Armijo Ex Rel. Chavez v. Wagon Mound Public Schools

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

OCT 28 1998

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

PHILADELFIO C. ARMIJO, a

deceased minor, by and through his

mother/father and next friends,

JUANITA D. CHAVEZ and

ATANACIO ARMIJO,

Plaintiffs-Appellees-Cross-

Appellants,

v.

WAGON MOUND PUBLIC

SCHOOLS; WAGON MOUND

PUBLIC SCHOOL BOARD, BOB

Nos. 97-2150, 97-2167

BACHEN, Chairman, J.D. SCHMIDT,

Vice-Chairman, DON SCHULTZ,

Secretary, ELDIE CRUZ and

HERMAN FERNANDEZ, Members;

TONY GARCIA, Superintendent;

MARY SCHUTZ, Principal; TOM

HERRERA, Counselor; and PAM C.

CLOUTHIER, Educational Aide; all of

the above individually and in his/her

official capacity,

Defendants-Appellants-Cross-

Appellees.

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-95-1519-M/LCS)

Kevin M. Brown, Brown & German, Albuquerque, New Mexico, for

appellants/cross-appellees.

Adam G. Kurtz (Joe M. Romero, Jr. with him on the briefs), Romero &

Associates, Albuquerque, New Mexico, for appellees/cross-appellants.

Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

After being suspended and driven home without parental notification, a

special education student at a public school committed suicide. His parents

brought a cause of action against the school district and various school officials

alleging violation of their deceased son’s civil rights. The district court denied

the defendants’ motion for summary judgment on the issue of qualified immunity.

Defendants now appeal. Plaintiffs cross-appeal the district court’s grant of

summary judgment against them on some of their claims. We affirm in part,

reverse in part, and remand.

BACKGROUND

In 1994, Philadelfio C. Armijo (“Armijo”) was a sixteen-year-old special

education student at Wagon Mound Public Schools (“WMPS”), in Wagon Mound,

New Mexico. 1 Armijo is represented in this action by Juanita D. Chavez and

1

For purposes of this appeal, we consider the facts in a light most

(continued...)

-2-

Atanacio Armijo (the “Plaintiffs”), his mother and father and next friends.

Armijo was classified as learning disabled, and had other psychological and

emotional problems, including impulsivity and depression. Armijo had been a

special education student at WMPS for seven years. WMPS charted Armijo’s

progress as a special education student through Individual Education Plans

(“IEP”) that school officials developed for him.

The October 6, 1994, IEP notes for Armijo stated that “Phil will see [a]

social worker for assistance with dealing with school and self-esteem.” Earlier in

the year, Armijo had told school aide Pam Clouthier (“Clouthier”), “maybe I’d be

better off dead.” In a discussion with Clouthier in 1994, Armijo stated “I’m just

going to shoot myself.” Both Clouthier and school counselor Tom Herrera

(“Herrera”) knew that Armijo had access to firearms.

On December 1, 1994, Principal Mary Schutz (“Schutz”) verbally

reprimanded Armijo for harassing an elementary student. While in the presence

of Schutz and Herrera, Armijo threatened physical harm to the teacher that

reported the incident, to the teacher’s son, and to the teacher’s car. Schutz

immediately suspended Armijo on an emergency basis. Schutz considered Armijo

to be at risk for committing violence. Schutz instructed Herrera to drive Armijo

1

(...continued)

favorable to Plaintiffs.

-3-

home, which he did. Schutz also contacted the police to inform them of the

suspension and instructed the police to detain Armijo if they saw him returning to

school. On the way to Armijo’s house, Herrera observed Armijo to be “very

angry.”

Schutz did not follow stated school disciplinary policy by sending Armijo

home. The WMPS policy allows for “[t]emporary suspensions of students who

are eligible for special education services . . . in accordance with the normal

procedures . . . provided that the student is returned to the same educational

placement after the temporary suspension.” However, the WMPS Parent/Student

Handbook provides, “If a student is placed on out-of-school suspension, but

his/her parents will not be home, that student will be placed instead on in-school

suspension without credit for work done.” 2 Schutz did not inform Armijo’s

parents about his emergency removal from the school. Schutz also did not

instruct Herrera to notify Armijo’s parents. Nor did Schutz tell Herrera to check

if Armijo’s parents were home or to bring him back to school if no one was home.

2

WMPS policy also allows: “Students whose presence poses a continuing

danger to persons or property or an ongoing threat of interfering with the

educational process may be immediately removed from school . . . .” Under the

policy, “‘ immediate removal’ means the removal of a student from school for one

school day or less under emergency conditions and without a prior hearing.”

However, taking the evidence in the light most favorable to Plaintiffs, the non-

moving party, we assume that the suspension violated school policy because

Armijo was sent home when neither parent was at home.

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Although Herrera knew that he should speak with Armijo’s parents about their

son’s suspension, Herrera did not attempt to contact them.

After arriving at Armijo’s house, Armijo got out of Herrera’s car and ran

around to the back of the house as Herrera drove away. Armijo’s parents returned

home later that day and found their son in their bedroom dead of a self-inflicted

gunshot wound to the chest from a rifle. In her hand-written statement to the

Wagon Mound Police made immediately after learning of Armijo’s death,

Clouthier noted that within the last months before his death “Phil [Armijo] was

constantly depressed and nervous and not really knowing who or what he was.”

Clouthier added that earlier that day, while discussing Armijo’s misbehavior and

his inability to understand why he was in trouble, “Phil then told me that maybe

he should just leave the school and go to Colorado. I replied, ‘mi hijo relax your

[sic] upset but everything will be okay.[’] He then said I don’t know Pam, maybe

I’d be better off dead.”

Plaintiffs filed a complaint against WMPS, the WMPS School Board,

WMPS Superintendent Tony Garcia, Schutz, Herrera, and Clouthier

(“Defendants”) under the Individual with Disabilities Education Act (“IDEA”), 20

U.S.C. § 1400 et seq., and under 42 U.S.C. § 1983. 3 Plaintiffs claimed that the

3

Plaintiffs also filed a claim under the New Mexico Tort Claims Act, N.M.

Stat. Ann. § 41-4-6 (1989). The district court dismissed that claim and Armijo

(continued...)

-5-

WMPS Defendants violated IDEA and that the violation caused Armijo’s death.

Plaintiffs also alleged that WMPS, the WMPS School Board, and WMPS

Superintendent Garcia (“WMPS Defendants”) improperly failed to train school

officials to handle situations involving potentially violent and suicidal students

such as Armijo, in violation of 42 U.S.C. § 1983. Finally, Plaintiffs brought a

cause of action under 42 U.S.C. § 1983 against Schutz, Herrera, and Clouthier

(the “Individual Defendants”), alleging that they violated Armijo’s substantive

due process rights.

In an April 15, 1997, Memorandum Opinion and Order (“Order”), the

district court granted the WMPS Defendants’ motion for summary judgment on

the IDEA claim and the § 1983 failure to train claim. The district court denied

the Individual Defendants’ motion for summary judgment based on qualified

immunity from the § 1983 substantive due process claim. The district court found

that Plaintiffs presented a triable issue regarding Defendants’ knowledge of the

danger of suicide and the reasonableness of sending Armijo home without

parental notification in light of that risk. Holding that “danger creation”

jurisprudence was clearly established well before Armijo committed suicide, the

district court found that Plaintiffs’ allegations stated a cause of action under the

3

(...continued)

does not appeal the district court’s ruling on the issue.

-6-

danger creation theory of liability. The district court also found that “the precise

measure of state restraint that engenders an individual’s right to claim a

corresponding affirmative duty” by the state to protect that individual from harm

is not defined. However, the district court went on to state that Plaintiffs

presented sufficient facts to create a genuine dispute as to whether the Defendants

had a “special relationship” with Armijo which gave rise to a corresponding duty

to protect him from injury.

In Case No. 97-2150, Defendants filed an interlocutory Notice of Appeal of

the district court’s denial of qualified immunity. Plaintiffs contest the appeal for

lack of jurisdiction. In the alternative, in Case No. 97-2167, Plaintiffs cross-

appeal the district court’s grant of summary judgment on the failure to train and

IDEA claims.

DISCUSSION

I. Jurisdiction

We determine whether a defendant may bring an interlocutory appeal of the

denial of summary judgment on the issue of qualified immunity under the

standard set forth in Johnson v. Jones, 515 U.S. 304 (1995), and Behrens v.

Pelletier, 516 U.S. 299 (1996). We recently stated that, under Johnson, “[o]rders

denying qualified immunity before trial are appealable to the extent they resolve

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abstract issues of law.” Clanton v. Cooper, 129 F.3d 1147, 1152 (10th Cir. 1997).

Thus:

a district court’s order denying a defendant’s motion for summary

judgment [is] an immediately appealable “collateral order” (i.e., a

“final decision”) . . . where (1) the defendant [is] a public official

asserting a defense of “qualified immunity” and (2) the issue

appealed concern[s] not which facts the parties might be able to

prove, but, rather, whether or not certain given facts show[ ]a

violation of “clearly established” law.

Johnson, 515 U.S. at 311 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).

However, denial of summary judgment is not reviewable as a collateral order “[t]o

the extent that the district court’s denial of the defendant’s motion for summary

judgment is predicated on ‘evidence sufficiency,’ i.e. which facts a party may, or

may not, be able to prove at trial.” Clanton, 129 F.3d at 1152 (quoting Johnson,

515 U.S. at 313). “Rather, ‘immunity appeals . . . [are] limited to cases

presenting neat abstract issues of law.’” Clanton, 129 F.3d at 1153 (quoting

Johnson, 515 U.S. at 317).

In Foote v. Spiegel, 118 F.3d 1416 (10th Cir. 1997), we stated:

A determination that the law allegedly violated by the defendant was

clearly established at the time of the challenged actions is an abstract

issue of law that is immediately appealable. A determination that

under either party’s version of the facts the defendant violated

clearly established law is also immediately appealable. However,

government officials cannot appeal pretrial denial of qualified

immunity to the extent the district court’s order decides nothing more

than whether the evidence could support a finding that particular

conduct occurred. An order denying qualified immunity on summary

judgment is not appealable if it merely determines the facts asserted

-8-

by the plaintiff are sufficiently supported by evidence in the record to

survive summary judgment.

Id. at 1422 (internal citations omitted); see also Wilson v. Meeks, 98 F.3d 1247,

1250-51 (10th Cir. 1996) (surveying Tenth Circuit cases interpreting Johnson);

Mick v. Brewer, 76 F.3d 1127, 1133 (10th Cir. 1996) (dismissing part of

defendants’ appeal after finding jurisdiction to review district court’s legal

determination of what constituted clearly established law, but finding no

jurisdiction to review district court’s ruling that genuine issues of material fact

precluded summary judgment).

The district court found “a genuine dispute of fact as to whether defendants

knew that Philadelfio was suicidal and thus able to care for himself when he was

suspended from school and driven to his home where he was left alone without

parental notification.” Plaintiffs argue that we do not have jurisdiction over the

appeal because the district court denied summary judgment after finding a dispute

of fact regarding whether the Individual Defendants knew that Armijo was

suicidal and thus would unreasonably be placed at risk of harm if he were

removed from school and left alone at home without parental notification.

Defendants argue that there is no material dispute of fact as to whether they knew

that Armijo was suicidal because Clouthier did not take Armijo’s suicidal

statements seriously, Clouthier now does not recall Armijo making any of the

statements she related in her affidavit to the police, Clouthier was not involved in

-9-

Armijo’s suspension decision, and Armijo did not make suicidal threats to either

Schutz or Herrera. Defendants also claim that their appeal involves the purely

abstract legal question of whether Armijo’s federal rights allegedly infringed were

“clearly established.”

We have jurisdiction to consider the appeal, but only over the legal issues

raised in the case. We do not have jurisdiction to review the district court’s

factual findings, including its finding that a genuine dispute of fact existed as to

the school’s knowledge of Armijo’s suicide risk and his ability to care for

himself. In considering the legal issues:

[We] review whether, under [plaintiff’s] version of the facts,

[defendant] violated clearly established law. In making this

determination, we must scrupulously avoid second-guessing the

district court’s determinations regarding whether [plaintiff] has

presented evidence sufficient to survive summary judgment. Rather,

we review only whether [defendant’s] conduct, as alleged by

[plaintiff], violated clearly established law.

Clanton, 129 F.3d at 1153 (internal citation omitted).

However, if the district court does not “identify the particular charged

conduct that it deemed adequately supported” by the evidence, “‘a court of

appeals may have to undertake a cumbersome review of the record to determine

what facts the district court . . . likely assumed.’” Behrens, 516 U.S. at 313

(quoting Johnson, 515 U.S. at 319). Thus, if the district court concludes that a

genuine issue of material fact exists in denying qualified immunity, but does not

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set forth with specificity the facts presented by the plaintiff that support a finding

that the defendant violated a clearly established right, then we may look behind

the order denying summary judgment. In such circumstances, but only in such

circumstances, we may review the entire record, construing the evidence in the

light most favorable to the plaintiff, and determine de novo whether the plaintiff

in fact presented sufficient evidence to forestall summary judgment on the issue

of qualified immunity. Conversely, where the district court makes a legal finding

and states specific facts upon which that finding is based, we do not have

jurisdiction to delve behind the ruling and review the record to determine if the

district court correctly interpreted those facts to find a genuine dispute.

Here, the district court found that Plaintiffs presented a dispute of fact

regarding whether Defendants knew that Armijo was suicidal and could not care

for himself. As a result, we do not have jurisdiction to consider Defendants’

argument that there is no material dispute of fact as to those issues. Even if the

district court erred in reaching that finding, we would not have jurisdiction to

review that fact-based determination on an interlocutory appeal. See Myers v.

Oklahoma County Bd. of County Comm’rs, 80 F.3d 421, 424-25 (10th Cir.) (no

jurisdiction to hear an appeal when “the district court denied summary judgment

to the individual defendants on their qualified immunity defense on the sole basis

that there was a genuine issue for trial regarding the reasonableness of

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defendants’ conduct.”) (internal quotations and citations omitted), cert. denied

sub nom. Sharp v. Myers, 117 S. Ct. 383 (1996).

However, because the district court did not identify any other specific facts

in support of its conclusion that summary judgment was inappropriate, we will

review the record in the light most favorable to Plaintiffs on all other factual

questions in considering Defendant’s appeal. Thus, we address de novo

Defendants’ claim that no violation of any clearly established law occurred even

taking Plaintiffs’ allegations regarding those facts as true, where those allegations

have some record support. See Clanton, 129 F.3d at 1153. 4

II. Qualified Immunity

“State government officials performing discretionary functions enjoy

qualified immunity from liability under 42 U.S.C. § 1983.” Clanton, 129 F.3d at

1153. “Such immunity is qualified in that it does not obtain when otherwise

immune officials violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Id. In this case, Plaintiffs claim

that the Due Process Clause of the Fourteenth Amendment imposed upon the

4

The parties also briefed the question of jurisdiction over the issue of

qualified immunity as to the WMPS Defendants. However, Defendants did not

move below for summary judgment on qualified immunity for the WMPS

Defendants nor did the district court rule on this issue. Consequently, we need

not address this issue on appeal.

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Individual Defendants a clearly established duty to protect Armijo from his self-

inflicted death.

In Clanton, we articulated the Tenth Circuit’s framework for analyzing a

question of qualified immunity in a § 1983 claim:

In analyzing qualified immunity claims, we first ask if a plaintiff has

asserted the violation of a constitutional right at all, and then assess

whether that right was clearly established at the time of a defendant’s

actions. Once a public official raises a qualified immunity defense,

the plaintiff bears the burden of (1) coming forward with sufficient

facts to show that the defendant’s conduct violated the law; and (2)

demonstrating that the relevant law was clearly established when the

alleged violation occurred.

Id. (quoting Gehl Group v. Koby, 63 F.3d 1528, 1533 (10th Cir. 1995) (quotations

and internal citations omitted).

In showing that the law was clearly established, the plaintiff does not have

to show that the specific action at issue had been held unlawful, but the alleged

unlawfulness of the defendant’s conduct must be apparent in light of preexisting

law. See id. at 1154. “The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Id. (quotations omitted). “[I]t is the plaintiff’s burden to establish the asserted

right’s contours are sufficiently clear such that a reasonable official would

understand that what he is doing violates that right.” Id. at 1156 (quotations

omitted). The plaintiff may satisfy his or her burden by showing that there is a

Supreme Court or Tenth Circuit opinion on point, or that his or her proposition is

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supported by the weight of authority from other courts. Id. However, we do not

require plaintiffs to produce a factually identical case, but allow some degree of

generality in factual correspondence. See id. at 1156-57.

Generally, state actors are liable only for their own acts, and not the violent

acts of third parties. See Liebson v. New Mexico Corrections Dep’t, 73 F.3d 274,

276 (10th Cir. 1996). However, there are two exceptions to this general rule:

The first exception, known as the special relationship doctrine,

“exists when the state assumes control over an individual sufficient

to trigger an affirmative duty to provide protection to that

individual. . . .” The second exception, sometimes referred to as the

“danger creation” theory, provides that a state may also be liable for

an individual’s safety “if it created the danger that harmed the

individual.”

Id. (quoting Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995), and DeShaney v.

Winnebago County Dep’t of Social Servs., 489 U.S. 189, 199-200 (1989)).

a. Special Relationship

A state is not required to provide its citizens with “particular protective

services” under the Due Process Clause, and “failure to protect an individual

against private violence simply does not constitute a violation of the Due Process

Clause.” DeShaney, 489 U.S. at 197. However, if the state restrains an

individual’s freedom to act to protect himself or herself through a restraint on that

individual’s personal liberty, the state may thereby enter into a “special

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relationship” during such restraint to protect that individual from violent acts

inflicted by others.

In the substantive due process analysis, it is the State’s affirmative

act of restraining the individual’s freedom to act on his own behalf--

through incarceration, institutionalization, or other similar restraint

of personal liberty--which is the “deprivation of liberty” triggering

the protections of the Due Process Clause, not its failure to act to

protect his liberty interests against harms inflicted by other means.

Id. at 200; see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239

(1983) (duty to provide medical care to injured suspects in police custody);

Youngberg v. Romeo, 457 U.S. 307 (1982) (duty to protect involuntarily

committed mental patients from harm by themselves and others). This court has

held that a plaintiff must show involuntary restraint by the government official in

order to establish a duty to protect under the special relationship theory. See

Liebson, 73 F.3d at 276 (holding that a librarian who was sexually assaulted while

working in a prison failed to show the existence of a special relationship because

her employment was voluntary).

We have applied this principle in the context of a claim that a school

district had a duty to protect a student from his fellow students. In

Graham v. Independent Sch. Dist. No. I-89, 22 F.3d 991, 994-95

(10th Cir. 1994), we held that schools have no duty under the Due

Process Clause to protect students from assaults by other students,

even where the school knew or should have known of the danger

presented. If the state takes a person into custody or holds him

against his will, the state assumes some measure of a constitutionally

mandated duty of protection. Id. at 994. Compulsory attendance

laws for public schools, however, do not create an affirmative

constitutional duty to protect students from the private actions of

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third parties while they attend school. Id. (citing Maldonado v.

Josey, 975 F.2d 727, 732 (10th Cir. 1992), cert. denied, 507 U.S.

914, 113 S. Ct. 1266, 122 L.Ed.2d 662 (1993)). Inaction by the state,

in the face of a known danger, is not enough to trigger a

constitutional duty to protect unless the state has a custodial or other

“special relationship” with the victim. See Graham, 22 F.3d at 995.

“The affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament . . . but from the

limitation which it has imposed on his freedom to act on his own

behalf.” DeShaney, 489 U.S. at 200, 109 S. Ct. at 1005-06.

Seamons v. Snow, 84 F.3d 1226, 1235-36 (10th Cir. 1996).

The district court made no findings of specific facts that would support a

special relationship theory of liability. Thus, we may review the record to

determine what facts the district court likely assumed. See Behrens, 516 U.S. at

313. At most, Armijo was a student in a public school confined in Herrera’s car

during the drive home from school. Even if such circumstances constituted a

custodial relationship, that relationship ended once Armijo exited the car and ran

to his house because at that point he was no longer under any involuntary restraint

by a school official. The only “restraint” imposed upon Armijo after his removal

from school was Schutz’ directive that he not return to school that day.

Otherwise, Armijo was free to do whatever he wanted, including voluntarily

leaving his house. Banning a student from the school grounds does not rise to the

same level of involuntary restraint as arresting, incarcerating, or institutionalizing

an individual. The fact that Armijo ended his life after he was “released” by

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Herrera bars any liability under the special relationship doctrine. 5 Thus, the

district court erred as a matter of law by denying qualified immunity to the

Individual Defendants on the special relationship claim.

b. Danger Creation

As noted above, the district court found that Plaintiffs presented sufficient

evidence to create a dispute over whether the Individual Defendants generally

knew that Armijo was suicidal and knew that removing him from school and

leaving him home alone could unreasonably create a risk of harm. Thus, we do

not have jurisdiction to review the sufficiency of the factual basis supporting

these specific findings by the district court. See Clanton, 129 F.3d at 1153.

However, the district court nowhere made findings as to whether there were facts

creating a dispute as to whether each of these Individual Defendants in fact did

anything to cause the danger that arguably cost Armijo his life. On the issue of

actual danger creation, all the district court did was to issue the conclusory legal

ruling that “Plaintiffs allege sufficient facts pointing to affirmative actions taken

by defendants that created or increased the danger to Philadelfio Armijo”

5

Defendants’ knowledge of the risk of harm to Armijo is not relevant to

the determination of whether a special relationship existed. See Graham v.

Independent Sch. Dist. No. I-89, 22 F.3d 991, 994 (10th Cir. 1994)

(“foreseeability cannot create an affirmative duty to protect” under the special

relationship doctrine “when plaintiff remains unable to allege a custodial

relationship”).

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(emphasis added). This statement by the court, however, is only a generalized

statement of what constitutes sufficient allegations, as a matter of law, to state a

danger creation cause of action. It does not constitute findings of fact, nor even a

finding that particular material facts were in dispute. Thus, we are free to

examine the record to see what evidence, if any, the district court may have been

relying on in denying summary judgment on the ground that these Individual

Defendants created the danger that arguably cost Armijo his life.

First, however, we must determine whether the district court was correct in

determining that danger creation jurisprudence was clearly established as a matter

of law at the time of the conduct here at issue. On this issue we agree with the

district court that the law was clearly established.

“[S]tate officials can be liable for the acts of third parties where those

officials ‘created the danger’ that caused the harm.” Seamons, 84 F.3d at 1236

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

that “the danger creation theory must ultimately rest on the specifics of a

substantive due process claim – i.e. a claim predicated on reckless or intentional

injury-causing state action which ‘shocks the conscience.’” 64 F.3d at 572. In

order to discern whether the facts of a particular case “shock the conscience” so

as to support a substantive due process claim,

we must bear in mind three basic principles highlighted by the

Supreme Court . . .: (1) the need for restraint in defining [the] scope

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[of substantive due process claims]; (2) the concern that § 1983 not

replace state tort law; and (3) the need for deference to local

policymaking bodies in making decisions impacting upon public

safety.

Id. at 573 (internal citations omitted). We held that to satisfy the “shock the

conscience” standard, “the plaintiff must demonstrate a degree of outrageousness

and a magnitude of potential or actual harm that is truly conscience shocking.”

Id. at 574. We declined to precisely define this level of conduct, but left it to

evolve over time. See id. “We do know, however, that the ‘shock the

conscience’ standard requires a high level of outrageousness, because the

Supreme Court has specifically admonished that a substantive due process

violation requires more than an ordinary tort . . . .” Id.

In Uhlrig, we articulated a five-part test to determine whether a defendant

created a special danger for the plaintiff:

Plaintiff must demonstrate that (1) [Plaintiff] was a member of a

limited and specifically definable group; (2) Defendants’ conduct put

[Plaintiff] . . . at substantial risk of serious, immediate and proximate

harm; (3) the risk was obvious or known; (4) Defendants acted

recklessly in conscious disregard of that risk; and (5) such conduct,

when viewed in total, is conscience shocking.

Id. Although this five part test is correct, so far as it goes, it is not entirely

complete in light of the Supreme Court’s decision in DeShaney , 489 U.S. at 201.

In DeShaney , the Court held that the State had not violated the Due Process

Clause by returning a child to the custody of his abusive father, who then beat the

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child and caused him permanent brain damage. Id. Although the plaintiff in that

case arguably met the five criteria set forth in Uhlrig , the Supreme Court held

that the plaintiff’s § 1983 claim must fail. Specifically, the DeShaney Court

stated:

While the State may have been aware of the dangers that [plaintiff]

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. . . . [I]t

placed him in no worse position than that in which he would have

been had it not acted at all.

Id. Thus, in addition to meeting Uhlrig’s five-part test, a plaintiff must also show

that the charged state entity and the charged individual defendant actors created

the danger or increased the plaintiff’s vulnerability to the danger in some way. 6

In other words, if the danger to the plaintiff existed prior to the state’s

intervention, then even if the state put the plaintiff back in that same danger, the

state would not be liable because it could not have created a danger that already

existed. 7

6

Because the court in Uhlrig found that the plaintiff in that case did not

meet the five requirements set forth in the opinion, see Uhlrig, 64 F.3d at 575-76,

the court did not need to reach the question of the state’s role in causing or

enhancing the danger to the plaintiff. As a result, our holding is not inconsistent

with the holding in Uhlrig or subsequent Tenth Circuit opinions relying on Uhlrig

that also denied recovery because the plaintiff failed to meet Uhlrig’s five-part

test. See Seamons, 84 F.3d at 1236; Liebson, 73 F.3d at 276-77.

7

Compare Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993)

(allowing recovery for injury that resulted from police indication to “skinheads”

that they would not interfere if “skinheads” beat up flag-burning protesters

(continued...)

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The key to the state-created danger cases . . . lies in the state actors’

culpable knowledge and conduct in affirmatively placing an

individual in a position of danger, effectively stripping a person of

her ability to defend herself, or cutting off potential sources of

private aid. Thus the environment created by the state actors must be

dangerous; they must know it is dangerous; and, to be liable, they

must have used their authority to create an opportunity that would not

otherwise have existed for the third party’s [acts] to occur.

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

citations and quotations omitted); see also Reed v. Gardner, 986 F.2d 1122, 1126

(7th Cir. 1993) (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 than they otherwise would

have been”); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990) (DeShaney

“establishes the possibility that a constitutional duty to protect an individual

7

(...continued)

because “the defendant officers indeed had made the demonstrators more

vulnerable to assaults”); Ross v. United States, 910 F.2d 1422, 1431 (7th Cir.

1990) (allowing recovery for injury resulting from state prevention of private

rescue attempt); and Estate of Sinthasomphone v. City of Milwaukee, 785 F.

Supp. 1343, 1349 (E.D. Wis. 1992) (city increased vulnerability of boy when its

officers threatened to arrest private citizens who wanted to intervene to protect

the boy and then sent the boy back naked to Jeffrey Dahmer); with Salas v.

Carpenter, 980 F.2d 299, 309-10 (5th Cir. 1992) (no liability where city did not

increase risk of harm to hostage by declining assistance from a SWAT team from

another department and taking a hard line with hostage taker); Jackson v. City of

Joliet, 715 F.2d 1200, 1204-1205 (7th Cir. 1983) (no liability where “state

officers did not create but merely failed to avert danger” by not promptly rescuing

victims from burning car); and Rogers v. City of Port Huron, 833 F. Supp. 1212,

1218-19 (E.D. Mich. 1993) (no liability where police did not increase danger to

drunken man lying next to the road by refusing to assist him).

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against private violence may exist in a non-custodial setting if the state has taken

affirmative action which increases the individual’s danger of, or vulnerability to,

such violence beyond the level it would have been at absent state action.”).

The particular facts found in dispute by the district court, in conjunction

with the evidence culled from our review of the record on issues not specifically

addressed by the district court, 8 were sufficient to raise factual inferences that

could satisfy the five part test set forth in Uhlrig as to Individual Defendants

Schutz and Herrera: (1) Armijo was a member of a limited and specifically

definable group--special education students who have expressed threats of

suicide, (2) Schutz’ and Herrera’s conduct put Armijo at substantial risk of

serious, immediate and proximate harm by suspending him from school, which

caused him to become distraught and to threaten violence, and then taking him to

his home and leaving him alone with access to firearms, (3) they had some

knowledge that might support an inference that Armijo was suicidal and

distraught, was unable to care for himself, was home alone, and at least some of

the Individual Defendants knew Armijo had access to firearms, (4) by taking this

8

The district court made no findings on whether Plaintiffs presented

evidence that the Individual Defendants knew that Armijo would be home alone

or whether the school knew that the disciplinary action would worsen Armijo’s

situation. Thus, we can review the record for evidence on those issues. Taking

the evidence in the light most favorable to Armijo, Plaintiffs did present genuine

disputes of fact on those two factual questions.

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action, knowing of Armijo’s vulnerability and risks of being left alone at home,

Schutz and Herrera acted recklessly in conscious disregard of the risk of suicide,

and (5) such conduct, if true, when viewed in total, possibly could be construed as

conscience-shocking, depending on context as determined after a full trial. In

addition, these facts taken as true also could be construed to show (6) that Schutz

and Herrera increased the risk of harm to Armijo. Thus, the district court

properly denied summary judgment on this issue as to Schutz and Herrera. 9

However, we reverse the district court’s order denying summary judgment

as to Defendant Clouthier. Clouthier was a school aide and there is nothing in

this record to support a conclusion that Clouthier caused or created the danger

that arguably led to Armijo’s death. There is nothing in this record to suggest

that Clouthier was involved in the decision to suspend Armijo or to send him

home alone without adult supervision. In the absence of any evidence that

Clouthier caused or created the danger, she was entitled to summary judgment.

Behrens, 516 U.S. at 313.

9

As pointed out above, we must draw all inferences in favor of Plaintiffs

because this matter comes before us upon a denial of summary judgment for the

Individual Defendants. It may be that, at trial, Plaintiffs will be unable to carry

their burden of proof as to these Individual Defendants, and we cannot help but

observe that the facts presently before us are very thin to establish a number of

the six factors required for liability. However, given all inferences to Plaintiffs

and accepting the unreviewability of the district court’s factual findings pursuant

to Johnson v. Jones, we must affirm the denial of summary judgment to Individual

Defendants Schutz and Herrera.

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III. Cross-Appeal

In order to consider the cross-appeal, we must exercise pendent appellate

jurisdiction. See Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.

1995). Although discretionary, the exercise of pendent appellate jurisdiction “is

generally disfavored.” Id. In Swint v. Chambers County Comm’n, 514 U.S. 35,

50-51 (1995), the Supreme Court held that pendent appellate jurisdiction

generally should not be exercised over otherwise interlocutory appeals. The

Court stated that purely pragmatic considerations such as judicial economy would

not support the exercise of pendent appellate jurisdiction because “a rule loosely

allowing pendent appellate jurisdiction would encourage parties to parlay . . .

collateral orders into multi-issue interlocutory appeal tickets.” Id. at 49-50.

However, this court has interpreted Swint as suggesting that “pendent appellate

jurisdiction might still be appropriate where the otherwise nonappealable decision

is ‘inextricably intertwined’ with the appealable decision, or where review of the

nonappealable decision is ‘necessary to ensure meaningful review’ of the

appealable one.” Moore, 57 F.3d at 930 (quoting Swint, 514 U.S. at 51). “[A]

pendent appellate claim can be regarded as inextricably intertwined with a

properly reviewable claim on collateral appeal only if the pendent claim is

coterminous with, or subsumed in, the claim before the court on interlocutory

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appeal – that is, where the appellate resolution of the collateral appeal necessarily

resolves the pendent claim as well.” Id.

Plaintiffs argue that Moore supports the exercise of pendent appellate

jurisdiction in this case. This court in Moore chose to exercise pendent appellate

jurisdiction over a municipality’s appeal of the denial of summary judgment in its

favor in conjunction with a city official’s appeal of the denial of summary

judgment on the issue of qualified immunity because resolving the issue of

qualified immunity in favor of the city official completely resolved the claim

against the municipality. See Moore, 57 F.3d at 930. As a result, the court in

Moore found that the pendent claims were “coterminous with, or subsumed in,”

the claim appropriately before the court on interlocutory appeal. Id. However,

the court in Moore noted that the “narrow avenue for the continued use of pendent

appellate jurisdiction left open by Swint” does not apply if a “ruling on the

merits” of the interlocutory appeal does not “resolve all of the remaining issues

presented by the pendent appeal.” Id.

Here, a ruling on the issue of qualified immunity will not resolve Plaintiffs’

claims on which the district court granted summary judgment in favor of the

WMPS Defendants. For example, the IDEA claim does not involve the

application of the “danger creation” or “special relationship” theories. Indeed,

because we find that the individual defendants Schutz and Herrera are not entitled

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to qualified immunity on Plaintiffs’ danger creation theory claims, our holding

does not conclusively resolve any claims in this case against the WMPS

Defendants. As a result, we refuse to exercise pendent jurisdiction over

Plaintiffs’ cross-appeal.

CONCLUSION

For these reasons, in Case No. 97-2150, we REVERSE the district court’s

order denying summary judgment to individual defendant Clouthier on the

“danger creation” theory, and we AFFIRM the district court’s order denying

summary judgment to individual defendants Schutz and Herrera on the “danger

creation” theory; we REVERSE the district court’s order denying summary

judgment on the “special relationship” theory as to all Individual Defendants; and

we REMAND for further proceedings not inconsistent with this opinion. Appeal

No. 97-2167 is DISMISSED for lack of jurisdiction.

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