Madhuri Patel v. Kent School District ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MADHURI PATEL, individually and 
on behalf of A.H., a
developmentally disabled minor,
Plaintiff-Appellant,
v.
KENT SCHOOL DISTRICT, a No. 10-35430
Washington municipal corporation;
FRANCINE WILHELM; KENT YOUTH  D.C. No.
2:09-cv-01223-JCC
AND FAMILY SERVICES, a
OPINION
Washington corporation and
healthcare provider; MARNEE
CRAWFORD, a healthcare provider;
DENNIS BALLINGER, a healthcare
provider,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
March 10, 2011—Seattle, Washington
Filed July 11, 2011
Before: Raymond C. Fisher, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
9639
9642 PATEL v. KENT SCHOOL DISTRICT
COUNSEL
David P. Moody, Marty D. McLean, Shayne C. Stevenson
(argued), Hagens Berman Sobol Shapiro LLP, Seattle, Wash-
ington, Lafcadio H. Darling, Mikkelborg, Broz, Wells &
PATEL v. KENT SCHOOL DISTRICT 9643
Fryer PLLC, Seattle, Washington, for plaintiff-appellant
Patel.
Mark S. Northcraft, Andrew T. Biggs, Sam B. Gorden
(argued), Northcraft, Bigby & Biggs, PC, Seattle, Washing-
ton, for defendant-appellee Wilhelm.
OPINION
TALLMAN, Circuit Judge:
A.H., a developmentally disabled high-school student, had
several sexual encounters with another developmentally dis-
abled student in a school bathroom. Her mother alleges these
encounters were the result of the school’s failure to properly
supervise A.H. We must decide whether the mother, individu-
ally and on behalf of A.H., has a cognizable Fourteenth
Amendment due process claim against A.H.’s special-
education teacher. The district court found she did not and
granted summary judgment to the teacher. We agree and
affirm.
The Fourteenth Amendment’s Due Process Clause gener-
ally does not require government actors to protect individuals
from third parties. As we hold below, neither of two excep-
tions to this general rule—the “special relationship” exception
or the “state-created danger” exception—applies here. If A.H.
and her mother have viable claims, those claims arise under
state tort law, not the federal Constitution.
I
A
A.H. is a former student at Kentridge High School (KHS)
in the Kent School District (Kent, Washington). Her mother
9644 PATEL v. KENT SCHOOL DISTRICT
is plaintiff-appellant Madhuri Patel. At age three, A.H. was
diagnosed with developmental disabilities, including cogni-
tive and intellectual delays. She is classified as mildly men-
tally retarded. A.H. spent her entire school career in special
education within the Kent School District.
During the relevant time, A.H.’s disabilities affected her
day-to-day life in various ways.1 She was sometimes unable
to complete basic tasks like holding her eating utensils cor-
rectly, blowing her nose, and zipping her clothes. Socially,
A.H. had difficulty maintaining an appropriate physical dis-
tance from other people, refraining from talking about per-
sonal or embarrassing things, and conveying an age-
appropriate understanding of etiquette. Patel alleged that her
daughter frequently was “not aware of the potential danger of
situations and [did] not necessarily use caution when encoun-
tering risky social situations.” Patel also worried that A.H.
would often attempt to fit in with her peers by allowing her-
self to be easily manipulated or mistreated.
In April 2006, A.H.’s freshman year at KHS, Patel discov-
ered a series of troubling emails between A.H. and three other
students. Patel learned the students were coercing A.H. to
steal money from Patel’s purse. The emails also contained
several graphic sexual references, particularly between A.H.
and a boy named Eric. Patel gave the emails to school admin-
istrators, who concluded after investigation that Eric “was
extorting money from [A.H.] but no sexual encounters had
occurred at school.” The three students were suspended, and
Eric never returned to KHS.
A month after Patel discovered the emails, KHS established
an Individualized Education Plan (IEP) for A.H. A.H. was put
in a self-contained classroom taught by defendant-appellee
1
Because we are reviewing an order granting summary judgment, we
accept as true the facts Patel alleges. See Tatum v. City & Cnty. of S.F.,
441 F.3d 1090, 1092 n.1 (9th Cir. 2006).
PATEL v. KENT SCHOOL DISTRICT 9645
Francine Wilhelm, a special-education teacher. The school
invoked a “no contact” order to prevent any further physical
contact between A.H. and other students. School staff were
required to escort A.H. to Wilhelm’s classroom when she
arrived in the morning, to any classes outside Wilhelm’s
classroom, and to the bus at the end of the day. At a staff
meeting discussing the IEP, Wilhelm said she was “closely
monitoring [A.H.] with regards to the young men in the
class.” Wilhelm also said she was “[k]eeping an eye out for
social concerns for [A.H.]” The IEP continued for the remain-
der of A.H.’s freshman year.
When A.H. began her sophomore year in fall 2006, KHS
did not immediately resume the IEP. In an email to school
administrators, Patel said she was “quite disappointed that
[the] school would drop [the] ball on [the] previous arrange-
ment of [A.H.]’s safety plan without including me or my per-
mission.” She asked the school to resume the IEP.
In response to Patel’s concerns, KHS held a meeting in
September 2006. Wilhelm attended this meeting. A represen-
tative from Kent Youth and Family Services informed school
officials that A.H.’s safety might be compromised if she was
left “in any unsupervised times.” This included “lunch, pass-
ing times, and especially bathroom time.” After the meeting,
the school agreed to resume the IEP and drafted a written
agreement to that effect. According to Patel’s declaration, had
the school not done so, she would have removed her daughter
from KHS.
The incidents leading directly to this lawsuit occurred the
following semester, spring 2007. Although KHS’s principal,
Mike Albrecht, believed A.H. was under “complete adult
supervision throughout the entire day,” that semester Wilhelm
had been allowing A.H. (then age sixteen) to go on her own
to a bathroom immediately adjacent to Wilhelm’s classroom.
At least five times during these unsupervised trips to the bath-
room, A.H. had sex with a boy named Matt, another develop-
9646 PATEL v. KENT SCHOOL DISTRICT
mentally disabled student in Wilhelm’s class. A counselor
determined the sex might be “consensual” even though both
students were developmentally disabled.
Despite her recognition that the IEP called for constant
supervision, Wilhelm believed allowing A.H. to use the bath-
room on her own as a sophomore was an important step in
fostering her development:
Our primary charge is to prepare our [special-
education] students for transition when they age out
or graduate. [A.H.] will be a junior next year, and
allowing her to use the restroom . . . would be con-
sidered a step toward full transition. . . . [and] toward
more independence.
According to Wilhelm, because the bathroom was next-door
to her classroom, she could hear students inside talking and
the toilets flushing. Wilhelm also claimed she would watch
the clock to make sure A.H. did not take too long. Under
these circumstances, Wilhelm considered it appropriate to
allow A.H. to make quick trips to the bathroom without an
escort.
Wilhelm did not know A.H. was having sex with Matt in
the bathroom, but she was aware the two potentially had some
type of relationship. On Matt’s first day at KHS in March
2007, another teacher had emailed Wilhelm to tell her that
A.H. was very interested in Matt, talking and laughing with
him during class. Wilhelm asked the other teacher to “docu-
ment the behavior and send it to [her].” Wilhelm also relayed
this information to Patel via email. Then, about two months
later, a vice principal told Wilhelm that she had seen the two
students hugging in the hallway. Wilhelm spoke separately
with each student about the incident.
A few days later, Wilhelm saw Matt leave her classroom
just a few seconds after A.H. had gone to the bathroom. Wil-
PATEL v. KENT SCHOOL DISTRICT 9647
helm “raced out of the room,” called to A.H. from outside the
bathroom, and escorted her back to class. Wilhelm said A.H.
was “very angry” with Wilhelm for “interfering with her.” At
the school’s direction, Wilhelm again emailed Patel to explain
the incident. A school official later thanked Wilhelm privately
for her “vigilant” efforts.
As it turned out, this second email from Wilhelm to Patel
may have been the catalyst in revealing A.H.’s sexual rela-
tionship with Matt. After receiving the email, Patel asked her
daughter whether she was having a relationship with another
student. A.H. admitted she and Matt had sex in the bathroom
at least twice. Having heard this, Patel sent two emails to
KHS, one to Wilhelm and one to Principal Albrecht. These
emails disclosed A.H.’s sexual relationship with Matt and
expressed Patel’s anger about the situation. In the email to
Wilhelm, Patel wrote, “FRANCINE I AM IN SHOCK, [A.H.]
WILL NOT COME BACK TO SCHOOL TILL THESE
ISSUES [ARE] WORKED OUT.” Likewise, in the email to
Principal Albrecht, Patel wrote that the school had “not pro-
vided [the] supervision [A.H.] needs.”
Patel’s email to Principal Albrecht also revealed for the
first time that, contrary to the results of the school’s previous
investigation, A.H. and Eric had sex in a different school
bathroom during her freshman year. Patel’s email ambigu-
ously claimed school officials knew this all along: “She had
sex with [Eric] on the bathroom floor in [the] new [building]
last year . . . school knows about this as they did their investi-
gation last year.”
But as the district court correctly noted, there was no evi-
dence school officials knew that A.H. had sex at school her
freshman year until Patel told them so in these spring 2007
emails. Rather, the school’s prior investigation had concluded
that Eric exploited A.H. for money, but no sex occurred on
campus. In an internal email, a school official said, “[We]
have met with [Patel] numerous times,” she “would not tell us
9648 PATEL v. KENT SCHOOL DISTRICT
what happened last year,” and “we had no knowledge of
[A.H.] having sex.” Similarly, Wilhelm herself stated that she
and other teachers knew A.H. had done something inappropri-
ate in the bathrooms her freshman year, but they did not know
exactly what had happened.
After sending the two emails, Patel removed A.H. from
KHS. She reported the sexual encounters to the King County
Sheriff’s Department. The sheriff’s office took a statement
from Matt, who admitted he “had sexual relations with [A.H.]
at least five times.” This lawsuit followed.
B
Patel filed suit in Washington Superior Court, individually
and on behalf of A.H. She brought a variety of state-law
claims against the school district and Wilhelm, including neg-
ligence and failure to protect. Patel also brought a federal civil
rights claim under 42 U.S.C. § 1983. The § 1983 claim, which
underlies this appeal, was against Wilhelm only. Without fur-
ther elaboration, Patel’s complaint alleged Wilhelm had vio-
lated A.H.’s Fourteenth Amendment rights. Defendants
removed the case to the United States District Court for the
Western District of Washington on the basis of this federal
claim.
In the district court, Wilhelm moved for partial summary
judgment on the § 1983 claim. She argued Patel’s complaint
did not explain how Wilhelm had deprived A.H. of her Four-
teenth Amendment rights. In response, Patel countered that
Wilhelm had violated A.H.’s due process right to bodily
integrity by failing to supervise her trips to the next-door
bathroom, causing her to be “repeatedly raped.”
The district court granted Wilhelm’s motion and dismissed
the § 1983 claim, finding as a matter of law that Wilhelm had
not deprived A.H. of any federally protected right. The court
then declined to exercise supplemental jurisdiction over
PATEL v. KENT SCHOOL DISTRICT 9649
Patel’s remaining state-law claims. See United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966). The court dis-
missed the state claims without prejudice, leaving them for
resolution by the King County Superior Court.
Patel now appeals. We have jurisdiction under 28 U.S.C.
§ 1291.
II
We review de novo a district court’s grant of summary
judgment. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,
896 (9th Cir. 2008). Viewing the evidence in the light most
favorable to the non-moving party, we must determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant sub-
stantive law. Id.III
The district court correctly granted partial summary judg-
ment to Wilhelm. Although Patel may still have viable state-
law claims against the defendants, her § 1983 claim against
Wilhelm fails as a matter of law. Cf. DeShaney v. Winnebago
Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 202 (1989) (“[T]he
Fourteenth Amendment . . . does not transform every tort
committed by a state actor into a constitutional violation.”).
[1] To succeed on a § 1983 claim, a plaintiff must show
that (1) the conduct complained of was committed by a person
acting under color of state law; and (2) the conduct deprived
the plaintiff of a federal constitutional or statutory right.
Tatum, 441 F.3d at 1094. Here, the parties do not dispute that
Wilhelm was acting under color of state law. The sole issue
is whether Wilhelm deprived A.H. of any federally protected
right.
[2] “[T]he general rule is that [a] state is not liable for its
omissions.” Munger v. City of Glasgow Police Dep’t, 227
9650 PATEL v. KENT SCHOOL DISTRICT
F.3d 1082, 1086 (9th Cir. 2000). In that vein, the Fourteenth
Amendment’s Due Process Clause generally does not confer
any affirmative right to governmental aid, even where such
aid may be necessary to secure life, liberty, or property inter-
ests. DeShaney, 489 U.S. at 196. As a corollary, the Four-
teenth Amendment typically “does not impose a duty on [the
state] to protect individuals from third parties.” Morgan v.
Gonzales, 495 F.3d 1084, 1093 (9th Cir. 2007).
[3] There are two exceptions to this rule: (1) when a “spe-
cial relationship” exists between the plaintiff and the state (the
special-relationship exception), Deshaney, 489 U.S. at 198-
202; and (2) when the state affirmatively places the plaintiff
in danger by acting with “deliberate indifference” to a
“known or obvious danger” (the state-created danger excep-
tion), L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). If
either exception applies, a state’s omission or failure to pro-
tect may give rise to a § 1983 claim.
[4] Because Patel’s § 1983 claim is based on an omission
by Wilhelm—her alleged failure to properly supervise A.H.—
Patel can establish a due process violation only if one of these
two exceptions applies. To survive summary judgment, then,
Patel must raise a material fact question on either exception.
She has not done so.
A
[5] We begin with the special-relationship exception. The
Supreme Court formally established this exception in
DeShaney, 489 U.S. at 198-202. The exception applies when
a state “takes a person into its custody and holds him there
against his will.” Id. at 199-200. The types of custody trigger-
ing the exception are “incarceration, institutionalization, or
other similar restraint of personal liberty.” Id. at 200. When
a person is placed in these types of custody, we allow due
process claims against the state for a fairly simple reason: a
state cannot restrain a person’s liberty without also assuming
PATEL v. KENT SCHOOL DISTRICT 9651
some responsibility for the person’s safety and well-being. Id.
at 199-200.
[6] Under this exception, the state’s constitutional duty
arises “not from the State’s knowledge of the individual’s pre-
dicament or from its expressions of intent to help him, but
from the limitation which [the State] has imposed on his free-
dom.” Id. at 200. In other words, the person’s substantive due
process rights are triggered when the state restrains his liberty,
not when he suffers harm caused by the actions of third par-
ties. Id. at 195, 200.
[7] The special-relationship exception does not apply when
a state fails to protect a person who is not in custody. See id.
at 195-202. In DeShaney, for instance, a four-year-old boy
was brutally and repeatedly beaten by his father. Id. at 191-
93. The abuse was reported to the county’s department of
social services. Id. at 192. While monitoring the situation over
the following months, social services saw voluminous evi-
dence suggesting continued abuse. During her monthly in-
home visits, the boy’s caseworker observed several suspicious
injuries on his body. Id. at 192-93. On her final two visits, the
caseworker was told the boy could not see her because he was
“too ill.” Id. Social services twice received calls from the hos-
pital saying the boy had been admitted for injuries doctors
believed were caused by abuse. Id. Through all of this, social
services never took any action. Id.Soon after, the boy was beaten to near-death by his father
and suffered severe brain damage. Id. The Supreme Court
rejected the boy’s § 1983 due process claim, holding the
special-relationship exception did not apply because the boy
was in the custody of his father, not the state. Id. at 201. Even
though the state had extensive information strongly suggest-
ing abuse, the boy’s due process rights were not triggered
because he was not in state custody. Id. at 200-02.
[8] Here, Patel argues A.H. was in state custody while she
was at school. Patel emphasizes that Washington requires
9652 PATEL v. KENT SCHOOL DISTRICT
mandatory school attendance, Wash. Rev. Code
§ 28A.225.010(1), and that KHS had a duty to protect A.H.
during school hours under the state’s in loco parentis doc-
trine. This state tort doctrine requires schools to “anticipate
dangers which may reasonably be anticipated” and then “take
precautions to protect the pupils” from those dangers. McLeod
v. Grant Cnty. Sch. Dist. No. 128, 255 P.2d 360, 362 (Wash.
1953). Patel argues this state-law duty created a special rela-
tionship under DeShaney, thus permitting her federal § 1983
claim.
[9] Although we have not yet applied DeShaney to the
context of compulsory school attendance, every one of our
sister circuits to consider the issue has rejected Patel’s argu-
ment. At least seven circuits have held that compulsory school
attendance alone is insufficient to invoke the special-
relationship exception. E.g., Hasenfus v. LaJeunesse, 175
F.3d 68, 71 (1st Cir. 1999); Doe v. Hillsboro Indep. Sch.
Dist., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc); Sargi v.
Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995); Gra-
ham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 993-95 (10th
Cir. 1994); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729,
732 (8th Cir. 1993); D.R. v. Middle Bucks Area Vocational
Tech. Sch., 972 F.2d 1364, 1368-73 (3d Cir. 1992) (en banc);
J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th
Cir. 1990). Our sister circuits have reasoned that, unlike incar-
ceration or institutionalization, compulsory school attendance
does not restrict a student’s liberty such that neither the stu-
dent nor the parents can attend to the student’s basic needs.
E.g., Sargi, 70 F.3d at 911 (citing cases). Even when school
attendance is mandatory, the parents—not the state—remain
the student’s primary caretakers. E.g., id.[10] Going a step further, most of these circuits have
expressly held that combining in loco parentis duties with
compulsory school attendance still does not create a “special
relationship.” E.g., Hasenfus, 175 F.3d at 71; Doe v. Clai-
borne Cnty., 103 F.3d 495, 510 (6th Cir. 1996); Dorothy J.,
PATEL v. KENT SCHOOL DISTRICT 9653
7 F.3d at 732; Middle Bucks, 972 F.2d at 1368-73. These
decisions have emphasized that a state-law obligation does
not necessarily create a duty of care under the Fourteenth
Amendment. E.g., Claiborne Cnty., 103 F.3d at 510; see also
DeShaney, 489 U.S. at 202. Applying this bedrock principle,
our sister circuits uniformly hold that requiring school atten-
dance does not sufficiently restrict a student’s liberty under
DeShaney to transform the school’s in loco parentis duties
into a constitutional obligation. E.g., Claiborne Cnty., 103
F.3d at 510 (citing cases).
We find particularly instructive the Third Circuit’s analysis
of this issue in Middle Bucks, as it involved facts somewhat
similar to ours. See 972 F.2d at 1366-67. In that case, one
plaintiff was a female student with communicative disabili-
ties. Id. at 1366 n.5. She claimed multiple male students sexu-
ally molested her in a unisex school bathroom and a
darkroom. Id. at 1366. She brought a § 1983 claim against the
school, alleging several school defendants knew or should
have known about these incidents but did nothing to inter-
vene. Id.
Affirming dismissal of the § 1983 claim, the Third Circuit
refused to apply the special-relationship exception. Id. at
1373. The court emphasized that, despite compulsory school
attendance and in loco parentis status, the student remained
in the custody of her parents, not the school. Id. at 1370-72.
She went home every night, and her parents had the authority
at all times to put her in a different school or educate her at
home. Id. Thus, the school’s authority did not “create the type
of physical custody necessary to bring it within [DeShaney].”
Id. at 1372.
[11] While we certainly have sympathy for Patel’s position
as a concerned and caring parent, we decline to depart from
this persuasive authority. Compulsory school attendance and
in loco parentis status do not create “custody” under the strict
standard of DeShaney. Like the schoolchildren in the cases
9654 PATEL v. KENT SCHOOL DISTRICT
cited above, A.H.’s freedom was not restrained by KHS in a
manner akin to “incarceration” or “institutionalization.” See
DeShaney, 489 U.S. at 200. A.H. did not live at school; she
lived at home with her mother. Although she was statutorily
required to attend school somewhere, her mother could have
removed her from KHS at any time, and in fact did so. See
Wash. Rev. Code § 28A.225.010(1) (granting parents broad
discretion over where and how their children are educated).
These facts preclude a custodial relationship.
[12] To the extent Patel argues we should distinguish this
case because the IEP obligated KHS to guard against A.H.’s
special vulnerabilities, DeShaney suggests otherwise. In the
case of a minor child, custody does not exist until the state has
so restrained the child’s liberty that the parents cannot care for
the child’s basic needs. See DeShaney, 489 U.S. at 199-201.
A tailored educational program for a disabled student does not
meet this threshold. Middle Bucks, 972 F.2d at 1371-72.
KHS’s agreement to provide enhanced supervision did not
prevent Patel from caring for A.H.’s basic needs. Patel always
remained A.H.’s primary caretaker. Even though Patel’s care
was surely undermined by the school’s alleged failure to fol-
low the IEP, that is not our inquiry here. Under DeShaney, we
are concerned only with whether KHS so restrained A.H.’s
liberty that it rendered Patel “unable to care for [her].” See
489 U.S. at 200 (emphasis added). It did not. Thus, while the
IEP may significantly strengthen Patel’s state-law negligence
claims, it does not give rise to a constitutional duty. Cf. id. at
202.
B
[13] We now consider the state-created danger exception.
We first recognized this exception in Wood v. Ostrander, 879
F.2d 583 (9th Cir. 1989). Although our case law on the excep-
tion is somewhat scattershot, two clear requirements have
emerged. See Kennedy v. City of Ridgefield, 439 F.3d 1055,
1062 (9th Cir. 2006). First, the exception applies only where
PATEL v. KENT SCHOOL DISTRICT 9655
there is “affirmative conduct on the part of the state in placing
the plaintiff in danger.” Munger, 227 F.3d at 1086 (internal
quotation omitted). Second, the exception applies only where
the state acts with “deliberate indifference” to a “known or
obvious danger.” Grubbs, 92 F.3d at 900.
We do not reach the first requirement here because Patel
fails on the second. Even viewing the facts in the light most
favorable to Patel, the record does not support her contention
that Wilhelm acted with deliberate indifference in neglecting
to properly supervise A.H.
[14] Deliberate indifference is “a stringent standard of
fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Bryan Cnty. v.
Brown, 520 U.S. 397, 410 (1997). We defined the contours of
deliberate indifference in Grubbs, 92 F.3d at 898-900. Under
Grubbs, the standard we apply is even higher than gross
negligence—deliberate indifference requires a culpable men-
tal state. Id. The state actor must “recognize[ ] [an] unreason-
able risk and actually intend[ ] to expose the plaintiff to such
risks without regard to the consequences to the plaintiff.” Id.
at 899 (internal quotation omitted). In other words, the defen-
dant “knows that something is going to happen but ignores the
risk and exposes [the plaintiff] to it.” Id. at 900. The
deliberate-indifference inquiry should go to the jury if any
rational factfinder could find this requisite mental state. See
Wood, 879 F.2d at 588 & n.4.
In a few § 1983 opinions post-Grubbs, we have allowed
deliberate-indifference theories to proceed to trial. See, e.g.,
Kennedy, 439 F.3d at 1064-65; Munger, 227 F.3d at 1087-88;
Penilla v. City of Huntington Park, 115 F.3d 707, 711 (9th
Cir. 1997). Patel argues these cases control the outcome here
and require us to reverse summary judgment. We disagree.
Deliberate-indifference cases are by their nature highly fact-
specific, and the cases cited by Patel are distinguishable.
9656 PATEL v. KENT SCHOOL DISTRICT
In Penilla, decedent Penilla became seriously ill while sit-
ting on his front porch. 115 F.3d at 708. The first responders
to a 911 call were two police officers. Id. The officers exam-
ined Penilla, found him to be in grave need of medical care,
but then inexplicably canceled the request for paramedics. Id.They moved Penilla inside his house, locked the door, and
left. Id. Penilla was found dead on his floor the next day, the
result of respiratory failure. Id. Emphasizing the officers’ dis-
regard for Penilla’s immediate and “serious” medical need,
we saw a material fact question on deliberate indifference and
allowed a § 1983 claim to proceed to trial. See id. at 710-11.
In Kennedy, the Kennedy family reported to police that
their nine-year-old daughter had been abused by their neigh-
bors’ mentally unstable son. 439 F.3d at 1057. The Kennedys
told the responding officer in detail about the boy’s disturbing
history of aggravated violence, including lighting a cat on fire
and breaking into his girlfriend’s house to beat her with a
baseball bat. Id. at 1057-58. Aware the Kennedys feared a
violent response, the officer promised to warn them before he
told the neighbors about the allegations. Id. at 1058, 1063.
Despite his promise, the officer later spoke with the neigh-
bors without first warning the Kennedys. Id. at 1058. When
he told the Kennedy mother about his conversation with the
neighbors (fifteen minutes later), she became upset. Id. The
officer promised additional patrols would be provided that
night to protect the Kennedys from possible retaliation by the
boy. Id. But the patrols were not provided, and that same
night the boy broke into the Kennedy home and shot both par-
ents. Id. We held this evidence created a material fact ques-
tion on whether the officer acted with deliberate indifference.
Id. at 1064-65.
Our facts here are critically different. Unlike the police
officers in Penilla, Wilhelm did not act in a manner contrary
to assisting someone in a known, immediate danger. The offi-
cers knew Penilla was in grave condition and required prompt
PATEL v. KENT SCHOOL DISTRICT 9657
medical attention, yet for some reason did the opposite of
what a reasonable person would expect them to do. In fact,
the officers made the situation decidedly worse by calling off
medical assistance already en route. Penilla, 115 F.3d at 708.
Wilhelm did nothing similar here. This would be a different
case if Wilhelm had known A.H. was about to enter the bath-
room with Matt or otherwise be alone with him, yet then
stood idly by. To the contrary, Wilhelm had monitored the
developing situation between the two students, and once even
rushed out of her classroom to prevent a possible incident
between them.
As for Kennedy, while our case is similar in that Wilhelm
made a promise she allegedly failed to keep—supervising
A.H. at all times—it is also crucially different because Wil-
helm did not know about any immediate risk. In Kennedy, the
police officer knew the neighbors’ son had a history of aggra-
vated violence, including previously breaking into a house to
attack someone. He also knew the Kennedys feared swift
retaliation once the boy learned of the allegations, which is
exactly why the officer promised to provide additional patrols
that night. Here, on the other hand, Wilhelm knew only that
A.H. required extensive supervision and had been involved in
past bathroom incidents, the details of which were unknown
to Wilhelm. She did not know there was any immediate dan-
ger in allowing A.H. to briefly use the next-door bathroom
alone.
[15] Contrary to Patel’s argument that our case law pre-
cludes summary judgment here, we think the straightforward
rules established in Grubbs dictate just the opposite. As noted
above, Grubbs makes unmistakably clear that mere
negligence—or even gross negligence—is not enough for
deliberate indifference. See 92 F.3d at 898-900. The standard
is markedly higher, and we see no evidence even hinting that
Wilhelm “intend[ed] to expose” A.H. to a risk or otherwise
knew “that something [was] going to happen but ignore[d] the
risk.” Id. at 899-900.
9658 PATEL v. KENT SCHOOL DISTRICT
A far cry from “ignor[ing]” any risk, Wilhelm was fairly
active in protecting A.H. She regularly communicated about
A.H. with school officials, other teachers, and Patel herself.
She asked another teacher to help her monitor the possible
developing relationship between A.H. and Matt. She spoke
separately with the two students about their hugging in the
hallway. She rushed out of her classroom to prevent an inci-
dent between them as soon as she realized they were both
gone at the same time. Further, well before this litigation
began, Wilhelm gave her colleagues a compelling reason for
allowing A.H. to use the bathroom by herself: it was a “step
toward [A.H.’s] full transition” to graduating from high
school. Taken together, this evidence does not suggest that
Wilhelm harbored the requisite mental state of intentionally or
knowingly subjecting A.H. to a known or obvious danger. See
id.[16] At worst, Wilhelm committed a lapse in judgment by
allowing A.H. to quickly use the next-door bathroom on her
own. Whether these circumstances rose to the level of negli-
gence is a question that will be resolved by a jury in Washing-
ton state court. But on this record, no rational factfinder could
conclude that Wilhelm acted with deliberate indifference to
A.H.’s safety and well-being. Anything less “is not enough”
to constitutionalize a state tort. Id. at 900.
IV
[17] The district court properly dismissed Patel’s § 1983
civil rights claim at summary judgment. The special-
relationship exception and the state-created danger exception
do not apply in this case. Whatever liability Wilhelm may
face, that liability must come from state tort law, not the Four-
teenth Amendment. Cf. Alton Cmty., 909 F.2d at 272 (holding
that protection for schoolchildren “is best left to laws outside
the Constitution”). Patel and her daughter will have their day
in court, but it will come in the King County Superior Court,
not here.
AFFIRMED.