when the state assumes control over an individual
9
sufficient to trigger an affirmative duty to provide protection to that individual.’”
J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011) (quoting Uhlrig v. Harder, 64
F.3d 567, 572 (10th Cir. 1995)). Broadly, the state-created danger theory applies
when the State creates or increases a harm of private violence to an individual. 4
Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th
Cir. 1998). Only the special relationship doctrine is relevant to this appeal.
Special Relationship
The origin of this exception is the Supreme Court’s decision of DeShaney
v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). In
DeShaney, the Supreme Court concluded that “when the State takes a person into
its custody and holds him there against his will, the Constitution imposes upon it
4
Specifically, a plaintiff must establish the following elements before the
state-created danger theory applies:
“1) Plaintiff was a member of a limited and specifically definable
group; 2) Defendant’s conduct put Plaintiff at substantial risk of
serious, immediate, and proximate harm; 3) the risk was obvious or
known; 4) Defendant acted recklessly in conscious disregard of that
risk; . . . 5) such conduct, when viewed in total, is conscience
shocking[;] [and 6)] defendant actors created the danger or increased
the plaintiff’s vulnerability to the danger in some way.”
DeAnzona v. City & Cnty. of Denver, 222 F.3d 1229, 1235 (10th Cir. 2000)
(second alteration in original) (quoting Armijo, 159 F.3d at 1262-63).
Affirmative conduct by the state actor and a private act of violence are
preconditions to application of this exception. Gray v. Univ. of Colo. Hosp.
Auth., 672 F.3d 909, 920, 928 (10th Cir. 2012).
10
a corresponding duty to assume some responsibility for his safety and general
well-being.” 489 U.S. at 199-200. This duty, the Court explained, is not
triggered by the “State’s knowledge of the individual’s predicament or from its
expressions of intent to help him.” Id. Rather,
it 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. at 200. While the Court foreshadowed in DeShaney that such a right could
extend to children in foster care, 5 it was not until Yvonne L. ex rel. Lewis v. New
Mexico Department of Human Services, 959 F.2d 883 (10th Cir. 1992), that the
Tenth Circuit explicitly recognized that foster children have a substantive due
process right to “protection while in foster care.” Id. at 892-93. Accordingly,
foster care is recognized as one of the custodial relationships that creates a special
relationship.
The special relationship triggers a continuing duty which is subsequently
violated if a state official “knew of the asserted danger to [a foster child] or failed
to exercise professional judgment with respect thereto, . . . and if an affirmative
5
“Had the State by the affirmative exercise of its power removed Joshua
from free society and placed him in a foster home operated by its agents, we
might have a situation sufficiently analogous to incarceration or
institutionalization to give rise to an affirmative duty to protect.” DeShaney, 489
U.S. at 201 n.9.
11
link to the injuries [the child] suffered can be shown.” Id. at 890; see Gray, 672
F.3d at 923. Generally, the scope of this relationship has turned on the dependent
and involuntary nature of the custodial relationship between the individual and
the State. See Maldonado v. Josey, 975 F.2d 727, 732-33 (10th Cir. 1992)
(finding that state compulsory education laws did not create special relationship
because “school hour” custody did not “alter the fact that parents retain ultimate
responsibility for their child’s food, shelter, clothing, medical care, and
reasonable safety”); Liebson, 73 F.3d at 276 (finding no special relationship when
relationship was consensual, employment relationship).
Booker and Peagler present two distinct, but similar, arguments as support
for their assertion that the special relationship doctrine does not presently apply:
First, they argue that neither of them personally participated in the placement of
Chandler and, therefore, did not deprive Chandler of his liberty; and, second, they
argue that only JCDHS had a special relationship with Chandler because it was
the state agency that initially placed Chandler in Jon Phillips’s home. 6
As support for their argument that the defendant-official’s participation in
the foster child’s placement is necessary to trigger liability, Booker and Peagler
exclusively rely upon cherry-picked language from a handful of Tenth Circuit
6
Booker and Peagler also argue that the constitutional duty is limited to
placement of the foster child. Since Yvonne L., however, it is clear that this right
extends beyond initial placement to “protection while in foster care.” 959 F.2d at
892-93; J.W., 647 F.3d at 1011.
12
cases. 7 We find Booker and Peagler’s reading of this cherry-picked language
flawed for several reasons. First, their construction requires a literal reading
isolated from the context of the opinion. As our case law makes clear, the special
relationship exists between the State and foster child, which triggers an
accompanying, continuing duty imposed on state custodial officials
thereafter—not a duty limited to only the specific officials who executed the
placement of the child. 8 See, e.g., Gray, 672 F.3d at 923 (“[T]he State incurs an
7
Specifically, Booker and Peagler cite the following language and cases.
“[I]f the persons responsible place children in a foster home or institution that
they know or suspect to be dangerous to the children they incur liability if the
harm occurs. . . . The officials who place the children are acting in the place of
the parents.” Yvonne L., 959 F.2d at 893-94. “A special relationship exists
between Redd and Brooks only if Brooks restrained Redd’s freedom to act, so that
Redd was unable to protect himself.” DeAnzona, 222 F.3d at 1234. “This court
has held that a plaintiff must show involuntary restraint by the government
official in order to establish a duty to protect under the special relationship
theory.” Armijo, 159 F.3d at 1261 (citing Liebson, 73 F.3d at 276). “[I]t was
also clearly established that state officials had a duty to protect individuals whom
they had taken involuntarily into their physical custody and control.” Liebson, 73
F.3d at 277.
8
In their opening brief, Booker and Peagler seem to conflate their
argument for the official-participation requirement with the requirements of
establishing supervisor liability. See Aplts. Br. at 9 (citing J.W. as “[r]ecognizing
that the supervisor ‘was not responsible for the placement decision on which
Plaintiffs’ claim is premised’ and there was ‘no evidence that the supervisor
personally participated or knowingly acquiesced in the alleged deprivations of
Plaintiffs’ constitutional rights,’ this Court held that the district court was correct
in holding that Plaintiffs ‘have not set forth a valid basis for finding the
supervisor liable under a §1983 claim.’”). Moreover, Booker and Peagler’s
citation to DeAnzona is unpersuasive: the DeAnzona court upheld this court’s
understanding that a special relationship exists if the individual is in an
involuntary, custodial relationship with the State and is not affected by the
individual’s age; accordingly, the DeAnzona court unremarkably found a child at
13
antecedent constitutional duty to protect the victim” when a special custodial
relationship exists between the two); J.W., 647 F.3d at 1011 (“Thus, the State
owed [the foster children] the affirmative duty of protection while they were in
foster care. . . . However, state officials will only be found to have violated this
right if they ‘knew of the asserted danger to [foster children] or failed to exercise
professional judgment with respect thereto, . . . and if an affirmative link to the
injuries [the children] suffered can be shown.’” (second and third alterations in
original) (emphases added) (citations omitted) (quoting Yvonne L., 959 F.2d at
890)); Johnson ex rel. Cano v. Holmes, 455 F.3d 1133, 1142-43 (10th Cir. 2006)
(“They[, state officials], however, can be held liable for harm done by third
parties if the state has a ‘special relationship’ with the harmed individual.”
(emphasis added)). 9
Even the cases Booker and Peagler cite as support for their argument
discuss the deprivation of a child’s liberty by the State and the liability of state
officials arising thereafter—an apparent inconsistency with their assertion that a
day camp does not satisfy such requirements because he remained in his parents’
custody. 222 F.3d at 1234-35.
9
This interpretation of the special relationship doctrine aligns with that of
other circuits. See, e.g., J.R. v. Gloria, 593 F.3d 73, 76, 80 (1st Cir. 2010)
(applying doctrine to nonplacing official-defendants, but finding that conduct did
not shock the conscience); Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 141
(2d Cir. 1981) (“When individuals are placed in custody or under the care of the
government, their governmental custodians are sometimes charged with
affirmative duties, the nonfeasance of which may violate the constitution.”
(emphasis added)).
14
defendant-state official is only potentially liable if responsible for a child’s initial
placement. DeAnzona, 222 F.3d at 1234 (“A plaintiff must show involuntary
restraint by the government to have a claim under a special relationship theory, if
there is no custodial relationship there can be no constitutional duty. . . . The
state has a special relationship with only ‘individuals depend[ent] completely on
the state to satisfy their basic human needs.’” (alteration in original) (citations
omitted) (quoting Maldonado, 975 F.2d at 732-33)); Armijo, 159 F.3d at 1261
(“[I]f the state restrains an individual’s freedom to act to protect himself or
herself through a restraint on that individual’s personal liberty, the state may
thereby enter into a ‘special relationship’ during such restraint . . . .”); Liebson,
73 F.3d at 276 (“The first exception, known as the special relationship doctrine,
‘exists when the state assumes control over an individual sufficient to trigger an
affirmative duty to provide protection to that individual.’” (quoting Uhlrig, 64
F.3d at 572)); Yvonne L., 959 F.2d at 890 (“If defendants knew of the asserted
danger to plaintiffs or failed to exercise professional judgment with respect
thereto, . . . and if an affirmative link can be shown, then under the analysis set
forth hereafter defendants violated plaintiffs’ constitutional rights.”).
Second, the legal framework for this doctrine does not support limiting the
scope of the special relationship doctrine to only those individuals involved in a
child’s initial placement. In similar custodial relationships, such as involuntary
commitment, a state actor’s liability for violation of a patient’s constitutional
15
right does not turn on whether she participated in the actual confinement or
placement of the individual in the institution. See, e.g., Youngberg v. Romeo,
457 U.S. 307, 314-16, 324 (1982) (finding involuntarily committed patients
entitled to reasonable care and safety pursuant to their Fourteenth Amendment
substantive due process rights); Garrett v. Rader, 831 F.2d 202, 205 (10th Cir.
1987). When searching for the legal foundation for this exception, we find the
absence of such a requirement telling. Moreover, in light of this court’s previous
statement that “foster children, like involuntarily committed patients, are ‘entitled
to more considerate treatment and conditions’ than criminals,” it seems
incongruous that the protection extended to foster children would be so limited, as
Booker and Peagler argue. Yvonne L., 959 F.2d at 890.
Finally, if implemented, limiting exposure to liability to only those
involved in a child’s initial placement would lead to untenable results. Were we
to accept Booker and Peagler’s contention that only “the very individual, who has
made a placement (a deprivation of liberty), [] becomes responsible under the Due
Process Clause to protect the person who was deprived of liberty,” aberrant
consequences would abound. 10 Aplts. Reply Br. at 9. Who would be
constitutionally liable for protecting the foster child if the placing individual
dies? Would the placing individual be constitutionally liable for overseeing the
10
This is especially so when one considers the potential frequency foster
children transition between homes, presumably not always within the same
county, and the significant period of time spent in foster care.
16
foster child even after she left DHS employment? Thankfully, we need not
entertain such questions because, for reasons previously discussed, we do not
view the special relationship doctrine so narrowly.
Further, under the unique facts presented in this case, even if we were to
adopt Booker and Peagler’s more rigorous interpretation of the special
relationship doctrine, they will still fall within its coverage: Plaintiffs alleged in
their amended complaint that DCDHS placed Chandler back in Jon Phillips’s
home on January 20 and that Booker and Peagler were responsible for overseeing
Chandler’s case at the time of this second, subsequent placement. R. at 7, 16-17.
Consequently, Booker and Peagler’s argument that the special relationship
doctrine does not presently apply because they did not personally participate in
Chandler’s placement is not compelling. 11
Booker and Peagler urge that a placement-participation requirement is
necessary to prevent imposition of “reverse respondeat superior” liability on all
11
Booker and Peagler also argue that the state-created danger theory’s
requirement that the defendant’s conduct put the plaintiff at substantial risk
implies that the defendant-official must have participated in the child’s placement
under the special relationship doctrine. We are not persuaded by this comparison
because these doctrines are distinct: The operation of the special relationship
doctrine depends on the existence of a custodial, involuntary relationship between
an individual and the State; the state-created danger theory, however, does not
require such a relationship. Gray, 672 F.3d at 923 & n.10 (“[A]pplication of the
state-created danger theory is unnecessary and unwarranted where a custodial or
special relationship exists between the victim and the State because in that case,
the relationship itself gives rise to the State’s corresponding duty to protect the
victim.”).
17
state DHS employees. Again, they miss the point. The special relationship
between the State and the foster child is a necessary predicate to imposition of
liability under this doctrine, but is not sufficient to establish liability. Before any
state official may be held liable, her conduct must satisfy the elements outlined in
Yvonne L.: She must have known of the asserted danger or failed to exercise
professional judgment and such conduct must have a causal connection to the
ultimate injury incurred; moreover, her conduct must shock the conscience. See
DeShaney, 489 U.S. at 211 (Brennan, J., dissenting) (“[T]he Due Process Clause
is not violated by merely negligent conduct, . . . a social worker who simply
makes a mistake of judgment under what are admittedly complex and difficult
conditions will not find herself liable in damages under § 1983.”). Despite
Booker and Peagler’s assertion otherwise, no DHS employee could be liable
under a “reverse respondeat superior” theory for the actions of the department.
We find Booker and Peagler’s second argument against the applicability of
the special relationship doctrine equally unconvincing as their first. Booker and
Peagler contend the district court erroneously created an aggregate theory of
special relationships that extends liability well beyond its original boundary.
Specifically, they disagree with the district court’s conclusion that the special
relationship followed the jurisdiction of the county departments, and therefore,
the county department’s employees. Booker and Peagler contend the district
court reached this conclusion by erroneously relying upon Eleventh Amendment
18
case law to conclude that county departments are arms of the State. Citing
Graham v. Independent School District No. I-89, 22 F.3d 991 (10th Cir. 1994),
and Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226 (10th Cir.
1999), Booker and Peagler assert that DCDHS neither had a custodial relationship
with Chandler nor restricted Chandler’s freedom sufficient to deprive him of
liberty.
Both cited cases, however, do not stand for the proposition asserted:
Graham simply restated the principle that compulsory school attendance laws do
not create an affirmative duty to protect because no custodial relationship exists,
and Sutton involved only the state-created danger exception. Graham, 22 F.3d at
994-95 (“We hold foreseeability cannot create an affirmative duty to protect when
plaintiff remains unable to allege a custodial relationship.”); Sutton, 173 F.3d at
1237-38 (“Abandoning any theory that compulsory school attendance laws give
rise to a ‘special relationship,’ a question we do not reach, plaintiff-appellant
relies entirely on the ‘danger creation’ theory.”). Moreover, these cases are
readily distinguishable due to Chandler’s custodial relationship with the State as a
foster child, and Booker and Peagler provide no basis for concluding otherwise.
Booker and Peagler’s argument that they cannot be held liable under the
special relationship doctrine because DCDHS did not have custody of Chandler is
not persuasive. Here, Chandler was removed from his biological mother’s
custody and placed in the legal and physical custody of JCDHS which in turn
19
placed Chandler in a foster home. 12 Cf. Wooten v. Campbell, 49 F.3d 696, 699-
700 (11th Cir. 1995) (finding no special relationship when state had legal custody
over the child for the purpose of arranging visitation for noncustodial father, but
mother retained physical custody). As a foster child, Chandler relied upon the
State and its county departments, 13 via its placement of him in a foster home, for
his basic human needs. During the period relevant here, Chandler lived with his
foster parents in and attended school in Denver County. By January 20, at the
latest, DCDHS accepted responsibility for Chandler by investigating responses to
alleged abuse, after his removal from Jon Phillips’s home, and subsequently
placing Chandler back in Jon Phillips’s home in Denver County. DCDHS took
this action after communicating with JCDHS, which declined this referral on the
basis that the foster family resided in Denver County. Accordingly, DCDHS
12
It is unclear from the amended complaint the exact chain of events
regarding Chandler’s custody.
13
Pursuant to Colorado statutory law, “[t]he county departments or other
state designated agencies . . . serve as agents of the state department and shall be
charged with the administration of public assistance and welfare and related
activities in the respective counties in accordance with the rules and regulations
of the state department.” Colo. Rev. Stat. § 26-1-118(1), -115(1). Accordingly,
the county departments serve as agents of the State of Colorado. See Colo. Rev.
Stat. § 26-1-111(f); Cobbin ex rel. Cobbin v. City & Cnty. of Denver, 735 P.2d
214, 216-17 (Colo. App. 1987) (“The social services programs are matters of
exclusive statewide concern.”); Wigger v. McKee, 809 P.2d 999, 1004 (Colo.
App. 1990) (finding county social services departments “functional divisions of
the State Department of Social Services for the convenient administration of the
state program and are not independent entities separate and distinct from the
state.’” (quoting Nadeau v. Merit Sys. Council, 545 P.2d 1061, 1063 (Colo. App.
1975)).
20
effectively exercised custody over Chandler. See Henry A. v. Willden, 678 F.3d
991, 1003 (9th Cir. 2012) (finding custodial relationship sufficiently pled despite
defendant-officials’ argument that they did not have a special relationship because
foster children were technically in the custody of a specific county, not the State);
Waubanascum v. Shawano Cnty., 416 F.3d 658, 665-66 (7th Cir. 2005)
(concluding county overseeing foster child’s case and county where foster child
lived “had custody” despite neighboring county’s legal custody over foster child).
As of that date, Booker and Peagler were aware of Chandler’s circumstances and
were the custodial officials responsible for overseeing Chandler’s foster care
case. To conclude otherwise, as Booker and Peagler urge, would artificially
constrain the doctrine beyond reason.
This doctrine protects individuals who involuntarily enter state custody and
subsequently become reliant on the State, through its agencies and officials, to
provide their basic human needs, paramount among those safety. DeShaney, 489
U.S. at 200; Youngberg, 457 U.S. at 315 (“[T]his Court has noted that the right to
personal security constitutes a ‘historic liberty interest’ protected substantively by
the Due Process Clause.”). This involuntary, custodial relationship with the State
imposes a continuing constitutional duty on state custodial officials to safeguard
individuals in the State’s care. Consequently, we are persuaded that plaintiffs
sufficiently pled a custodial relationship between the State and Chandler to
potentially hold Booker and Peagler individually liable under the special
21
relationship doctrine.
Supervisory Liability
Booker and Peagler also argue the amended complaint does not sufficiently
plead a claim for supervisory liability under § 1983 because it does not allege
constitutionally depriving action by a DCDHS employee who was supervised by
either Booker or Peagler. However, Booker and Peagler failed to raise this issue
before the district court, rendering review on appeal inappropriate. See Richison
v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011) (finding with few
exceptions that “if [a] theory [raised for the first time on appeal] simply wasn’t
raised before the district court, we usually hold it forfeited”). “It is the general
rule, of course, that a federal appellate court does not consider an issue not passed
upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).
Professional Judgment
Booker and Peagler argue the district court erred in finding that plaintiffs
sufficiently pled that they failed to exercise their professional judgment. State
officials will only be held liable for violating a foster child’s Fourteenth
Amendment substantive due process rights if the official “knew of the asserted
danger to [a foster child] or failed to exercise professional judgment with respect
thereto, . . . and if an affirmative link to the injuries [the child] suffered can be
shown.” Yvonne L., 959 F.2d at 890. Whether the state official failed to exercise
professional judgment requires more than mere negligence; the official must have
22
abdicated her professional duty sufficient to shock the conscience. J.W., 647 F.3d
at 1011. Conduct is shocking to the conscience when the “‘degree of
outrageousness and [] magnitude of potential or actual harm [] is truly conscience
shocking.’” Armijo, 159 F.3d at 1262 (quoting Seamons v. Snow, 84 F.3d 1226,
1236 (10th Cir. 1996)). Conscience-shocking behavior evades precise definition
and “evolve[s] over time.” Id. We must consider three guiding principles when
evaluating a substantive due process claim: “(1) the need for restraint in defining
their scope; (2) the concern that § 1983 not replace state tort law; and (3) the need
for deference to local policymaking bodies in making decisions impacting upon
public safety.” Uhlrig, 64 F.3d at 573 (citations omitted).
We agree with the district court that the alleged facts more closely parallel
those of Johnson ex rel. Cano v. Holmes, 455 F.3d 1133 (10th Cir. 2006), rather
than J.W. v. Utah, 647 F.3d 1006 (10th Cir. 2011), as Booker and Peagler
suggest. In J.W., the court concluded that the plaintiffs failed to sufficiently
refute the evidence that the caseworker had considered the children’s history and
safety when making the placement decision—the conduct alleged to be an
abdication of duty. 647 F.3d at 1011 (finding that the plaintiffs failed to “argue
or cite to ‘particularized evidence’ showing that this decision ‘was an
impermissible deviation from professional judgment.’” (quoting Johnson, 455
F.3d at 1144)). Here, unlike in J.W., plaintiffs proffer particularized evidence
that Booker and Peagler impermissibly deviated from professional judgment by
23
dismissing Chandler’s case and failing to properly investigate referrals despite
evidence of Chandler’s continued abuse in disregard of Colorado Department of
Human Services’ procedure requiring a within 24-hours response. Specifically,
plaintiffs contend that Booker and Peagler ignored Chandler’s statements to
school officials, the emergency caseworker’s opinion, Chandler’s previous
suspicious injuries, Chandler’s five-week absence from school, and Mr. Phillips’s
statement to school officials that Chandler’s five-week absence was attributable to
“family problems.” Moreover, plaintiffs have sufficiently pled a causal
connection between the alleged abdication of duty and Chandler’s injuries: Had
Booker and Peagler timely investigated the April referral they would have
discovered Chandler’s declining health caused by his continued starvation and
dehydration.
These facts more closely resemble those in Johnson, where the court
determined questions of fact precluded summary judgment regarding whether a
caseworker abdicated her duty by failing to investigate, over a two-month span,
the child’s removal from day care, a new family member’s move into the home
with the child, and the firing of the child’s home health nurse. 455 F.3d at 1145
(“According to the personal representative’s expert witness, [] this was an
abandonment of professional judgment.”). 14 Viewing Booker’s and Peagler’s
14
Here, plaintiffs do not proffer an expert’s opinion that Booker’s and
Peagler’s conduct abdicated their duty because qualified immunity was raised in a
motion to dismiss—rather than a motion for summary judgment as in
24
conduct “in total,” the allegations in plaintiffs’ amended complaint are at least as
conscience-shocking as the facts in Johnson: In addition to Chandler’s continued
absence from school and removal from “the outside world,” here, there were
previous suspicions of abuse and Jon Phillips’s cryptic reasons for Chandler’s
absence. See id. at 1144; see also Armijo, 159 F.3d at 1264 (finding that
returning a suicidal special-education student to his home, where he had access to
firearms, “could be construed as conscience-shocking” behavior sufficient to
render summary judgment inappropriate).
As pled, Booker and Peagler ignored known or likely injuries and abuse to
Chandler, chose not to further investigate such possible abuse, and ignored the
danger posed by his continued residence in Jon Phillips’s home. See Currier v.
Doran, 242 F.3d 905, 920 (10th Cir. 2001) (finding caseworker’s failure to
investigate bruises and continued allegations of abuse, as well as responsibility
for court order granting custody to caretaker, could be conscience-shocking
behavior sufficient to survive dismissal). Of course, discovery may inform the
context of Booker’s and Peagler’s actions such that their behavior was not
conscience shocking. See Weise, 507 F.3d at 1265 (recognizing that “the denial
of qualified immunity at the dismissal stage does not preclude a renewal of that
defense at summary judgment after further factual development has occurred”).
However, construing all inferences in plaintiffs’ favor, as we must, the facts
Johnson—and the parties have not had the benefit of expert submissions.
25
alleged could be a conscience-shocking abdication of duty sufficient to allege a
constitutional violation. Accordingly, whether Booker and Peagler are entitled to
qualified immunity depends upon whether the constitutional right was clearly
established.
Clearly Established
Even if governmental officials participated in “constitutionally
impermissible conduct,” immunity will shield them from suit so long as their
conduct did not violate clearly established constitutional rights. Hope v. Pelzer,
536 U.S. 730, 739 (2002). Whether such a right was clearly established “turns on
the ‘objective legal reasonableness of the action, assessed in light of the legal
rules that were clearly established at the time it was taken.’” Pearson, 555 U.S. at
244 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
Booker and Peagler assert entitlement to qualified immunity because no
Supreme Court or Tenth Circuit case has ever “held that a government
employee[,] who was not involved in limiting an individual’s liberty, has a
constitutional duty to protect that individual,” and, therefore, “Ms. Booker [and]
Ms. Peagler did not have ‘fair warning’ that their alleged conduct could result in
liability.” Aplts. Reply Br. at 15. Booker and Peagler’s argument broadly is one
of “the level of generality at which the constitutional right must be ‘clearly
established.’” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.
2007). They do not dispute that case law has clearly established that foster
26
children have a Fourteenth Amendment constitutional right to be reasonably safe
while in the State’s custody. See, e.g., J.W., 647 F.3d at 1011 (citing Yvonne L.,
959 F.2d at 892-93) (“Indeed, the constitutional right of foster children to be kept
reasonably safe from harm has been clearly established since at least 1985.”).
Rather, they contend that because no case law explicitly delineates their
interpretation of the special-relationship exception—an argument contrary to their
previous assertion that the case law explicitly requires such participation—the law
was not clearly established. Booker and Peagler’s argument is untenable.
“Ordinarily, in order for the law to be clearly established, there must be 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.” Walker v. City of Orem, 451 F.3d 1139, 1151 (10th Cir.
2006) (quoting Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.
1992)). This generality does not mean that “an official action is protected by
qualified immunity unless the very action in question has previously been held
unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Rather, the
“contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. Since 1985, case law in
this circuit and the established weight of authority has clearly established that
state officials could violate foster children’s substantive due process rights if they
knew of an asserted danger to a foster child or failed to exercise professional
27
judgment with respect thereto. Booker and Peagler’s singular argument regarding
the construction of the special relationship doctrine does not negate that the
contours of foster children’s constitutional rights were clearly delineated in this
circuit as well as other circuits.
Accordingly, reasonable DHS officials overseeing the cases of foster
children were on notice that such conduct would violate a foster child’s
constitutional right. See Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.
1994). Consequently, it was apparent, in light of pre-existing law, to a reasonable
official in Booker’s and Peagler’s positions that failing to investigate the child
abuse referrals and dismissing Chandler’s case without investigation was an
abdication of duty that would violate Chandler’s substantive due process right to
be reasonably safe from harm as a foster child. See Moore, 438 F.3d at 1042-43.
Therefore, on the record presently presented, Booker and Peagler are not entitled
to qualified immunity.
IV
The district court correctly determined that plaintiffs sufficiently pled facts,
when taken as true, that show Booker and Peagler plausibly violated Chandler’s
substantive due process right to be reasonably safe while in foster care, which
right was clearly established at the time. Accordingly, the judgment of the
district court is AFFIRMED.
28