Currier v. Doran

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 1 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CHARLES C. CURRIER, as personal
representative of the Estate of Anthony
Michael Juarez, deceased; DEVONNE
ESPERANZA JUAREZ, as mother and
next friend of Latasha Juarez, a minor,

Plaintiffs-Appellees,

v. No. 99-2287
No. 99-2288
TOM DORAN, SHIRLEY MEDINA,
MELBA GONZALES, REGINA
SENTELL, in their personal capacity,

Defendants-Appellants,

and

KELLY ROBBINS, in her personal
capacity,

Defendant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-97-477-BB/JHG)
Paula I. Forney, of Legal Bureau-Risk Management, Santa Fe, New Mexico, for
Appellant Gonzales.

Timothy Flynn-O’Brien, Albuquerque, New Mexico, for Appellants Doran,
Medina and Sentell.

Charles K. Purcell, of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque,
New Mexico, (William S. Dixon of Rodey, Dickason, Sloan, Akin & Robb, P.A.,
and Michael L. Stout, of Roswell, New Mexico, with him on the briefs) for
Plaintiffs-Appellees.

Before SEYMOUR, and MURPHY, Circuit Judges, and KANE, * District Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiffs, the representatives of two minor children abused by their father,

brought suit pursuant to 42 U.S.C. § 1983 alleging Defendants violated their

fundamental rights under the Fourteenth Amendment of the United States

Constitution. Defendants Tom Doran, Shirley Medina, and Regina Sentell are

social workers for the Children, Youth and Families Department of the State of

New Mexico (“CYF”), and defendant Melba Gonzales is a supervisor for CYF. 1

*
Honorable John L. Kane, Jr., Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.

CYF was formerly known as the Human Services Department of the State
1

of New Mexico.

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 Defendants moved for summary judgment, arguing they were entitled to

qualified immunity. The district court treated the motions as motions to dismiss.

Defendants appeal the district court’s denial of their motions. Jurisdiction to

consider Defendants’ appeal arises under 28 U.S.C. § 1291. See Johnson v.

Fankell, 520 U.S. 911, 915 (1997) (“[A] Federal District Court order rejecting a

qualified immunity defense on the ground that the defendant’s actions—if

proved—would have violated clearly established law may be appealed

immediately as a ‘final decision’ within the meaning of the general federal

appellate jurisdiction statute.”). Because Plaintiffs have alleged a clearly

established constitutional claim against Defendants Doran and Gonzales, these

Defendants are not entitled to qualified immunity; this court therefore affirms the

district court’s denial of their motions for summary judgment. Because Plaintiffs

have not alleged a viable constitutional claim against Defendant Sentell, this court

reverses the district court’s denial of her motion for summary judgment. Because

the constitutional violation Plaintiffs state against Medina was not clearly

established at the time of the events underlying this suit, this court reverses the

district court’s denial of Medina’s motion for summary judgment.

II. FACTS AND PROCEDURAL HISTORY

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 Plaintiffs allege the following facts in their complaint and in their response

to Defendants’ motions for summary judgment. On April 30, 1993, Defendant

Medina visited the home of Devonne Juarez (“Juarez”) to investigate a report of

child neglect. Juarez is the natural mother of Latasha and Anthony Juarez, whose

abuse prompted this lawsuit. 2 Medina found Latasha and Anthony, who were both

under four years old, in the care of their five-year-old cousin. Medina discovered

that Juarez had left the state. Medina removed Latasha and Anthony from the

home and delivered the children into the physical custody of CYF.

On May 3, 1993, CYF petitioned the New Mexico Children’s Court

(“Children’s Court”) for an order formally granting legal custody of the children

to CYF. Medina stated in an affidavit supporting the petition that Christopher

Vargas, the father of Latasha and Anthony, had not supported the children and

had allowed them to live in “alarming conditions.” Medina had also been

informed by an associate of Vargas that Vargas worked evenings and would “have

a hard time taking care of the kids.”

During this time Defendant Doran became aware of Vargas’ history of

financial irresponsibility, which included having made only eight child-support

payments in the preceding three years. On May 10, 1993, the Children’s Court

2
Charles C. Currier is suing as personal representative of Anthony’s Estate,
and Juarez represents Latasha, a minor, as mother and next friend.

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held a custody hearing. Doran attended but said nothing about Vargas’ history of

child-support payments. The Children’s Court stated that “no parent, guardian,

custodian or other person is able or willing to provide adequate supervision and

care for the children.” Nevertheless, based on the recommendation of Medina, the

court granted physical custody of the children to Vargas while keeping legal

custody with CYF.

At some point during the following months, Vargas was also awarded legal

custody. Plaintiffs contend this occurred on October 19, 1993, and that Doran,

either through his failure to investigate and report to the Children’s Court or his

affirmative recommendation to the Children’s Court, was responsible for this

decision. Defendants maintain Vargas assumed legal custody on June 23, 1993.

The district court allowed limited discovery on this issue, but found it

unnecessary to resolve the issue in denying Defendants’ motions.

On July 22, 1993, Doran visited Latasha and Anthony at Vargas’ home.

Doran noticed a small bruise on Anthony’s cheek; Vargas’ girlfriend claimed the

bruise was the result of a fall on the playground. On August 3, 1993, Anthony

had another bruise when he arrived at the CYF office for a visit. This bruise was

also attributed to a fall. Doran did not further investigate either bruise.

Juarez returned to New Mexico in August 1993. On August 25 and

September 16, 1993, Juarez asserted to the children’s guardian ad litem that

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Vargas and his fiancee were physically abusing Latasha and Anthony. Defendant

Doran was told about at least one of these allegations but failed to investigate.

On August 31, 1993, during the course of a comprehensive psychological

evaluation conducted at CYF’s request, Juarez alleged that Vargas’ fiancee

punished Latasha and Anthony by dunking them in a bathtub full of water. Doran

learned of these accusations but failed to investigate.

On October 15, 1993, during a visit between Juarez and the children at the

CYF office, two bruises were noticed on Latasha’s back. When Latasha was

asked who gave her the bruises, she replied “Da, Da.” On October 20, 1993, the

guardian ad litem for Latasha and Anthony sent letters to Doran and Gonzales

urging a thorough investigation of the recent observations of bruises on Latasha’s

back. Doran did interview Vargas and his fiancee about the bruises; they

explained that the bruises had been caused by a bunk bed ladder which they had

since thrown away.

On November 17, 1993, bruises were noticed on Anthony’s face while he

was in the CYF office. Vargas’ fiancee claimed the bruises were the result of

Anthony’s fall from a bunk bed. CYF then removed Latasha and Anthony from

Vargas’ home and placed them with relatives. When questioned about the bruises

on Anthony’s cheek, Vargas explained to Doran that he had bitten Anthony on the

cheek while wrestling on the floor, but that he did not think he had bitten

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Anthony “that hard.” Latasha made some remarks indicating that “Ta Ta” had

bitten Anthony to punish him. There were also bite marks on Latasha that Vargas

could not explain. Doran prepared an affidavit for a November 19, 1993 meeting

with Gonzales in which he indicated that the children would be subject to further

abuse if permitted to stay with Vargas. In the meeting, however, Doran failed to

strongly advocate against return of the children to Vargas. Gonzales concluded

the children had to be returned to Vargas, which occurred on November 19, 1993.

On January 10, 1994, a request for an investigation of possible physical

abuse of Anthony was made to Defendant Sentell. Sentell received this request

and referred it to Medina for further action. Medina discovered bruises on

Anthony’s buttocks but concluded the bruises were the result of a fall. During the

visit Latasha told Medina that she was spanked with a belt.

On January 16, 1994, the children’s guardian ad litem filed a report

indicating that “Anthony and Latasha will be subject to further injury in their

current home situation” and recommended monitoring the situation. Despite this

recommendation, Medina and Doran then instructed Juarez to stop making

allegations of abuse because it was traumatizing the children. On March 16,

1994, Doran referred another allegation of abuse to Sentell. Sentell discovered

bruises on both Latasha and Anthony but concluded the injuries were not the

result of abuse.

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 On April 16, 1994, Vargas poured boiling water on Anthony, causing

Anthony severe burns over most of his body. When Doran learned of this

incident, he went to Vargas’ home, where he observed many indications of

violence. Doran removed Latasha, who was covered with bruises, from Vargas’

home and took her to the emergency room. Doctors at the emergency room

indicated that Anthony was bruised everywhere he was not burned. Defendants

then sought and gained custody of the children on CYF’s behalf. Anthony died in

an intensive care unit on May 3, 1994.

Plaintiffs filed this lawsuit in the United States District Court for the

District of New Mexico, claiming Defendants had violated Latasha and Anthony’s

rights under the Fourteenth Amendment. After the completion of the limited

discovery referred to above, Medina and Doran moved for summary judgment on

the grounds that DeShaney v. Winnebago County Department of Social Services

precluded Plaintiffs’ claims. 489 U.S. 189 (1989). Defendant Gonzales

independently moved for summary judgment, raising the same argument.

Gonzales also maintained, however, that even if DeShaney did not foreclose

Plaintiffs’ claims, the law was not clearly established at the time of the underlying

events and thus she was entitled to qualified immunity. The district court issued a

memorandum opinion and order stating that DeShaney did not foreclose

Plaintiffs’ claims but concluding the law was not clearly established at the time of

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the events underlying this suit. See Currier v. Doran, 23 F. Supp. 2d 1277, 1279-

83 (D.N.M. 1998) Thus, the district court denied Medina and Doran’s motion and

granted Gonzales’ motion. See id. at 1283.

The district court subsequently issued an order withdrawing the portion of

its memorandum opinion dealing with the issue of whether the law was clearly

established during the events underlying the suit, apparently because counsel for

Gonzales had raised the issue in her brief to the court but failed to do so in her

brief to Plaintiffs’ counsel. See Currier v. Doran, No. CIV 97-0477 BB/JHG, slip

op. at 1-2 (D.N.M. Aug. 19, 1999). Doran, Medina, and Sentell then joined

Gonzales in moving for summary judgment based on qualified immunity.

The district court again held that DeShaney did not preclude Plaintiffs’

claims. See id. at 6-10. The district court also concluded that at the time of the

events underlying the suit it was clearly established Defendants’ alleged conduct

could be the source of a constitutional violation, reversing its prior memorandum

opinion. See id. at 2-6. Thus, the district court denied Defendants’ motions for

summary judgment. See id. at 10.

III. DISCUSSION

A. Standard of Review

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 Although Defendants’ motions were filed as motions for summary

judgment, the district court treated them as motions to dismiss because discovery

had been limited to the question of when legal custody was given to Vargas.

Thus, all the allegations in Plaintiffs’ complaint were accepted as true. See

Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). The district court also

relied on additional facts disclosed in the limited discovery and alleged by

Plaintiffs in their response to Defendants’ motions for summary judgment.

Defendants argue that because matters outside the pleadings were

considered it was error for the district court to apply a motion to dismiss standard

rather than a summary judgment standard. Defendants’ argument, however,

would have left the district court with the option of either referring solely to the

complaint or determining whether the minimal evidence then available warranted

a trial. Plaintiffs could not properly respond to a factual challenge to their

complaint because the district court had allowed discovery only on the limited

question of when legal custody was granted to Vargas. In addition, it would have

been odd to prohibit Plaintiffs from relying on additional facts disclosed during

that discovery. As Plaintiffs correctly note, they could have amended their

complaint to include the new information as factual allegations. Thus, the district

court properly treated Defendants’ motions as motions to dismiss. See Fed. R.

Civ. P. 56(f) (stating that when the nonmovant cannot respond to a summary

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judgment motion the court “may order a continuance to permit . . . discovery to be

had or may make such other order as is just” (emphasis added)).

Whether Plaintiffs have stated a claim for which relief may be granted is a

question of law this court reviews de novo. See Sutton v. Utah State Sch. for the

Deaf & Blind, 173 F.3d. 1226, 1236 (10th Cir. 1999). Similarly, whether the law

on which Plaintiffs rely was clearly established at the time of the events

underlying this suit is also a question of law subject to de novo review. See

Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1260 (10th Cir. 1998). All of

Plaintiffs’ allegations are accepted as true. See Williams, 926 F.2d at 997.

B. Heightened Pleading Requirement

Defendants correctly note that this court requires plaintiffs to meet a

heightened pleading requirement once a defendant raises the defense of qualified

immunity. See, e.g., Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir.

1997); Sawyer v. County of Creek, 908 F.2d 663, 667 (10th Cir. 1990). The

heightened pleading standard requires plaintiffs to “do more than assert bare

allegations of a constitutional violation.” Breidenbach, 126 F.3d at 1293. The

plaintiff’s complaint must include “‘all of the factual allegations necessary to

sustain a conclusion that defendant violated clearly established law.’” Id. (quoting

Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987)). The factual allegations

must be “specific” and “non-conclusory,” and sufficient for a district court to

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determine that those facts, if proved, demonstrate the defendant is not entitled to

qualified immunity. Id. The heightened pleading requirement is an exception to

the notice pleading standard in Rule 8 of the Federal Rules of Civil Procedure and

“the accepted rule that a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Conley v. Gibson, 355

U.S. 41, 45-46 (1957).

Plaintiffs question whether this court’s heightened pleading requirement

survives the recent Supreme Court case of Crawford-El v. Britton, 118 S. Ct.

1584 (1998). Although we are generally bound by the prior precedent of this

court, there is an exception to this rule when that precedent is superceded by

contrary decisions of the Supreme Court. See United States v. Bell, 154 F.3d

1205, 1209 n.6 (10th Cir. 1998); United States v. Erving L., 147 F.3d 1240, 1246

(10th Cir. 1998). This court has recognized on several occasions the possibility

that Crawford-El might affect this court’s heightened pleading requirement, but

has yet to resolve that question in a published, precedential opinion. See Ramirez

v. Dep’t of Corr., 222 F.3d 1238, 1241 n.2 (10th Cir. 2000); see also Smith v.

Dep’t of Human Servs., No. 00-6046, 2000 WL 1480259, at *2 n.2 (10th Cir. Oct.

6, 2000) (unpublished disposition); Watkins v. Colo. Dep’t of Corr., No. 98-1063,

1999 WL 594584, at *1 (10th Cir. Aug. 9, 1999) (unpublished disposition). See

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generally Patricia M. Wald, Summary Judgment at Sixty, 76 Tex. L. Rev. 1897,

1925 & n.187 (suggesting that Crawford-El puts an end to judicially-crafted

heightened pleading requirements in qualified immunity cases). Because

application of the heightened pleading requirement affects the outcome of this

case, this court must consider its continued viability after Crawford-El.

The heightened pleading requirement is premised on “the purpose of the

qualified immunity doctrine itself.” Breidenbach, 126 F.3d at 1292. More

specifically, this court has linked the heightened pleading requirement to the

Supreme Court case of Harlow v. Fitzgerald, 457 U.S. 800 (1982):

When the Supreme Court reformulated its qualified immunity test in
Harlow to focus on the “objective reasonableness” of an officer’s
actions as opposed to his or her subjective intent, the Court sought to
shield government officials not only from the “substantial costs” of
subjecting officials to the risks of trial, but also from “[j]udicial
inquiry into subjective motivation,” including “broad-ranging
discovery and the deposing of numerous persons.” The Court held
that such inquiries “can be peculiarly disruptive of effective
government.” In keeping with this important concern for shielding
government officers from burdensome discovery in cases where
subjective intent is at issue, this court and several other circuits have
imposed a more stringent pleading requirement where a qualified
immunity defense is asserted.

Breidenbach, 126 F.3d at 1292 (citations omitted).

In Harlow the Supreme Court reconsidered qualified immunity law as it

existed at the time. Before Harlow a plaintiff could defeat a government

official’s defense of qualified immunity two ways: by demonstrating the official

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knew or should have known her action was unconstitutional (referred to by the

Court as the “objective element” of qualified immunity) or by demonstrating the

official acted with the malicious intent to cause injury (the “intent element” of

qualified immunity 3). See Harlow, 457 U.S. at 815. In Harlow, however, the

Court decided the intent element of qualified immunity had proved in practice to

be incompatible with the overall goal of qualified immunity, which is to prevent

government officials from being disrupted by a trial of insubstantial claims. See

id. at 815-17. The Court explained that because the question of an official’s

intent to cause harm could not usually be disposed of at summary judgment, many

plaintiffs were proceeding to trial against government officials on insubstantial

claims because the plaintiffs were able to easily create an issue of fact on whether

the government official had the subjective intent to harm them. See id. at 815-18.

The Court eliminated the intent element of qualified immunity, reasoning that

“bare allegations of malice should not suffice to subject government officials

either to the costs of trial or to the burdens of broad-reaching discovery.” Id. at

817-18. 4

3
The Supreme Court in Harlow actually referred to the latter option as the
“subjective element,” but for clarity this opinion will instead refer to this option
as the “intent element.” See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).

Intent, however, remains an element of a plaintiff’s affirmative case in
4

some instances. In Harlow, the Court dealt only with the defense of qualified
immunity. Many constitutional claims brought pursuant to 42 U.S.C. § 1983,
however, require proof that the government official acted with a prohibited

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 Thus, after Harlow, a plaintiff can defeat a defendant’s claim of qualified

immunity only by demonstrating the defendant violated “clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Id. at 818. After Harlow, many circuits imposed upon plaintiffs a

heightened pleading requirement, similar to this court’s, once qualified immunity

was raised as a defense. See, e.g., Branch v. Tunnell, 14 F.3d 449, 452 (9th Cir.

1994); Gooden v. Howard County, 954 F.2d 960, 969-70 (4th Cir. 1992); Elliott v.

Thomas, 937 F.2d 338, 344-45 (7th Cir. 1991).

In Crawford-El the Supreme Court examined the D.C. Circuit Court of

Appeal’s heightened burden of proof. The D.C. Circuit’s heightened-proof

standard applied when a plaintiff sued a government official, the government

official asserted the defense of qualified immunity, and the plaintiff’s cause of

action depended on proving improper motive of the defendant. See Crawford-El,

118 S. Ct. at 1588-91. The D.C. Circuit’s heightened burden of proof, applicable

at both summary judgment and trial, required plaintiffs to prove by clear and

convincing evidence defendant’s improper motive. See id. at 1590. Justice

Stevens, writing for a majority of the Court, expansively framed the issue before

the Court in Crawford-El as follows:

mindset, and Harlow does not alter what plaintiffs’ are required to prove on these
claims. See Crawford-El, 118 S.Ct. at 1592.

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 The broad question presented is whether the courts of appeals may
craft special procedural rules for [improper-motive] cases to protect
public servants from the burdens of trial and discovery that may
impair the performance of their official duties. The more specific
question is whether, at least in cases brought by prisoners, the
plaintiff must adduce clear and convincing evidence of improper
motive in order to defeat a motion for summary judgment.

Id. at 1587.

Ultimately, the Supreme Court rejected the D.C. Circuit’s heightened

burden of proof. See id. at 1596. The D.C. Circuit had justified its heightened

burden of proof requirement, like this court justifies its heightened pleading

requirement, on the Supreme Court’s opinion in Harlow. See id. at 1590. The

Court explained, however, that neither the specific holding in Harlow nor its

reasoning justified the D.C. Circuit’s heightened burden of proof. See id. at

1591-96.

The Court carefully distinguished Harlow as a case dealing only with the

defense of qualified immunity: Harlow “did not implicate the elements of the

plaintiff’s initial burden of proving a constitutional violation” nor “address any

question concerning the plaintiff’s affirmative case.” Id. at 1592, 1591. The

Court explained that although the decision in Harlow was motivated by a concern

that public officials be protected from the costs associated with defending against

lawsuits, particularly baseless ones, it did not follow that a defendant’s claim of

qualified immunity could always be resolved before at least some discovery was

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conducted. See id. at 1593-94 & 1594 n.14. In addition, the Court commented

that a heightened proof standard “alters the cause of action itself in a way that

undermines the very purpose of § 1983—to provide a remedy for the violation of

federal rights.” Id. at 1595.

The Court in Crawford-El also observed that neither federal statutory law

nor the Federal Rules of Civil Procedure gave any support to the heightened

burden of proof. See id. at 1595. In language particularly relevant to this court’s

heightened pleading requirement, the Supreme Court stated the following:

In the past we have consistently declined similar invitations to
revise established rules that are separate from the qualified immunity
defense. We refused to change the Federal Rules governing
pleading by requiring the plaintiff to anticipate the immunity defense,
Gomez, 446 U.S., at 639-640, or requiring pleadings of heightened
specificity in cases alleging municipal liability, Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507
U.S. 163, 164-169 (1993). We also declined to craft an exception to
settled rules of interlocutory appellate jurisdiction and rejected the
argument that the policies behind the immunity defense justify
interlocutory appeals on questions of evidentiary sufficiency.
Johnson v. Jones, 515 U.S. 304, 317- 318 (1995). Our reasons for
those unanimous rulings apply with equal force to the imposition of a
clear and convincing burden of proof in cases alleging
unconstitutional motive.
As we have noted, the Court of Appeals adopted a heightened
proof standard in large part to reduce the availability of discovery in
actions that require proof of motive. To the extent that the court was
concerned with this procedural issue, our cases demonstrate that
questions regarding pleading, discovery, and summary judgment are
most frequently and most effectively resolved either by the
rulemaking process or the legislative process. See, e.g.,
Leatherman, 507 U.S., at 168-169.

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Crawford-El, 118 S. Ct. at 1595 (duplicate citations omitted).

The Seventh Circuit has recently cited Crawford-El for the proposition that

“[c]ivil rights complaints are not held to a higher standard than complaints in

other civil litigation.” Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998). But

see Elliott, 937 F.2d at 344-45 (explaining, prior to issuance of Crawford-El, the

Seventh Circuit’s heightened pleading requirement). Similarly, the D.C. Circuit,

the very court from which Crawford-El appealed to the Supreme Court, has

recently stated that the Supreme Court “held [in Crawford-El] that plaintiffs

making constitutional claims based on improper motive need not meet any special

heightened pleading standard.” See Harbury v. Deutch, 233 F.3d 596, 611 (D.C.

Cir. 2000). The First Circuit, however, has concluded that Crawford-El does not

affect its heightened pleading requirement. See Judge v. City of Lowell, 160 F.3d

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67, 72-75 (1st Cir. 1998). 5 In upholding their heightened pleading requirement,

the First Circuit relied on the following language from Crawford-El:

In Harlow we noted that a “‘firm application of the Federal
Rules of Civil Procedure’ is fully warranted” and may lead to the
prompt disposition of insubstantial claims. 457 U.S., at 819-820, n.
35 (quoting Butz, 438 U.S., at 508). Though we have rejected the
Court of Appeals’ solution, we are aware of the potential problem
that troubled the court. It is therefore appropriate to add a few
words on some of the existing procedures available to federal trial
judges in handling claims that involve examination of an official’s
state of mind.
When a plaintiff files a complaint against a public official
alleging a claim that requires proof of wrongful motive, the trial
court must exercise its discretion in a way that protects the substance
of the qualified immunity defense. It must exercise its discretion so
that officials are not subjected to unnecessary and burdensome
discovery or trial proceedings. The district judge has two primary
options prior to permitting any discovery at all. First, the court may

5
Although various Sixth Circuit cases have touched upon Crawford-El’s
impact on its heightened pleading requirement, it does not appear a firm
resolution has been reached. See Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th
Cir. 1999) (en banc) (plurality opinion) (stating, in the resolution of a motion for
summary judgment, that “Crawford-El disallows any type of ‘heightened pleading
standard’ to avoid” analyzing the subjective motivation of the defendant); Kain v.
Nesbitt, 156 F.3d 669, 672 n.4, 673 (6th Cir. 1998) (first distinguishing between
burdens of proof and pleading requirements but later noting that defendants are
not “at the mercy of vague generalized pleadings” because trial courts may
require specific pleading from a plaintiff); Kesterson v. Moritsugu, No. 96-5898,
1998 WL 321008, at *4 (6th Cir. June 3, 1998) (unpublished disposition)
(explaining that plaintiff’s complaint was not held to a heightened pleading
standard); id. at *8-10 (Moore, C.J., dissenting) (accusing the majority of
applying a heightened pleading standard and arguing the standard is not proper
after Crawford-El); Smith v. Bd. of County Comm’rs, No. 97-3107, 1998 WL
321045, at *2 (6th Cir. June 2, 1998) (unpublished disposition) (applying the
Sixth Circuit’s heightened pleading requirement but noting that the Supreme
Court in Crawford-El approved a trial court’s requirement of specificity).

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 order a reply to the defendant’s or a third party’s answer under
Federal Rule of Civil Procedure 7(a), or grant the defendant's motion
for a more definite statement under Rule 12(e). Thus, the court may
insist that the plaintiff “put forward specific, nonconclusory factual
allegations” that establish improper motive causing cognizable injury
in order to survive a prediscovery motion for dismissal or summary
judgment. Siegert v. Gilley, 500 U.S. 226, 236 (1991) (KENNEDY,
J., concurring in judgment). This option exists even if the official
chooses not to plead the affirmative defense of qualified immunity.

Crawford-El, 118 S. Ct. at 1596-97 (duplicate citations omitted).

This court respectfully disagrees with the First Circuit in its conclusion that

the above language from Crawford-El saves circuit-imposed heightened pleading

requirements. The passage in reality constitutes a rejection of deviations from the

Federal Rules of Civil Procedure combined with an instruction to federal trial

judges to exercise their discretion under the Federal Rules to manage cases in a

way that serves both the purposes of qualified immunity and § 1983. See id. at

1596-98. Furthermore, the Court in Crawford-El was careful to distinguish

between the D.C. Circuit’s solution to protect government officials from

insubstantial claims, which it rejected, and the options otherwise available under

the Federal Rules of Civil Procedure for federal trial judges to deal with this

concern. See id.; see also id. at 1587 (defining the broad issue presented in the

case as whether “the courts of appeals may craft special procedural rules” for

cases involving constitutional claims of improper motive against government

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officials (emphasis added)). This court’s analysis is buttressed by the following

language in Crawford-El:

It is the district judges rather than appellate judges like
ourselves who have had the most experience in managing cases in
which an official’s intent is an element. Given the wide variety of
civil rights and “constitutional tort” claims that trial judges confront,
broad discretion in the management of the factfinding process may be
more useful and equitable to all the parties than the categorical rule
imposed by the Court of Appeals.

Id. at 1598. Thus, the circuit courts are admonished in civil rights cases not to

impose management rules which deviate from those express in the statute and

rules of procedure, and the district courts are encouraged to use the provisions of

the Federal Rules of Civil Procedure to manage these cases.

We conclude that this court’s heightened pleading requirement cannot

survive Crawford-El. There is no relevant difference between the D.C. Circuit’s

heightened burden of proof at summary judgment and this court’s heightened

pleading requirement which justifies the continuing viability of the latter after

Crawford-El. See Nance, 147 F.3d at 590 (citing Crawford-El for the proposition

that “civil rights complaints are not held to a higher standard than complaints in

other civil litigation”). Like the D.C. Circuit’s heightened burden of proof, this

court’s heightened pleading requirement was based on Harlow. See Breidenbach,

126 F.3d at 1292. Nevertheless, as the Supreme Court made clear in Crawford-

El, neither the holding nor the reasoning of Harlow, a qualified immunity case,

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warranted a change in the requirements of a plaintiff’s affirmative case. See

Crawford-El, 118 S. Ct. at 1590-94. Like the D.C. Circuit’s heightened proof

requirement, this court’s heightened pleading requirement finds no support in the

Federal Rules of Civil Procedure and constitutes a deviation from the notice-

pleading standards of Rule 8. See Fed. R. Civ. P. 8(a) (“A pleading which sets

forth a claim for relief . . . shall contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief . . . .”); Fed. R. Civ. P. 9(b)

(“Malice, intent, knowledge, and other condition of mind of a person may be

averred generally.”). Additionally, the manner in which the Court framed the

“broad” question presented for appeal—“whether the courts of appeals may craft

special procedural rules for [civil rights cases that require proof of improper

motive] to protect public servants from the burdens of trial and

discovery”—suggests that the Court’s ruling is not limited to the D.C. Circuit’s

heightened burden of proof. See Crawford-El, 118 S. Ct. at 1587. Finally, to the

extent the Supreme Court considered whether a court may require a plaintiff to

plead “‘specific, nonconclusory factual allegations’” to survive a prediscovery

motion for dismissal, it concluded this option resides in the discretion of federal

trial judges, not federal circuit courts. Id. at 1596-97 (quoting Siegert v. Gilley,

500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)).

-22-
 This court reiterates that trial judges retain discretion to order a reply to a

defendant’s answer, grant a defendant’s motion for a more definite statement, or

tightly confine discovery. See Fed. R. Civ. P. 7(a), 12(e); Crawford-El, 118 S. Ct.

at 1596-97. The district court in this case, however, thought Plaintiffs had

alleged sufficient facts to be allowed discovery. See Currier v. Doran, No. CIV

97-0477 BB/JHG, slip op. at 7 (D.N.M. Aug. 19, 1999) (“The Court cannot say

Plaintiffs would be unable to recover damages from Doran under any set of facts

alleged in the complaint.”); id. at 8 (“[T]he Court believes Plaintiffs have alleged

sufficient facts to be allowed discovery . . . .”); id. at 9 (“Given the stay of

discovery that has been imposed in this case, it would not be fair to require the

Plaintiffs to assert more facts than they have been able to allege at this point.”).

Therefore, this court will review Defendants’ motions under the customary motion

to dismiss standard: “[A] complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-

46.

C. Constitutional Violation

Once a defendant raises the defense of qualified immunity in the context of

a motion to dismiss, a court must first determine whether the plaintiff has asserted

a violation of federal law. See Ramirez, 222 F.3d at 1241; Dill v. City of Edmond,

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155 F.3d 1193, 1204 (10th Cir. 1998). In this case Plaintiffs allege that their

Fourteenth Amendment rights were violated when Defendants affirmatively

removed them from the custody of their mother and then placed them in the

custody of their abusive father. Plaintiffs also allege Defendants violated their

Fourteenth Amendment rights by failing to protect them while they were in state

custody and by failing to protect them once they were placed in the custody of

their father.

Defendants maintain Plaintiffs’ claims are barred by DeShaney. In

DeShaney the Supreme Court considered the Fourteenth Amendment claims of

Joshua Deshaney, a victim of severe child abuse, against the local department of

social services and the employees thereof. See Deshaney, 489 U.S. at 191.

Joshua lived with his natural father. In 1982, the Winnebago County Department

of Social Services (“DSS”) first investigated abuse charges against Joshua’s

father. The DSS took no action to remove Joshua at the time. In 1983 Joshua

was admitted to a hospital with multiple bruises and abrasions. DSS obtained an

order placing Joshua in the temporary custody of the hospital. DSS, along with

other professionals assembled by the county to assess Joshua’s situation, decided

there was insufficient evidence of child abuse to retain Joshua in the custody of

the court. For the next six months the assigned DSS caseworker was made aware

of several factors indicating that Joshua was being abused, but DSS took no

-24-
action. Joshua was eventually beaten so violently that he fell into a life-

threatening coma. See id. at 192-93.

Joshua claimed DSS and its employees had violated his constitutional rights

by “failing to intervene to protect him against a risk of violence at his father’s

hands of which they knew or should have known.” Id. The Supreme Court

rejected Joshua’s claim. The Court stated that the Due Process Clause “generally

confer[s] no affirmative right to governmental aid, even where such aid may be

necessary to secure life, liberty, or property interests of which the government

itself may not deprive the individual.” Id. at 196. The Court, however, went on

to state the following:

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. That the
State once took temporary custody of Joshua does not alter the
analysis, for when it returned him to his father’s custody, it placed
him in no worse position than that in which he would have been had
it not acted at all; the State does not become the permanent
guarantor of an individual’s safety by having once offered him
shelter. Under these circumstances, the State had no constitutional
duty to protect Joshua.

Id. at 201.

Relying on the above language in DeShaney, this court has held that “state

officials can be liable for the acts of third parties where those officials ‘created

the danger’ that caused the harm.” Seamons v. Snow, 84 F.3d 1226, 1236 (10th

Cir. 1996) (quoting Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995)). In

-25-
Armijo, this court delineated the contours of a “danger creation” cause of action.

See 159 F.3d at 1262-63. To make out a proper danger creation claim, a plaintiff

must demonstrate that (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) defendants’ conduct put plaintiff at substantial risk of serious,

immediate, and proximate harm; (4) the risk was obvious or known; (5) defendant

acted recklessly in conscious disregard of that risk; and (6) such conduct, when

viewed in total, is conscience shocking. See id.

Defendants, relying on DeShaney, argue that Plaintiffs have not alleged a

constitutional violation because custody was simply transferred from one natural

parent to another; thus, Defendants claim, they did not create the danger.

DeShaney does not, however, compel this conclusion. In this case, Anthony and

Latasha were removed from their mother and placed with their father. In

DeShaney, Joshua was removed from his father and then returned to his father.

See DeShaney, 489 U.S. at 192. Anthony and Latasha would not have been

exposed to the dangers from their father but for the affirmative acts of the state;

the same cannot be said for Joshua in DeShaney.

The limited caselaw does not support Defendants’ theory that they are

shielded by DeShaney because Anthony and Latasha were placed in the custody of

-26-
their natural father. In Ford v. Johnson, the United States District Court for the

Eastern District of Pennsylvania considered the constitutional claims of the

mother of a child who had been beaten to death by his father. See 899 F. Supp.

227, 233 (E.D. Pa. 1995). The child had been in state custody before being

placed with her father by court order after an investigation and recommendation

by local social workers. See id. The court decided that the mother had stated a

constitutional claim by alleging that the social workers failed to investigate the

father and failed to report information to the juvenile court which would have

disqualified the father from gaining custody. See id. at 232. The court stated that

just because “the child is placed with a parent as opposed to a foster parent

should not change the standards by which social agencies and their employees

conduct their investigations.” Id. at 233.

Similarly, in Tazioly v. City of Philadelphia, the same court held that the

“state-created danger theory may apply in cases where a state actor has rendered a

minor more vulnerable to injury at the hands of the minor’s biological parent.”

No. CIV.A. 97-CV-1219, 1998 WL 633747, at *11 (E.D. Pa. Sept. 10, 1998)

(unpublished disposition). In Tazioly the City Department of Human Services

removed a child from a foster parent and placed him in the custody of his mother.

The court distinguished DeShaney by noting that in DeShaney there was

insufficient evidence of abuse to retain the child in state custody, while defendant

-27-
social workers in the Tazioly case had actual knowledge that the biological

mother was “unfit and dangerous.” Id. at *9.

While language in the Seventh Circuit’s opinion in K.H v. Morgan, 914

F.2d 846, 852-53 (7th Cir. 1990), suggests that placing a child with a family

member might insulate the state from constitutional liability, the Seventh Circuit

seems to have since reconsidered its earlier dicta. In a recent case involving a

suit brought against social workers as the result of injuries suffered while a child

was abused at her father’s home, the court stated that “[i]f the [social workers]

knowingly placed [plaintiff] in a position of danger, they would not be shielded

from liability by the decision in DeShaney.” Bank of Ill. v. Over, 65 F.3d 76, 78

(7th Cir. 1995). Furthermore, the reasoning used by the Seventh Circuit in

Morgan actually supports constitutional liability when custody is transferred from

one parent to another. The court stated that “[t]he state could have left [plaintiff]

to the tender mercies of her parents without thereby violating her rights under the

Constitution. But having removed her from their custody the state assumed at

least a limited responsibility for her safety.” Morgan, 914 F.2d at 849. Under

this reasoning it would be arbitrary to allow the state to avoid this responsibility

merely by placing the child with another relative. See S.S. v. McMullen, 225 F.3d

960, 968 (8th Cir. 2000) (en banc) (Gibson, J., dissenting) (“These distinctions . .

-28-
. between foster parents and natural parents [] are arbitrary.”), petition for cert.

filed, 69 U.S.L.W. 3410 (U.S. Dec. 8, 2000) (No. 00-946).

Thus, neither DeShaney nor other authorities shield the Defendants. When

the state affirmatively acts to remove a child from the custody of one parent and

then places the child with another parent, DeShaney does not foreclose

constitutional liability.

Having established that DeShaney does not foreclose liability, we now

examine each of the Defendants individually to determine if Plaintiffs have

pleaded sufficient facts to state a cause of action under the danger creation theory.

1. Doran

Doran first became involved in the case before the May 10, 1993, custody

hearing granting physical custody to Vargas and legal custody to CYF. At the

hearing Doran failed to alert the Children’s Court to Vargas’ history of financial

irresponsibility. Just a short time later, in late July and early August, Doran

noticed bruises on the children and did not investigate further after being told the

bruises were the result of falls. Three times during the late summer of 1993,

Juarez made allegations that Vargas and his girlfriend were abusing the children,

including the very specific accusation that the children were dunked in a bathtub

full of water as punishment; Doran did not investigate these allegations. On

October 19, 1993, Doran was responsible for the Children’s Court’s decision to

-29-
grant Vargas legal custody, through either his failure to investigate and report to

the court or through his affirmative recommendation. 6

Plaintiffs also make various allegations as to Doran’s involvement after

legal custody was awarded to Vargas. The district court considered these post-

custody allegations in determining that Plaintiffs had met the requirements of

danger creation liability. See Currier v. Doran, No. CIV 97-0477 BB/JHG, slip

op. at 6-7 & n.3 (D.N.M. Aug. 19, 1999). The danger creation theory, however,

focuses on the affirmative actions of the state in placing the plaintiff in harm’s

way. Plaintiffs cannot rely on Defendants’ failure to intervene once custody was

given to Vargas to state a danger creation claim if the Defendants’ affirmative

conduct in placing the child with Vargas does not satisfy the Armijo danger

creation requirements. As the Supreme Court stated in DeShaney, “the State does

not become the permanent guarantor of an individual’s safety by having once

offered him shelter.” DeShaney, 489 U.S. at 201. Thus, we will only consider

Doran’s conduct before legal custody was given to Vargas.

6
The parties appear to agree that legal custody, not physical custody, is the
benchmark date by which to analyze Plaintiffs’ claims. There is conflicting
evidence as to when legal custody was granted Vargas; Plaintiffs claim legal
custody was awarded on October 19, 1993, while Defendants argue legal custody
was transferred on June 23, 1993. The district court allowed discovery on this
limited question, but did not decide the issue. See Currier v. Doran, No. CIV 97-
0477 BB/JHG, slip op. at 2 (D.N.M. Aug. 19, 1999). Because we are treating
Defendants’ motions as motions to dismiss, we will assume that legal custody was
given to Vargas on October 19, 1993, as Plaintiffs allege.

-30-
 Doran’s conduct meets the danger creation theory of liability spelled out in

Armijo. Doran “created the danger or increased the plaintiff[s’] vulnerability to

the danger” through his failure to investigate the numerous bruises and allegations

of abuse and his responsibility for the court order granting legal custody to

Vargas. 7 Armijo, 159 F.3d at 1263; see also Ford, 899 F. Supp. at 233 (finding a

constitutional claim was stated against defendant social workers who failed to

investigate and report to juvenile court circumstances concerning father given

custody of a child he subsequently beat to death). Latasha and Anthony were

members “of a limited and specifically definable group”: children the state has

removed from their natural parent and taken into state custody. Armijo, 159 F.3d

at 1262 (quotation omitted). By failing to investigate the allegations of child

abuse and by recommending that Vargas assume legal custody, Doran’s conduct

put Anthony and Latasha at obvious risk of serious, immediate, and proximate

harm, a harm that Doran recklessly and consciously disregarded.

7
It is true that the conduct Plaintiffs complain of is partially a failure by
Doran to act on particular allegations of abuse. Doran’s failure to investigate
allegations of abuse while the children were in state legal custody should be
distinguished, however, from a claim that the state failed to rescue the children
once legal custody was given to Vargas. Doran’s failure to investigate allegations
of abuse should be viewed in the general context of the state’s affirmative
conduct in removing the children from their mother and placing the children with
their father.

-31-
 It is a somewhat closer question whether Doran’s conduct is “conscience

shocking.” Id. at 1263 (quotation omitted). This court has recognized three basic

principles guiding the evaluation of substantive due process claims that are

particularly relevant to this determination: (1) the general need for restraint; (2)

the concern that § 1983 not replace state tort law; and (3) the need for deference

to local policy decisions impacting public safety. See Uhlrig v. Harder, 64 F.3d

567, 573 (10th Cir. 1995). Armijo involved a decision by school officials to send

home a distraught and potentially suicidal student, when it was known that there

were firearms present at his house and that his parents were not home, despite

school disciplinary policy that prevented out-of-school suspensions when a

student’s parent was not home. Armijo, 159 F.3d at 2156-57. This court

determined that this decision could be “construed as conscience-shocking,

depending on context as determined after a full trial.” Id. at 1264.

The allegations in Plaintiffs’ complaint against Doran, if true, are at least

as conscience-shocking as the facts in Armijo. It is important to remember that

Doran’s conduct must be “viewed in total,” and thus the cumulative impression of

Doran’s conduct should be considered. Id. In light of the initial information

Doran had about Vargas’ financial irresponsibility, and in light of the numerous

bruises and allegations of abuse, Doran’s failure to investigate the bruises and

allegations and his subsequent responsibility for the court order granting Vargas

-32-
legal custody could be conscience shocking, depending, of course, on further

context as provided by discovery. See id. Thus, Plaintiffs have alleged sufficient

facts to support a danger creation claim against Doran.

2. Sentell

Defendant Sentell’s limited involvement in this matter came only after

Vargas had been awarded both physical and legal custody. On January 10, 1994,

a request for an investigation of possible physical abuse of Anthony was made to

Sentell. Sentell reviewed the file on Doran’s November investigation of abuse

and then referred the request to Medina for further action. On March 16, 1994,

Doran referred another allegation of abuse to Sentell. Sentell discovered bruises

on both Latasha and Anthony but concluded the injuries were not the result of

abuse.

Plaintiffs do not argue that Sentell was personally involved in creating the

danger the children faced. Instead, Plaintiffs argue Sentell was constitutionally

required to rescue the children because she was aware that her fellow co-workers

had created the danger.

This court has stated that “state officials may be liable for injuries caused

by a private actor where those officials created the danger that led to the harm.”

Sutton, 173 F.3d at 1237 (emphasis added). In Sutton, this court refused to extend

constitutional liability against one state defendant because he had not

-33-
affirmatively created a dangerous situation, even though another state actor had

created the dangerous situation. See id. at 1239. Plaintiffs distinguish Sutton by

noting that Sentell, unlike the defendant in Sutton, was aware that other state

actors had created the danger and was presented with a clear opportunity to rescue

the children. Although this is perhaps a closer case than Sutton, Sentell

nevertheless had no constitutional duty to rescue the children. The language of

Sutton explaining that only officials who created the danger might have a duty to

rescue, the principle that the “Due Process Clauses generally confer no

affirmative right to government aid,” and the general need for restraint in

evaluating substantive due process claims all dictate the conclusion that Sentell

had no constitutional duty to rescue. DeShaney, 489 U.S. at 196; see also Uhlrig,

64 F.3d at 573 (recognizing the need for restraint in evaluating substantive due

process claims). Thus, because Plaintiffs have not alleged a constitutional

violation by Sentell, the district court’s denial of Sentell’s motion is reversed.

3. Medina

Defendant Medina made the initial visit to Juarez’s home, removed the

children from the home, and delivered them into the physical custody of CYF.

Medina conducted an investigation and reported in the custody hearing that

Vargas had not supported the children while they were with Juarez. Medina then

had no involvement in the case until after physical and legal custody was

-34-
transferred to Vargas. On January 10, 1994, Medina investigated an abuse

charge. Medina found bruises on Anthony’s buttocks but concluded the bruises

were the result of a fall. During this visit, Latasha told Medina that she had been

spanked with a belt. Medina’s last involvement in the case came when she

instructed Juarez to stop making allegations of abuse because it was traumatizing

the children.

Medina’s involvement in the initial removal of the children from Juarez

cannot support a danger creation claim. Moreover, the January 10, 1994,

investigation by Medina came after legal and physical custody had been

transferred to Vargas. Because Medina did not create the danger, and because

Medina is not constitutionally required to rescue a plaintiff from danger created

by another state actor, Medina was not constitutionally obligated to rescue the

children during the January 1994 visit.

Plaintiffs argue that Medina can be liable for danger creation because she

instructed Juarez to stop making allegations of abuse. Because of this affirmative

conduct, Plaintiffs reason, Juarez was discouraged from reporting additional signs

of abuse, and the risk to the children was intensified. After an examination of

similar cases in other circuits, this court concludes that Plaintiffs have alleged a

constitutional violation by Medina in her instruction to Juarez to stop making

allegations of abuse.

-35-
 In Dwares v. City of New York, 985 F.2d 94, 96-97 (2nd Cir. 1993), flag-

burning demonstrators alleged that police officers had violated their constitutional

rights when the police officers told “skinheads” that they would not interfere if

the skinheads assaulted the demonstrators. The Second Circuit concluded that a

constitutional violation had been alleged, distinguishing the case from DeShaney.

See id. at 98-99. The court explained that the police officer’s affirmative

conduct had made the demonstrators more vulnerable to assault, even if the police

officers were under no constitutional duty to rescue the demonstrators from an

assault. See id. at 99.

Freeman v. Ferguson, 911 F.2d 52, 53-54 (8th Cir. 1990), involved a claim

that the police chief had directed officers not to respond to a woman’s complaints

that her estranged husband was violating his restraining order. The estranged

husband, a close friend of the police chief, eventually killed his former wife. See

id. The Eighth Circuit distinguished DeShaney and reversed the trial court’s

dismissal of the claim by the wife’s estate against the police chief, noting that the

murder was “the result of an affirmative act by a state actor to interfere with the

protective services which would have otherwise been available in the

community.” Id. at 54; cf. Ross v. United States, 910 F.2d 1422, 1431 (7th Cir.

1990) (allowing recovery under the Constitution for injury resulting from state

prevention of private rescue attempt).

-36-
 While reiterating the basic holding of DeShaney that the government is

under no constitutional obligation to rescue private citizens from harm, these

cases also illustrate that the state can be liable when it affirmatively places

private citizens in harm’s way by removing what would otherwise be safety

valves. This court has also stated that the state creates danger when it cuts off

potential sources of private aid. See Armijo, 159 F.3d at 1263 (quoting from

Johnson v. Dallas Ind. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994)). By

discouraging Juarez from reporting additional indications of abuse, Medina

increased the children’s vulnerability to Vargas’ abuse. While Medina certainly

was not constitutionally required to rescue the children, her comments to Juarez

allegedly discouraged the mother from reporting further evidence of abuse to

either the police or CYF, which might then have acted to rescue the children.

That the potential aid Medina’s conduct tended to foreclose was from a

state source rather than a private source is not constitutionally significant. The

Eighth Circuit stated in Freeman that a state actor cannot “interfere with the

protective services which would have otherwise been available in the

community.” 911 F.2d at 54. This is precisely what Medina did when she

instructed Juarez to stop making allegations of abuse. This court’s language in

Armijo stating that the state can be liable when it cuts off potential sources of

private aid does not preclude today’s decision that a state actor can also be

-37-
constitutionally liable when it cuts off potential sources of state aid. Although

Medina was constitutionally free to ignore the pleas of Juarez and offer no

assistance, her behavior allegedly discouraged Juarez from seeking the help of

other CYF employees or other governmental sources of help such as the police.

Keeping in mind that “a complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief,” this court agrees

with the district court that Plaintiffs have properly alleged a danger creation claim

against Medina. Conley, 355 U.S. at 45-46. Medina increased the children’s

vulnerability to Vargas, the first requirement of a danger creation cause of action.

Medina’s conduct could have put Anthony and Latasha at obvious risk of serious,

immediate, and proximate harm, a harm that Medina recklessly and consciously

disregarded. Medina’s conduct could be conscience shocking, depending on

further context as provided by discovery. See Armijo, 159 F.3d at 1264. Thus,

assuming Plaintiffs will be able to prove that Medina’s conduct was a cause of the

harm to the children, Plaintiffs have alleged a danger creation constitutional claim

against Medina.

4. Gonzales

Plaintiffs allege that Gonzales “knowingly, recklessly, or with deliberate

indifference toward and callous disregard for the rights of Latasha and Anthony,

-38-
failed to instruct, supervise, control, and discipline on a continuing basis

Defendants Medina, Doran, and Sentell in their duties so as to refrain from

depriving Latasha and Anthony of their constitutional and statutory rights.” In

the context of a motion to dismiss, this court agrees with the district court that

Plaintiffs have properly alleged that Gonzales, in her role as supervisor, deprived

Plaintiffs of their constitutional rights. See Conley, 355 U.S. at 45-46.

This court has stated that when “a superior’s failure to train amounts to

deliberate indifference to the rights of persons with whom his subordinates come

into contact, the inadequacy of training may serve as the basis for § 1983

liability.” Sutton, 173 F.3d at 1240. In addition, as with all substantive due

process claims, the supervisor’s conduct must shock the conscience. See id. at

1241. Plaintiffs claim that Gonzales had knowledge that the alleged

unconstitutional behavior by Doran and Medina was occurring. Having

knowledge that subordinates are depriving young children of their constitutional

rights, Gonzales’ failure to correct this conduct amounts to a deliberate

indifference to the rights of Anthony and Latasha that could be conscience

shocking, depending on context as provided by discovery. Plaintiffs have

therefore alleged a constitutional deprivation by Gonzales in her role as

supervisor. See id. at 1241 (finding supervisor liability when assault was

committed by private actor).

-39-
D. Clearly Established Law

Once defendants raise the defense of qualified immunity, the plaintiff must

demonstrate to the court that the law on which the plaintiff relies was clearly

established at the time of the defendants’ actions. See Hilliard v. City & County

of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991). The plaintiff must prove the

right was sufficiently clear that a reasonable official would have understood that

his conduct violated the right. See Anderson v. Creighton, 483 U.S. 635, 640

(1987). “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.” Medina, 960 F.2d at 1498. It is not necessary, however, for

plaintiffs to find a case with exact corresponding factual circumstances;

defendants are required to make “reasonable applications of the prevailing law to

their own circumstances.” Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th

Cir. 1999). In addition, contrary authority from other circuits does not preclude a

finding that the law in this circuit was clearly established, if the contrary authority

can be distinguished. See Anaya v. Crossroads Managed Care Sys., 195 F.3d

584, 594 (10th Cir. 1999).

1. Doran

-40-
 In DeShaney, the Supreme Court held that state officials could not be liable

for failing to protect citizens from private violence. See Deshaney, 489 U.S. at

197. The Court was careful to note, however, that the state had played no part in

creating the danger or leaving the plaintiff more vulnerable to the danger. See id.

at 200-01. The clear implication of the Court’s language, which was written in

1989, was that a state could be liable when it affirmatively acts to create, or

increases a plaintiffs vulnerability to, danger from private violence. Any doubts

as to the possible inference to be drawn in this circuit from the Court’s language

in DeShaney were dispelled by the Medina case. In Medina, decided in 1992, this

court contrasted the social workers in DeShaney with police officers who

recklessly chased a suspect, noting that the police officers “affirmatively and

directly changed the status quo . . . by pursuing an allegedly unconstitutional

chase. DeShaney is therefore inapplicable.” Medina, 960 F.2d at 1497 n.5.

Other circuit courts also recognized the danger creation theory before Defendants’

conduct in question began. See Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir.

1993) (explaining that plaintiffs “may state claims for civil rights violations if

they allege state action that creates, or substantially contributes to the creation of,

a danger or renders citizens more vulnerable to a danger tha[n] they otherwise

would have been”); Dwares, 985 F.2d at 99 (“[A]n allegation that the officers in

some way had assisted in creating or increasing the danger to the victim would

-41-
indeed implicate [the victim’s due process rights].”); Gregory v. City of Rogers,

974 F.2d 1006, 1010 (8th Cir. 1992) (en banc) (“[T]he Due Process Clause

imposes a duty on state actors to protect or care for citizens . . . when the state

affirmatively places a particular individual in a position of danger the individual

would not otherwise have faced.”); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.

1992) (“The ‘danger creation’ basis for a claim . . . involves affirmative conduct

on the part of the state in placing the plaintiff in danger.”); McComb v.

Wambaugh, 934 F.2d 474, 483 (3rd Cir. 1991) (holding that DeShaney prevented

recovery because local social workers had not created the danger of private

abuse); Freeman, 911 F.2d at 55 (“DeShaney . . . establishes that the increased

danger created in a custodial setting is sufficient to trigger the [Due Process

Clause].”). Based on Deshaney, Medina, and the ample case law from other

circuits, this court concludes that a reasonable state official would have known in

1993 and 1994 that reckless, conscience shocking conduct that altered the status

quo and placed a child at substantial risk of serious, immediate, and proximate

harm was unconstitutional.

Our conclusion is supported by Armijo. In Armijo this court determined

that “danger creation jurisprudence was clearly established as a matter of law” by

late 1994. Armijo, 159 F.3d at 1262. The events prompting this lawsuit began in

late April 1993 and continued until May 1994. As the district court correctly

-42-
noted, the law of danger creation was not so radically altered between the time

Defendants in this case acted and the time the defendants in the Armijo case acted

as to justify a different legal conclusion. 8

Our conclusion that danger creation law was clearly established at the time

of the events underlying this suit is not undermined by the Seventh Circuit’s dicta

in K.H. v. Morgan suggesting that placing a child with a family member might

insulate the state from all constitutional liability. See 914 F.2d at 852-53. Never

before has this court indicated that state employees would be justified in relying

on the isolated dicta of another circuit court to create an exception to a general

theory of liability established by Tenth Circuit and Supreme Court cases, and it

will not do so now. Such a rule would make state employees immune from

constitutional obligations determined to exist by this court or the Supreme Court,

based on the non-binding musings of other circuit courts.

8
Our conclusion is not altered to the extent that some of our pre-1995 cases
can be interpreted to not require “conscience-shocking” behavior. Compare
Medina, 960 F.2d at 1496, with Uhlrig, 64 F.3d at 574. For one, the “shock the
conscience” standard has been traced by this court to the 1992 Supreme Court
case of Collins v. City of Harker Heights Texas, 503 U.S. 115, 126 (1992). See
Uhlrig, 64 F.3d at 573. The law is clearly established when there is a Supreme
Court case on point. See Medina, 960 F.2d at 1498. In addition, the shock the
conscience requirement is an additional hurdle for plaintiffs attempting to prove
liability. Thus, even if Defendants were not aware of the requirement, the
constitutional standard they would then have operated on would have been higher.
They cannot now claim, therefore, that they were unaware their conduct was
illegal because the shock the conscience requirement was not clearly established.

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 2. Medina

As the above discussion demonstrates, the danger creation cause of action

was clearly established at the time of the events underlying this suit. The

circumstances surrounding Doran’s involvement with the children resulted in a

relatively straight-forward application of the doctrine. The particular theory of

danger creation on which Plaintiffs have stated a claim against Medina, however,

is substantially less established in the case law. There are no Tenth Circuit cases

in which a government official, by her statements discouraging citizens from

seeking protection from government officials for harm inflicted by other private

citizens, is held to have created danger of private abuse. The closest support for

this particularly application of the danger creation theory comes from two cases

decided by other circuits. See Dwares, 985 F.2d at 94 (decided by the Second

Circuit in 1993); Freeman, 911 F.2d at 52 (decided by the Eighth Circuit in

1990). These two cases, however, involve circumstances which are not

sufficiently analogous to those surrounding Medina’s involvement in this case to

constitute clearly established law. In Dwares, the police officers directly told the

citizens committing the violence that they would not interfere with the citizens’

assault on other private citizens; Medina made no such statement to Vargas or his

fiancee. See Dwares, 985 F.2d at 97. In Freeman, the police chief directed

officers not to respond to a citizen’s complaint; Medina made no such statement

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to her co-workers or to any other government entity which might have responded

to Juarez’s requests for help. See Freeman, 911 F.2d at 53-54.

Plaintiffs can meet their burden to show the law was clearly established by

relying on cases from other circuits, but only if “the clearly established weight of

authority from other courts . . . have found the law to be as the plaintiff

maintains.” Medina, 960 F.2d at 1498. This standard has not been met in this

case. A reasonable official in Medina’s position would not have understood that

her conduct created a claim under the danger creation theory. Thus, Medina is

entitled to qualified immunity.

3. Gonzales

This court has long held that a supervisor may be individually liable when

there is “essentially a complete failure to train, or training that is so reckless or

grossly negligent that future misconduct is almost inevitable.” Meade v. Grubbs,

841 F.2d 1512, 1528 (10th Cir. 1988). While Gonzales’ alleged failure to train

resulted in injury to Plaintiffs by a private actor, it was also clearly established in

1993 and 1994, as the discussion supra demonstrates, that state actors can be

liable for private violence when they create the danger or increase the plaintiff’s

vulnerability to danger.

IV. CONCLUSION

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 For the reasons stated above, this court AFFIRMS the district court’s

denial of Doran’s and Gonzales’ motions for summary judgment, and

REVERSES the district court’s denial of Medina’s and Sentell’s motion for

summary judgment.

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