Barbara Davis v. Wsdshs ( 2020 )

FILED
NOT FOR PUBLICATION
FEB 26 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA DAVIS, as Personal No. 18-36044
Representative of the Estate of G.B.,
deceased, D.C. No. 2:18-cv-00194-SMJ
Plaintiff-Appellant,
MEMORANDUM*
v.
WASHINGTON STATE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES;
et al.,
Defendants-Appellees,
and
JANE DOE STOKES, and the marital
community comprised thereof; JANE DOE
KIRKLAND, and the marital community
comprised thereof,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted February 3, 2020
Seattle, Washington
Before: M. SMITH, N.R. SMITH, and BRESS, Circuit Judges.
Barbara Davis, personal representative of decedent G.B.’s estate, appeals the
district court’s grant of summary judgment for Jeremy Kirkland, a social worker
with the Washington State Department of Social Health Services (“WSDSHS”),
based on its determination that Kirkland was entitled to qualified immunity. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In determining whether a social worker is entitled to qualified immunity, we
must examine “(1) whether the facts, taken in the light most favorable to the party
asserting the injury, show that the social workers’ conduct violated a constitutional
right and (2) if so, whether the right was clearly established, such that a reasonable
official would understand that his conduct violated that right.” Cox v. Dep’t of Soc.
& Health Servs., 913 F.3d 831, 837 (9th Cir. 2019) (alterations adopted) (quoting
Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010)).
Under our precedents, “[w]here children are in state custody, the Fourteenth
Amendment’s substantive due process clause protects their liberty interest ‘in
social worker supervision and protection from harm inflicted by a third party.’” Id.(alteration adopted) (quoting Tamas, 630 F.3d at 842). We have held that this
2
liberty interest is violated when a social worker acts with deliberate indifference,
which requires a two-part showing: (1) “an objectively substantial risk of harm”
and (2) “‘that the officials were subjectively aware of facts from which an
inference could be drawn’ that such a risk existed and that ‘either the official
actually drew that inference or that a reasonable official would have been
compelled to draw that inference.’” Id. at 837–38 (quoting Tamas, 630 F.3d at
845). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391
F.3d 1051, 1061 (9th Cir. 2004).
Davis argues that, because Kirkland violated department policies requiring a
request of courtesy supervision and a home study from the Spokane office in
conjunction with G.B.’s placement in his paternal aunt’s home, Kirkland was
deliberately indifferent to G.B.’s protected liberty interests. However, “[w]hether
the [social worker] violated a state law or an internal departmental policy is not the
focus of our inquiry.” Case v. Kitsap Cty. Sheriff’s Dep’t, 249 F.3d 921, 929 (9th
Cir. 2001). Rather, the focus is on whether there is a violation of federal statutory
or constitutional rights. See id.Viewing the record in a light most favorable to Davis, there is insufficient
evidence to show that there was an objectively substantial risk that G.B. would be
physically harmed by his aunt. Kirkland began supervising G.B.’s assigned social
3
worker in August 2014, after G.B. was permanently placed in his aunt’s home.
When there were concerns over G.B’s social worker’s quality of work, Kirkland
promptly began the investigation leading to the social worker’s removal from
cases. Kirkland then assigned a new social worker, who requested courtesy
supervision and a home study. Thereafter, G.B. was visited at least monthly by a
social worker. No safety concerns for G.B. were ever reported by social workers.
The single report in December 2014 to WSDSHS suggesting that G.B.’s aunt
posed a risk of harm to G.B. was ultimately determined to be unfounded. Because
these facts known at the time do not rise to the level of an objectively substantial
risk of harm to G.B., the high standard of deliberate indifference is not met. Thus,
Kirkland is entitled to qualified immunity.1
AFFIRMED.2
1
Because we determine there was no objectively substantial risk of harm, we
need not decide WSDSHS’s contentions about the scope of the clearly established
right and the applicability of Ashcroft v. Iqbal, 556 U.S. 662 (2009).
2
WSDSHS’s motion for the court to take judicial notice of two records filed
by Davis in the companion case is denied.
4