Ammons v. Washington Department of Social & Health Services

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRYSTAL AMMONS, 

Plaintiff-Appellee,

v.

No. 09-36130

STATE OF WASHINGTON DEPARTMENT

OF SOCIAL AND HEALTH SERVICES;  D.C. No.

3:08-cv-05548-RBL

NORM WEBSTER, individually and

in his official capacity acting OPINION

under color of state law; MARY

LAFOND,

Defendants-Appellants.



Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

November 5, 2010—Seattle, Washington

Filed August 17, 2011

Before: Betty B. Fletcher and Jay S. Bybee, Circuit Judges,

and Claudia Wilken, District Judge.*

Opinion by Judge B. Fletcher;

Partial Concurrence and Partial Dissent by Judge Bybee

*The Honorable Claudia Wilken, United States District Judge for the

Northern District of California, sitting by designation.

10947

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10951

COUNSEL

David P. Moody, Hagens Berman Sobol Shapiro LLP, Seattle,

Washington, for the plaintiff-appellee.

Ian M. Bauer and Patricia Campbell Fetterly, Office of the

Attorney General of Washington, Olympia, Washington, for

the defendants-appellants.

OPINION

B. FLETCHER, Circuit Judge:

Appellants Mary LaFond (“LaFond”) and Norman Webster

(“Webster”) (collectively “Appellants”), relying on qualified

immunity, appeal the district court’s order denying their

motion for summary judgment. Appellee Crystal Ammons

(“Ammons”) sued LaFond and Webster under 42 U.S.C.

§ 1983 for violating her Fourteenth Amendment substantive

due process right to safe conditions while in the custody of a

state-run mental institution. The district court denied Appel-

lants’ motion for summary judgment, rejecting both LaFond’s

and Webster’s claims of qualified immunity. It concluded that

the record, when read in the light most favorable to Ammons,

supported the claim that Appellants failed to exercise profes-

sional judgment with respect to Ammons’s safety. Appellants

timely appealed. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm in part and reverse in part.

I.

The events in this case took place at the Washington State

Department of Social and Health Services’s (“DSHS”) Child

10952 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

Study and Treatment Center (“CSTC”). The CSTC is a resi-

dential psychiatric hospital for severely emotionally and

behaviorally disturbed children, which, in 2001, served

approximately forty-eight inpatients. CSTC’s residents are

both patients at CSTC and in its custody.

Appellant Mary LaFond was CSTC’s Chief Executive Offi-

cer from 1995 to the end of March 2003. Appellant Norm

Webster worked intermittently at CSTC in various capacities

between 1970 and 1990. He then served as the Director of

Nursing Services from January to April 2003.1 In April 2003,

upon LaFond’s departure from CSTC, Webster succeeded her

as CSTC’s CEO.

On February 10, 2000, during LaFond’s tenure as CEO, she

received a letter from CSTC Director of Nursing Services,

Mary Claire Rutherford, which raised, among other things,

concerns about improper clinical staff handling of reported

sexual incidents in the resident cottages.

In early 2001, also during LaFond’s tenure, a patient at

CSTC (“Resident A”) alleged that a male staff member

named Anthony Grant had sexually molested her. These alle-

gations were reported to Child Protective Services (“CPS”)

and, according to LaFond, Grant’s access to the female

patients was restricted during the resulting investigation. CPS

conducted interviews with Resident A, Grant, other staff, and

at least one patient. Resident A repeated to the CPS investiga-

tor that Grant had molested her. While later speaking with Dr.

Jan Bacon, the resident psychologist, however, she recanted

her accusation, stating at the same time that she was upset

about losing contact with Grant. After LaFond informed the

CPS investigator that Resident A had recanted, CPS con-

cluded that the allegations were “unfounded” and closed the

investigation.

1

Webster left in February of 1990 and returned in January 2003. He was

not employed at CSTC in 2000 or 2001.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10953

In October 2001, after CPS closed its investigation of

Grant, Crystal Ammons was admitted to CSTC. Ammons was

a thirteen-year-old girl who had become a dependent of the

State of Washington at the age of four. Prior to her placement

at CSTC, Ammons had been raised by her maternal grand-

mother and then by an aunt and uncle; she was removed from

her aunt and uncle’s care after she reported that her uncle had

sexually abused her. Ammons’s uncle was ultimately con-

victed of molesting her. She was moved into foster care in

March 1995, at age seven. Between the ages of seven and

eighteen, Ammons was placed in various residential care

facilities and psychiatric hospitals, one of which was CSTC.2

In October 2001, when she began residing at CSTC, Ammons

was in the foster care of social worker Corrie Tienhaara

(“Tienhaara”) and her family.

While Ammons was at CSTC, she stayed in regular contact

with Tienhaara, who became concerned about Ammons’s pre-

occupation and seemingly close relationship with Grant. Tien-

haara’s concerns grew upon learning that Grant had given

Ammons gifts, including a stuffed animal and compact discs.

Tienhaara visited CSTC for the first time in November 2002,

at which time she communicated her concerns about Grant to

Ilys Hernandez (“Hernandez”), the head of Ammons’s cottage

at CSTC. Tienhaara voiced her concerns in a straightforward

manner, and she specifically requested that Grant not be per-

mitted to be alone with Ammons. In response, Hernandez told

her that Grant was never alone with Ammons and that CSTC

had a strict policy against male counselors being alone with

female patients. Hernandez did not reveal that any other alle-

gations of abuse had been made against Grant.

In March 2003, Hernandez accompanied Ammons to Tien-

haara’s home in North Dakota, in preparation for her dis-

2

By the time Ammons aged out of the system at age eighteen, she had

resided in fifteen different foster homes, residential facilities, and psychi-

atric hospitals.

10954 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

charge from CSTC and her transition back into Tienhaara’s

family. There, Tienhaara repeated her concerns to Hernandez,

and was again reassured that Grant and Ammons would not

be alone together. In late March 2003, however, Tienhaara

learned Ammons was scheduled to go on a one-on-one outing

with Grant. When she called Hernandez to voice her objec-

tion, she was told that the facility “[wouldn’t] go ahead and

approve that.”

Ammons’s file reveals that, during her time at CSTC, the

CSTC staff documented 188 incidents of Ammons’s flirta-

tious behavior with male staff. The notes associated with her

evaluations indicate that she had “boundary problems” with

the staff, and they direct staff members to closely monitor her

interactions specifically with male employees. Throughout the

early part of 2003, before Ammons left the facility, it was fur-

ther noted that Ammons had a “crush” on one of the male

staff members, and that she was spending time with him alone

and seeking out his attention.

Jessica Ramsey, a fellow patient at CSTC who was friends

with Ammons, testified that Grant was “extremely flirtatious”

with her and Ammons, and that their flirtatious interactions

were apparent to Hernandez and Dr. Bacon. She further testi-

fied that it was obvious how infatuated Ammons was with

Grant, but that no restrictions were ever placed on Grant’s

interactions with Ammons or Ramsey. Rather, according to

Ramsey, the frequency of Grant’s interactions with her and

Ammons continued to escalate. Ramsey stated that she and

Ammons would pass notes through other staff members to

Grant so often that “the night shift was getting mad” at her.

She also testified that she and Ammons had “entire sections

on the walls of [their] room (where any staff member could

see them) . . . dedicated to Mr. Grant,” where they posted flir-

tatious signs such as “Hottie Alert Tony,” and “Tony’s Finer

than Silk.”

According to Ramsey, Grant gave Ramsey and Ammons

pictures of himself, letters, stuffed animals for Valentine’s

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10955

Day, music CDs and, at least to Ramsey, his personal cell

phone number. On one occasion, Grant painted Ramsey’s

nails. Ramsey testified that she was often alone with Grant in

the cottage’s TV room or in her “pod,” a part of the cottage

with female bedrooms, including hers. She further testified

that she “once or twice” saw Grant and Ammons leave

through the pod door to go to the “canteen,” a part of the

building with a soda machine and a snack machine.

On April 18, 2003, Ammons was discharged from CSTC

and went to live in North Dakota with Tienhaara and her fam-

ily. After Ammons left CSTC, Tienhaara discovered that she

and Grant were corresponding via e-mail. These e-mails were

extremely flirtatious and revealed that Ammons and Grant

were romantically involved. For example, Ammons signed

her e-mails “Crystal Grant,” and Grant once wrote, “Wanna

go to the canteen tonight? ;) (I wish!).” Shortly after Tien-

haara discovered the e-mails, Ammons told her that Ammons

and Grant had been sexually involved from January 2003

until she left CSTC. The relationship Ammons described

included sexual intercourse and other types of sexual activity

that took place on multiple occasions in the “canteen area.” At

the time this sexual relationship began, Grant was twenty-nine

years old, and Ammons was fourteen. Tienhaara contacted

CSTC about this molestation, and CSTC placed Grant on

leave. After investigating the matter for several months,

CSTC concluded that Grant had, while on duty, engaged in

sexual intercourse with Ammons during her residence at the

facility. CSTC eventually fired Grant.3

Ammons sued DSHS, LaFond, and Webster in Pierce

County Superior Court, alleging that (1) DSHS was negligent

3

Grant was criminally charged with three counts of rape of a child in the

third degree and one count of child molestation in the third degree. On

February 22, 2005, Grant entered an Alford/Newton plea to the charge of

communication with a minor for immoral purposes in violation of Wash-

ington law.

10956 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

under state law for failing to protect her from the “known

dangerous proclivities of Anthony Grant,” and (2) LaFond

and Webster were deliberately indifferent to Ammons’s

safety, in violation of 42 U.S.C. § 1983. The case was

removed to federal district court. After the exchange of some

discovery, Ammons moved for summary judgment. Appel-

lants cross-moved for the same, arguing that they were enti-

tled to qualified immunity.

The district court denied all parties’ motions for summary

judgment, finding that issues of material fact remained unre-

solved. The court held that LaFond and Webster were not,

under Neely v. Feinstein, 50 F.3d 1502 (9th Cir. 1995), enti-

tled as a matter of law to qualified immunity. The court rea-

soned that, viewed in the light most favorable to Ammons, the

evidence established that LaFond and Webster had “numerous

warnings” of the risk posed to Ammons by Grant, and that

Appellants “did literally nothing” in response to those warn-

ings. LaFond and Webster timely appealed. The issue of

whether they are entitled to qualified immunity is now before

us.

II.

We first resolve whether we have jurisdiction to hear this

interlocutory appeal. “[A] district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of

law, is an appealable ‘final decision’ within the meaning of 28

U.S.C. § 1291 notwithstanding the absence of a final judg-

ment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This is

because “[w]hen summary judgment is denied to a defendant

who urges that qualified immunity shelters her from suit, the

court’s order finally and conclusively disposes of the defen-

dant’s claim of right not to stand trial.” Ortiz v. Jordan, 131

S. Ct. 884, 891 (2011) (citing Mitchell, 472 U.S. at 527)

(internal quotation marks and alteration omitted). “[T]he

appealable issue is a purely legal one: whether the facts

alleged [ ]by the plaintiff . . . support a claim of violation of

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10957

clearly established law.” Mitchell, 472 U.S. at 528 n.9.

Accordingly, “[o]ur jurisdiction in these matters generally is

limited to questions of law and does not extend to claims in

which the determination of qualified immunity depends on

disputed issues of material fact.” Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001); see also Ortiz, 131 S. Ct. at 891.

“Where disputed facts exist, however, we can determine

whether the denial of qualified immunity was appropriate by

assuming that the version of the material facts asserted by the

non-moving party is correct.” Jeffers, 267 F.3d at 903 (cita-

tions omitted).

In this appeal, we are asked to resolve multiple issues of

law, including the correct standard under which to assess

alleged violations of Fourteenth Amendment substantive due

process rights by state hospital administrators, and the extent

to which this law is clearly established. We must also deter-

mine whether the facts alleged and shown by Ammons, some

of which are in dispute, support a constitutional violation.

Accordingly, we have jurisdiction to hear this appeal, and we

evaluate Appellants’ claims of qualified immunity by resolv-

ing all factual disputes in Ammons’s favor. See id.

III.

We review de novo a district court’s denial of qualified

immunity by summary judgment. Davis v. City of Las Vegas,

478 F.3d 1048, 1053 (9th Cir. 2007) (citing Bingham v. City

of Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003)). In

reviewing the denial of qualified immunity, we consider the

“purely legal issue of whether facts alleged by the plaintiff

support a claim of violation of clearly established law” such

that appellants are not immune from suit. Lytle v. Wondrash,

182 F.3d 1083, 1086 (9th Cir. 1999) (internal citation and

quotation marks omitted).

[1] Qualified immunity shields state officers from civil lia-

bility for damages unless (1) the facts alleged by the plaintiff

10958 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

establish a violation of the plaintiff ’s constitutional rights;

and (2) the constitutional right in question was “clearly estab-

lished” when the defendant committed his alleged miscon-

duct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808,

815-16 (2009). Put another way, “[t]he principles of qualified

immunity shield an officer from personal liability when an

officer reasonably believes that his or her conduct complies

with the law.” Id. at 823. Courts are given the discretion to

decide “which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances

in the particular case at hand.” Id. at 818.

Here, it is difficult to assess whether the facts alleged by

Ammons establish the alleged constitutional violation without

setting forth the governing law. Therefore, we first examine

the clearly established law with respect to the alleged Four-

teenth Amendment violation, and then determine whether the

facts before us support such a violation.

IV.

For a constitutional right to be “clearly established,” “[t]he

contours of the right must be sufficiently clear that a reason-

able official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

In other words, “in light of pre-existing law the unlawfulness

must be apparent.” Id.

A. The Constitutional Right

Although Ammons asserts in her complaint that Appellants

violated her constitutional right to “equal protection, as well

as [her] constitutionally protected right to procedural and due

process of law,” the alleged facts and her contention that

LaFond and Webster were “deliberately indifferent” to her

safety make clear that her § 1983 claim is based on her Four-

teenth Amendment substantive due process right to safe con-

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10959

ditions while involuntarily committed to the custody of a state

actor.

[2] Involuntarily committed patients in state mental health

hospitals have a Fourteenth Amendment due process right to

be provided safe conditions by the hospital administrators. In

Youngberg v. Romeo, 457 U.S. 307, 310 (1982), the Supreme

Court was confronted with an involuntarily committed mental

patient in a state hospital who alleged that, while at the hospi-

tal, he had been injured on numerous occasions “by his own

violence and by the reactions of other residents to him.” The

patient, Romeo, sued three hospital administrators for failing

to institute appropriate procedures to prevent the injuries they

“knew, or should have known” Romeo was receiving, thereby

violating Romeo’s rights under the Fourteenth Amendment.

Id. Noting that “the right to personal security constitutes an

‘historic liberty interest’ protected substantively by the Due

Process Clause,” the Court held that “[i]f it is cruel and

unusual punishment to hold convicted criminals in unsafe

conditions, it must be unconstitutional to confine the involun-

tarily committed — who may not be punished at all — in

unsafe conditions.” Id. at 315-16 (citations omitted).

[3] According to Youngberg, the Constitution requires that

hospital officials, in order to protect a patient’s right to safe

conditions, exercise professional judgment. Id. at 321-22. The

Court explained that liability may be imposed for failure to

provide safe conditions “when the decision made by the pro-

fessional is such a substantial departure from accepted profes-

sional judgment, practice, or standards as to demonstrate that

the person responsible actually did not base the decision on

such a judgment.” Id. at 323.4 Youngberg, then, created a stan-

4

Although the issue was not directly before it, the Court also held that

the district court should have admitted expert testimony that was excluded

because such testimony may have been “relevant to whether [the adminis-

trators’] decisions were a substantial departure from the requisite profes-

sional judgment.” Id.

10960 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

dard whereby whether a hospital administrator has violated a

patient’s constitutional rights is determined by whether the

administrator’s conduct diverges from that of a reasonable

professional. We refer to this as the “Youngberg professional

judgment standard.” In distinguishing this standard from the

“deliberate indifference” standard used in Eighth Amendment

cruel and unusual punishment cases, the Youngberg Court

noted that “[p]ersons who have been involuntarily committed

are entitled to more considerate treatment and conditions of

confinement than criminals whose conditions of confinement

are designed to punish.” Id. at 321-22 (emphasis added). The

Court approvingly cited the Youngberg professional judgment

standard in County of Sacramento v. Lewis, 523 U.S. 833, 852

n.12 (1998), noting that “[t]he combination of a patient’s

involuntary commitment and his total dependence on his cus-

todians obliges the government to take thought and make rea-

sonable provision for the patient’s welfare.”5

5

The dissent’s formulation of the Youngberg professional judgment

standard is misleading. According to our dissenting colleague, we should

examine only whether LaFond exercised any professional judgment at all,

because, under Youngberg, “exercising any professional judgment will

shield a state hospital professional from § 1983 liability.” The Youngberg

standard, however, is not so permissive. In requiring that “professional

judgment” be exercised, the Court made clear that the judgment of profes-

sionals must not depart substantially from “accepted professional judg-

ment, practice, or standards,” 457 U.S. at 323, with respect to protecting

a patient’s right to safety, id. at 322. Just “any” judgment, therefore, will

not do; the official must exercise judgment that comports with an objec-

tive standard. Id. at 322-23 (noting that the courts must make certain that

“professional judgment in fact was exercised”).

Moreover, the dissent misconstrues the nature of the presumption artic-

ulated in Youngberg. While Youngberg does state that decisions made by

a public official are presumptively valid as an initial matter, the case also

makes clear that the method by which that presumption is overcome is the

application of the Youngberg professional judgment standard itself, that is,

by assessing whether the actions of the professional meet this objective

standard. Id. at 323. In other words, the Youngberg professional judgment

standard does not contain any presumption in favor of government offi-

cials; instead, the standard is the mechanism by which we assess whether

the presumption has been overcome. Our task, therefore, is to apply the

Youngberg professional standard to determine whether the presumptive

validity of LaFond’s and Webster’s conduct has been rebutted. This is pre-

cisely what we do in this opinion.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10961

[4] Relying upon Youngberg, the Ninth Circuit has repeat-

edly recognized the Fourteenth Amendment right of involun-

tarily committed patients to safe confinement conditions. See

Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995) (“A

mental patient’s right to personal security in the institution to

which he or she is committed was clearly established in 1988

[the year of the alleged violation].”); Flores by Galvez-

Maldonado v. Meese, 942 F.2d 1352, 1363 (9th Cir. 1991)

(describing Youngberg’s holding as “when individual is in

state custody, state may acquire constitutional duty to ensure

individual’s safe care”); Estate of Conners by Meredith v.

O’Connor, 846 F.2d 1205, 1207 (9th Cir. 1988) (holding that,

under Youngberg, patients who have been involuntarily com-

mitted to a state mental hospital retain liberty interests in

safety). Therefore, at the time the events alleged in this case

took place, it was clearly established that LaFond and Web-

ster, as state officials, had a duty to exercise professional

judgment to provide safe conditions for Ammons and the

other patients at CSTC.

B. Violation of the Constitutional Right

In light of the clearly established law that hospital officials

must provide safe conditions for involuntarily committed

patients, we now examine the circumstances under which

state hospital officials may be held responsible for failing to

do so.

We previously applied the Youngberg professional judg-

ment standard in Neely, 50 F.3d at 1507, a case with facts

remarkably similar to those presented here. There, a female

patient (Neely), who had been allegedly molested by a hospi-

tal staff member (Terry), sued state mental hospital adminis-

trators and staff. Neely named as defendants Feinstein, the

hospital superintendent; Hosley, the Director of Nursing;

Murgo, the chairperson of the committee assigned to investi-

gate prior accusations against Terry; and Brown, the building

supervisor. Id. at 1506-07. Prior to Neely’s allegations, two

10962 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

other patients had also alleged that Terry had sexually

assaulted them. Id. at 1505. In response to both prior inci-

dents, Feinstein convened a committee to investigate the alle-

gations and, both times, the committee determined “there was

no evidence to substantiate the allegations against Terry.” Id.

at 1506. After the second investigation concluded, however,

Feinstein issued a reprimand to Terry for showing “very poor

judgment” in placing himself in situations where he was alone

with female patients. Id. Hosley issued an oral directive bar-

ring Terry’s assignment to work in the women’s ward and “in

one-to-one seclusion” with female patients. Hosley later lifted

this restriction, and Brown assigned Terry to work in one-on-

one seclusion with Neely. It was then that Terry’s alleged

assault of Neely occurred. Id. at 1506.

In our analysis, we first acknowledged that the Youngberg

professional judgment standard served as clearly established

law at the time of the alleged abuse. Id. at 1507. We recog-

nized that, in O’Connor, 846 F.2d at 1208, another case

involving a patient grievously harmed in a state-run mental

hospital, we applied the objective Youngberg standard and

equated it “ ‘to that required in ordinary tort cases for a find-

ing of conscious indifference amounting to gross negli-

gence.’ ” Neely, 50 F.3d at 1507 (quoting O’Connor, 846 F.2d

at 1208) (emphasis added).6

[5] We further explained that this “conscious indifference”

standard is not the same as the “deliberate indifference” stan-

dard used in the Eighth Amendment cruel and unusual pun-

ishment context and extended to alleged violations of pre-trial

6

As the dissent points out, in L.W. v. Grubbs, 92 F.3d 894, 897 (9th Cir.

1996), we disapproved of the use of a “gross negligence” standard in a

prison nurse’s § 1983 action against her supervisors for violation of her

substantive due process rights after an inmate allegedly attacked her. We

noted that Neely’s use of the term “gross negligence” was not necessary

to the decision, and should be limited to the claims of “captive” plaintiffs

“injured because of a miscarriage of the ‘professional judgment of a [gov-

ernment] hospital official.’ ” Id.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10963

detainees’ rights under the Fourteenth Amendment. Id. We

therefore rejected the argument that the applicable standard of

“conscious indifference” required the plaintiff to show that

the officials were “subjectively aware of the risk” posed to the

patient, noting that although a “subjective awareness require-

ment comported with the Eighth Amendment’s proscription

against cruel and unusual punishment,” there is no such

requirement to enforce patient rights arising from the Four-

teenth Amendment. Id. at 1508.7 Accordingly, we recognized

that the Youngberg professional judgment standard is “neces-

sarily an objective test.” Id. (emphasis added).8

[6] We concluded that, at the time of the hospital officials’

actions, the law in this circuit clearly established that “(1)

patients have a constitutional right to be safe in the state insti-

tution to which they are committed, and that (2) in the face

of known threats to patient safety, state officials may not act

(or fail to act) with conscious indifference, but must take ade-

7

Indeed, Neely further notes that even our Fourteenth Amendment juris-

prudence that applies the “deliberate indifference standard,” rather than

the “conscious indifference” standard applicable here, has never “required

officials to have subjective awareness of the risk of harm in order to be

deemed ‘deliberately indifferent.’ ” Id. (citation omitted).

8

LaFond and Webster cite one of our recent decisions, Tamas v. Depart-

ment of Social & Health Services et al., 630 F.3d 833 (9th Cir. 2010), for

the proposition that deliberate indifference requires a plaintiff to show that

the official was subjectively aware of facts from which an inference of

substantial risk could be drawn. Tamas, however, interprets the “deliberate

indifference” standard in the specific context of the state’s obligation

toward foster children, consistent with the holdings in other circuits. Id. at

844-45. Tamas makes no reference to Youngberg, Neely, or any case

addressing the standard applicable to public hospital officials’ duty to

ensure the safety of their patients. Indeed, it is logical that the standard

governing the state’s duties with respect to foster children would differ

from that governing the state’s actions vis-a-vis hospital patients, as the

degree of control and day-to-day responsibility that the government exerts

over the latter is considerably higher. Therefore, Neely remains the con-

trolling law of this circuit for purposes of this case, and Tamas is inappo-

site.

10964 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

quate steps in accordance with professional standards to pre-

vent harm from occurring.”9 Id.

Pursuant to this framework, we affirmed the district court’s

denial of qualified immunity for Feinstein on the ground that

he summarily disregarded the risk that Terry, a hospital

employee previously accused of sexual molestation, would

sexually abuse female patients. The evidence supported a

finding that Feinstein failed to exhibit “vigilance in protecting

the safety of female patients, and that a reasonable hospital

official would have done much more to eliminate the risk that

Terry would sexually abuse female patients under the hospi-

tal’s care.” Id. at 1509.

Murgo, the chairperson of the committee convened to

investigate the prior allegations against Terry, was found

qualifiedly immune. Id. at 1511. We reasoned that, although

the committee did not interview certain witnesses, it did inter-

view those witnesses required by hospital regulations. Id.

Hosley, who informed the shift supervisors that Terry

should not be assigned to the women’s ward or to one-on-one

seclusion with female patients, was found qualifiedly

immune. Id. Although Hosley did not put this directive in

writing, she did not act unreasonably because Feinstein, her

supervisor, did not instruct her to do so. Id. Additionally,

there was no evidence that Hosley was informed of the evi-

9

This reference to “known threats” does not negate Neely’s clear

instruction that subjective awareness of risk is not required in the context

of this Fourteenth Amendment right. Hospital officials’ knowledge of par-

ticular threats to patient safety is certainly relevant to the reasonable pro-

fessional judgment standard against which their actions are assessed, that

is, to the determination of whether the officials have acted with conscious

indifference. Such knowledge, however, is not required to demonstrate a

violation. Accordingly, Neely merely acknowledges that Feinstein was

aware or should have been aware of the risk posed by Terry, which speaks

to the actions necessary for him to discharge his duty to act in accordance

with professional standards.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10965

dence of Terry’s prior sexual assaults, which Feinstein had

reviewed. Id. Hosley’s lack of awareness of the prior accusa-

tions against Terry was relevant to our assessment of the rea-

sonableness of her actions, although it was not the basis for

finding her qualifiedly immune.

Brown, the building supervisor assigned to the women’s

ward, was found qualifiedly immune because he had assigned

Terry to the women’s ward only after the restriction was lifted

and in light of a staff shortage. Id. We held that Brown could

not have been said to have acted unreasonably. Id.

In sum, we held the lower-level supervisors qualifiedly

immune due to their compliance with hospital regulations and

supervisory guidance and directives (to the extent such direc-

tives were issued), and because their conduct was reasonable

in light of practical considerations. Feinstein was found sub-

ject to liability because, as head of the hospital, he failed to

act to protect the safety of patients through effectively guiding

lower-level supervisors to reduce the safety risk posed by

Terry. Contrary to the dissent’s assertions, there is nothing

contradictory about this resolution.

[7] Youngberg and Neely serve as pre-existing, clearly

established law as to what conduct supports infringement of

the Fourteenth Amendment rights of involuntarily committed

hospital patients. At the time of the alleged events, then, it

was clear that the actions of LaFond and Webster violated the

Constitution if they ran afoul of the objective Youngberg pro-

fessional judgment10 standard as applied in Neely.11

10

Thus, the dissent’s insistence that courts “have no business prescribing

managerial behavior for mental institutions” is more properly directed at

the decision in Youngberg than to our denial of qualified immunity. The

Supreme Court has made it our business to assess whether a public hospi-

tal administrator’s alleged failure to provide safe conditions gives rise to

a constitutional violation under the Youngberg professional judgment stan-

dard. It also made it the business of juries to decide whether the standard

has been violated.

11

The dissent goes to great lengths to unnecessarily obscure Neely’s

10966 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

V.

[8] We now determine whether the facts of this case, as

construed in a light most favorable to Ammons, could be

found to amount to a violation by LaFond or Webster of

Ammons’s constitutional rights. In other words, we must

determine whether the facts alleged, if proved, are sufficient

to support a jury finding that the official’s conduct was “such

a substantial departure from accepted professional judgment,

practice, or standards as to demonstrate that the person

responsible actually did not base the decision on such a judg-

ment.” Youngberg, 457 U.S. at 323. We review the allegations

with respect to LaFond and Webster separately.

A. LaFond

[9] Here, the primary evidence that supports LaFond’s lia-

bility is (1) that she knew that Grant had been previously

investigated for sexual abuse of a female patient yet she

allowed Grant to continue working in a cottage housing

female patients without taking steps to ensure that he was not

given repeated opportunities to be alone with one or more of

analysis and to discredit it as clearly established law. As we have dis-

cussed in this opinion, Neely’s reconciliation of the myriad of legal stan-

dards applied in the context of the Fourteenth Amendment is, to be sure,

complex, but it nonetheless remains consistent with our precedent.

And regardless of this complexity, Neely makes crystal clear its conclu-

sion that Feinstein’s failure to act to ensure Neely’s safety, and his specific

failure to take into account the previous accusations against Terry, support

a violation of the Youngberg standard. This conclusion, at least, serves as

clearly established law. Thus, the opinion’s conclusion with respect to

facts remarkably similar to those here, if not its legal analysis, is undoubt-

edly sufficient to put LaFond on notice as to the contours of her constitu-

tional duty with respect to patient safety. See Anderson, 483 U.S. at 640.

Unlike our dissenting colleague, we do not feel free to simply disregard

Neely based on our own views of the strength of its reasoning. We are

bound by this precedent and will faithfully apply it.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10967

these patients; and (2) that she took no action in spite of

increasing and documented evidence of the inappropriate rela-

tionship between Ammons and Grant.

First, as to the prior accusation made against Grant, the

record reflects that Resident A repeatedly stated that Grant

had touched her inappropriately, but later recanted her allega-

tions when speaking to Dr. Bacon. At no point, however, did

Resident A recant her testimony to outside investigators. That

she recanted to Dr. Bacon in a moment when she was admit-

tedly upset about losing contact with Grant, at the very least,

raises doubts as to CPS’s conclusion that the accusations were

“unfounded.” Despite these facts, of which LaFond was

aware, LaFond permitted Grant to continue working unsuper-

vised with the female patients in their residential cottages, at

times in one-on-one situations.12 LaFond declared that it was

her general practice, when an accusation of staff abuse was

determined unfounded, to instruct the supervisors to watch the

staff member more closely and to counsel him or her about

any high risk behavior. In neither her declarations nor her

deposition testimony, however, does LaFond state that, after

Resident A’s accusation, LaFond instructed Grant’s supervi-

sors to watch him more closely or provided Grant with coun-

seling about any high risk behavior.

Second, the facility that LaFond was charged with oversee-

ing contained overwhelming information and signals that

Grant was pursuing improper relationships with female

patients and with Ammons specifically. Ammons flirted with

Grant so regularly and extensively that CSTC staff frequently

commented on it, both in her files and to Ammons herself. In

12

We note that LaFond’s awareness of the prior accusations of sexual

abuse against Grant speaks to the assessment of whether LaFond acted in

accordance with objective professional standards, that is, to what a reason-

able official would do to ensure the safety of the patients at CSTC. In not-

ing this awareness, we do not imply that subjective awareness of the

particular risk is required to demonstrate a violation. See Part IV.B, supra.

10968 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

fact, Ammons’s file contained 188 references to her improper

interactions with male staff, as well as documentation about

her feelings toward Grant in particular. Ammons and Ramsey

exchanged love letters with Grant, made posters for Grant,

and received pictures of Grant, which they “plastered” on “en-

tire sections on the walls of [their] rooms” where they were

highly visible to any staff member. Notably, Ammons’s foster

mother repeatedly voiced her concerns about the relationship

between Ammons and Grant to CSTC, and specifically asked

that Grant not be permitted to be alone with Ammons.

Ammons points out that CSTC is a small community, and that

LaFond had every opportunity to become aware of the

escalating impropriety between Grant and Ammons, and to

take action accordingly. LaFond apparently failed to take

affirmative steps to inform herself of the situation at CSTC,

even after Rutherford had explicitly warned her about the

staff’s failure to respond appropriately to reports of sexual

impropriety.

[10] We hold that, under these facts, a fact-finder could

determine LaFond’s actions demonstrate a substantial depar-

ture from reasonable professional judgment. LaFond was

aware that Grant was previously accused of sexually molest-

ing a minor female patient. The investigation concluded that

the accusations were unfounded only because the accuser

unreliably recanted. Under Neely, a jury could find that a rea-

sonable administrator, exercising professional judgment with

respect to providing safe conditions, would have taken Resi-

dent A’s allegation into account when assigning and supervis-

ing staff members in cottages where female patients resided.

While LaFond had no cause to discipline Grant, because he

had been exonerated of the molestation charge, she certainly

had reason, in light of her duties with respect to the safety of

her patients, to manage and monitor his duties more carefully.

Instead, LaFond allowed Grant to gain unfettered and

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10969

unmonitored access to the female residents, and to spend time

with them on a one-on-one basis.13

Even more compellingly, LaFond and the rest of the CSTC

staff were practically inundated with signs and indications

that Ammons and Grant were engaged in an inappropriate

relationship. Ammons’s lack of boundaries with male staff,

and her preoccupation with Grant in particular, were well doc-

umented in her files. Her particular relationship with Grant

was evidenced by her behavior and the display on the wall of

her room, so much so that her crush was apparent to other

patients and staff members. LaFond had every reason to mon-

itor the relationship between Grant and Ammons in light of

Rutherford’s warnings and Tienhaara’s repeatedly voiced

concerns.

Regardless of whether LaFond was subjectively aware of

13

We fully acknowledge that Grant was exonerated as an official matter.

This certainly does not mean, however, that, as a practical matter, his one-

on-one seclusion with minor female patients did not in any way pose a risk

to their safety. Indeed, Grant’s subsequent sexual molestation of Ammons,

like Terry’s molestation of Neely, only confirms this. We accordingly rec-

ognize that a jury could conclude that a reasonable hospital administrator,

in performing his or her constitutional duty with regard to patient safety,

would have done more to protect vulnerable female patients.

Contrary to the dissent’s argument, we do not hold that the Due Process

Clause requires hospital administrators to take any action that the law oth-

erwise forbids. We do not even suggest that the administrator must dis-

close previous accusations of sexual misconduct to any other party,

include the accused’s name on any public database, or impose any adverse

consequence as a result of the accusation. Thus, the dissent’s discussion

of various Washington statutes and our holding in Humphries v. County

of Los Angeles, 554 F.3d 1170 (9th Cir. 2009), rev’d in part on other

grounds, 131 S. Ct. 447 (2010), is irrelevant. The dissent also invokes,

puzzlingly, Burlington Northern v. White, 548 U.S. 53 (2006), a Title VII

retaliation case. We do not see how the standard for retaliatory adverse

employment actions in the Title VII context is relevant here. Id. at 66 (not-

ing that “Title VII primarily seeks to protect . . . victims of race-based,

ethnic-based, religion-based, or gender-based discrimination”).

10970 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

these signals, a jury could conclude that a reasonable hospital

administrator in LaFond’s position of authority, knowing of

the previous accusations against Grant and of Rutherford’s

warning, would have taken steps to become aware of what

was happening through a basic review of Ammons’s file or by

simply walking through the facility. A jury could additionally

find that a reasonable hospital administrator, exercising pro-

fessional judgment, would have taken steps to ensure that the

staff who worked closely with Grant appreciated the serious-

ness of the situation and brought these signs to the administra-

tor’s attention so that she could take the necessary steps to

prevent Grant from abusing his position. LaFond should have

at least taken steps to ensure that she was informed of specific

concerns voiced by parents such as Tienhaara so that she

could look into the matter further.14

[11] LaFond “bears the responsibility for taking adequate

steps to ensure that [her] subordinates” maintain the safety of

the patients pursuant to her orders and instructions because,

as the head of CSTC, LaFond “is the one who is ultimately

accountable for the safety of the patients.” Neely, 50 F.3d at

1510. Instead of taking steps to ensure that her subordinates

adequately monitored the relationships between staff and

patients, LaFond took literally no action whatsoever to pre-

vent Grant from engaging in an abusive relationship with

Ammons. Whether because of ignorance or a failure to fully

14

The dissent makes much of the distinction between action and inac-

tion, arguing that there exists an “infinite list of LaFond’s inactions toward

Ammons.” To clarify, because Youngberg makes clear that involuntarily

committed patients have an affirmative right to reasonable conditions of

safety, a state official’s inaction, to the extent that it speaks to his or her

failure to provide such conditions, is precisely what we must evaluate in

applying this standard. See Youngberg, 457 U.S. at 320 (“The question

then is . . . whether the . . . lack of absolute safety is such as to violate due

process.” (emphasis added)).

Because, as the dissent agrees, the record contains no evidence that

LaFond took steps to stay informed of any sexual impropriety between

staff and patients, we construe this deficiency in Ammons’s favor.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10971

appreciate the seriousness of the situation, LaFond allowed

this relationship to go on for months, unchecked and unmoni-

tored, and it was not until Ammons returned to her foster fam-

ily and continued to have contact with Grant that any action

was taken. We hold that, under the facts alleged and pro-

duced, LaFond’s apparent inaction and poor supervision with

respect to the safety of Ammons and the other female patients

support a finding that she failed to exercise professional judg-

ment,15 and thereby violated the Fourteenth Amendment.16

15

The dissent faults us for reaching this conclusion without reciting pre-

cisely the “accepted professional judgment, practice, or standards” for the

administration of residential health facilities for youths. If there existed

such a “golden code” of professional conduct against which to measure

LaFond’s actions, there would be no need for a jury at all, as we judges

could conclusively determine whether LaFond is liable. We accept, as the

dissent repeatedly recognizes, that a conclusive application of the Young-

berg standard will indeed require additional facts, expert testimony, and

a host of other evidence in order to definitively determine what a reason-

able professional would have done, that is, the standard against which to

conclusively measure LaFond’s actions. Youngberg, 457 U.S. at 323 n.31

(noting that expert testimony is relevant to whether a public employee

failed to exercise the requisite professional judgment). This is precisely

the role that a jury plays.

This is also why an award of summary judgment is unwarranted at this

early stage. Ironically, the dissent, like us, cannot articulate the code of

professional conduct for administrators of residential health facilities, and

yet the dissent somehow conclusively determines that, as a matter of law,

LaFond did not depart from any such code. In doing so, the dissent fails

to make all inferences and construe all facts in Ammons’s favor, as we

must.

Finally, the dissent ignores the testimony of multiple experts in the

record before us stating that LaFond’s performance fell well below the

standard of care required by law, policies, procedures, and practice. One

expert reports her professional opinion that the investigation of Resident

A’s accusation, and its resolution within the facility, were grossly inade-

quate. The expert points out that no monitoring or safeguards were put in

place, and Grant was allowed to be alone with female patients for whom

he was not responsible. This expert further notes a number of actions,

taken after Ammons’s molestation came to light, that should have been

taken after Resident A’s accusations. She finds the degree of inaction at

the facility “astounding” and “hard to fathom” in a professional situation,

10972 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

Indeed, we note the similarity between the evidence here

and that in Neely. Like superintendent Feinstein in Neely,

LaFond was aware that allegations of sexual abuse had been

brought against one of the hospital staff. And as in Neely,

these allegations triggered an investigation of the staff mem-

ber that determined that the allegations were not credible. In

both cases, the harm to the plaintiff resulted from the hospital

administrator’s failure to take meaningful steps to prevent the

formerly accused staff member from interacting one-on-one

with female patients. In Neely, we found these facts sufficient

to support a reasonable jury’s determination that Feinstein

failed to exercise professional judgment. The record in this

case presents even more evidence of such a failure on the part

of LaFond, as it additionally supports a claim that LaFond

remained unreasonably ignorant of or ignored the overwhelm-

ing evidence that Grant continued to flagrantly abuse his posi-

tion.17 Whereas Feinstein reprimanded Terry for poor

and she concludes that LaFond was “grossly and extremely negligent.”

We do not agree with the dissent that this testimony “should be afforded

minimal weight.” See Nolan v. Heald College, 551 F.3d 1148, 1154 (9th

Cir. 2009) (it is improper to weigh evidence on summary judgment).

16

In so holding, we hold LaFond accountable with respect to her own

failure to manage and supervise her employees. We do not, as the dissent

suggests, create § 1983 liability on the basis of respondeat superior. It is

well established that a supervisor may be held liable for a constitutional

rights violation based on his or her own neglect in failing to properly

superintend his or her subordinate’s duties. Ashcroft v. Iqbal, 129 S.Ct.

1937, 1948 (2009). In Youngberg itself, the Court held that a failure to

institute appropriate procedures could give rise to liability under the Four-

teenth Amendment. 457 U.S. at 322-23. See also Simmons v. Navajo Co.,

609 F.3d 1011, 1020 (9th Cir. 2010) (“To survive summary judgment, the

[plaintiffs] must therefore adduce evidence that [the supervisors] them-

selves acted or failed to act unconstitutionally, not that some subordinate

did.” (emphasis added)).

17

The dissent chastises us for pointing out this additional factual support

for Ammons’s claim, arguing that no case, not even Neely, supports our

reasoning. We note in response that, under Neely, LaFond’s failure to con-

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10973

judgment and Hosley placed restrictions on Terry’s duties,

LaFond made no changes with respect to managing Grant.

[12] As a final matter, we note that Youngberg articulated

the professional judgment standard as the proper instruction

for the jury; our opinion merely recognizes that the ultimate

decision in this case should likewise go to a jury. Our holding

does not impose liability upon LaFond; nor does it, as the dis-

sent suggests, conclusively prescribe any particular adminis-

trative conduct.18 We hold only that, supposing Ammons’s

allegations are true, a reasonable jury could conclude that

LaFond, like Feinstein, demonstrated “a substantial departure

from accepted professional judgment” that amounts to a viola-

tion of Ammons’s clearly established Fourteenth Amendment

right to safety during her involuntary commitment to a state

sider the previous accusations against Grant alone supports our conclusion

that qualified immunity is unwarranted. Nonetheless, we do not blindly

ignore the additional facts suggesting deficiencies in LaFond’s perfor-

mance. To pretend that these facts have no bearing on the relevant inquiry

— whether a jury could decide in Ammons’s favor — would render us,

as the dissent puts it, “unreflective and naive.”

18

The dissent accuses us of being “unreflective and naive” in this

assessment. While we do not dispute that public officials may, in order to

avoid trials, tailor their behavior to our qualified immunity decisions, we

will not use this as the basis to transform Ammons’s burden in defeating

qualified immunity into her burden in proving her case. The dissent’s

accusation, and indeed its entire position, is premised on a fundamentally

incorrect notion that denial of qualified immunity is equivalent to a con-

clusive determination that the Constitution has been violated. Under such

incorrect logic, we dare not deny qualified immunity unless we are certain

that constitutional liability will be proved.

Our denial of qualified immunity, as that in Neely, however, makes no

prediction as to whether a jury will find in the plaintiff ’s favor. Our deci-

sion simply recognizes that whether LaFond should be absolved of any

wrongdoing is for a jury to decide. Put another way, we hold no more than

that judgment in Ammons’s favor is not legally foreclosed. Whether pub-

lic officials choose to interpret this opinion as something more than this

is entirely up to them.

10974 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

hospital. We must conclude, therefore, that LaFond is not

entitled to qualified immunity.

B. Webster

[13] We next consider whether the facts alleged against

Webster support a Fourteenth Amendment claim against him.

The pertinent facts alleged against Webster are the following.

Webster, as Director of Nursing from January to April 2003,

was “closer” to Ammons while Grant was molesting her than

was LaFond. As CEO at CSTC during the last three weeks of

Ammons’s residence, Webster had access to information

about Ammons, including her intake assessment indicating

that she was particularly vulnerable to sexual abuse. Impor-

tantly, Ammons neither alleges nor introduces any evidence

that, during Ammons’s time at CSTC, Webster knew of the

allegations by Resident A or the subsequent investigation of

Grant.19

[14] We cannot conclude, even taking all of Ammons’s

allegations as true, that a jury could find that Webster demon-

strated a substantial departure from reasonable professional

judgment. He spent approximately eighteen days as CEO of

CSTC during Ammons’s stay, which would not have pro-

vided him with reasonable and sufficient time to become

apprised of, and take meaningful action with respect to, the

situation between Grant and Ammons. Moreover, during his

time as Director of Nursing, there is no indication that he was

aware of the previous allegations against Grant such that a

reasonable professional in his position would have a reason to

closely or personally monitor Grant’s behavior or to alert his

superiors as to any impropriety. As with Hosley, the Director

of Nursing in Neely, the “absence of a sufficiently strong

directive from [LaFond] served to understate, to all staff

19

We reiterate that Webster’s lack of knowledge, while not determina-

tive, is relevant to the application of the Youngberg professional judgment

standard.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10975

members, the risk that [Grant] posed to female patients.” 50

F.3d at 1511. The record contains no indication that Webster

disregarded, remained unreasonably ignorant of, or failed to

exercise reasonable professional judgment with respect to

Ammons’s safety. Therefore, because the alleged facts are

insufficient to maintain a constitutional claim against him,

Webster is entitled to qualified immunity.

VI.

Ammons has alleged the violation of her clearly established

constitutional right to safe conditions during her involuntary

commitment to a state hospital. The contours of this right

have been clearly established by the objective test set forth in

Youngberg and applied to similar facts in Neely. Taking all

the facts in a light most favorable to Ammons, we hold that

the allegations and evidence against LaFond sufficiently sup-

port a constitutional violation that defeats qualified immunity,

while those against Webster do not. The district court’s denial

of summary judgment as to LaFond is AFFIRMED. The dis-

trict court’s denial of summary judgment as to Webster is

REVERSED. The case is REMANDED for further proceed-

ings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

BYBEE, Circuit Judge, concurring in part and dissenting in

part:

In Youngberg v. Romeo, the Supreme Court held that those

involuntarily committed in state-run mental hospitals have

“rights . . . to reasonable conditions of safety.” 457 U.S. 307,

321 (1982). Recognizing that “an institution cannot protect its

residents from all danger of violence,” the Court found that

“the Constitution only requires that the courts make certain

that professional judgment in fact was exercised.” Id. 320-21

10976 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

(citation and quotation marks omitted). Despite the Court’s

instruction that “[i]t is not appropriate for the courts to specify

which of several professionally acceptable choices should

have been made,” id. at 321, the majority embarks on pre-

cisely this quest, defining a new code of conduct for mental

health hospital administrators and casting “professional per-

sonnel . . . [into] the shadow of an action for damages,” id.

at 325.

Not only does the majority author a code of model profes-

sional conduct, it finds its code to be both constitutionally

compelled and clearly established. Indeed, under the majori-

ty’s code:

• “[a] reasonable administrator [must] . . . take

[resident] allegation[s] into account when assign-

ing and supervising staff members in cottages

where female patients reside[ ],” even when those

allegations have been investigated and deter-

mined to be “unfounded,” Maj. Op. at 10968-69;

• administrators must personally undertake “a basic

review of [patients’] file[s]” and monitor

patients’ bedroom decorations on “walk[s]

through the [hospital] facility,” to catch signs of

burgeoning and illicit relationships between

patients and staff, id. at 10970; and

• administrators will be held strictly liable for any

harm caused in part by their employees’ failures

to communicate with them, including a failure to

make administrators aware of “specific concerns

voiced by parents,” id. at 10969-70 (“[A] reason-

able hospital administrator . . . would have taken

steps to ensure that the staff . . . brought [warn-

ing] signs to the administrator’s attention so that

she could take the necessary steps to prevent [an

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10977

employee] from abusing his position.” (emphasis

added)).

These new mandates are unjust, unfounded, and unworkable.

None is required by the Constitution or established by our

cases. For these reasons, I respectfully dissent as to LaFond.1

I

Let’s be clear—neither the majority nor the appellee claims

that LaFond was personally aware of an inappropriate rela-

tionship between Grant and Ammons. In fact, it is undisputed

that LaFond did not have subjective knowledge of Grant’s

improper attentions to Ammons. Therefore LaFond’s liability

—in fact, the court’s ability to entertain a § 1983 suit against

her—only exists if she can be held responsible for the alleg-

edly unconstitutional actions of her subordinates.

A

Fundamental to the principle of qualified immunity is the

notion that an individual will not be held constitutionally

liable—cannot even be subject to suit—for anything but his

own actions that are in violation of clearly established consti-

tutional law. This is because § 1983 liability cannot be estab-

lished solely on a theory of respondeat superior. As the

Supreme Court recently reminded us: “vicarious liability is

inapplicable to . . . § 1983 suits”; “[i]n a § 1983 suit . . . mas-

ters do not answer for the torts of their servants”; and

“[a]bsent vicarious liability, each Government official . . . is

only liable for his or her own misconduct.” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1948-49 (2009). We have long held the

same. See, e.g, Preschooler II v. Clark County Sch. Bd. of

Trs., 479 F.3d 1175, 1183 (9th Cir. 2007); Menotti v. City of

1

I concur in that portion of the majority opinion reversing the denial of

summary judgment as to Webster.

10978 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005); Taylor v. List,

880 F.2d 1040, 1045 (9th Cir. 1989).

The standard necessary to establish a § 1983 violation by

a supervisor is no different than the standard necessary to

establish a § 1983 violation by any other government official:

“a plaintiff must plead that each Government-official defen-

dant, through the official’s own individual actions, has vio-

lated the Constitution.” Iqbal, 129 S. Ct. at 1948 (emphasis

added). For instance, in Iqbal, the Supreme Court held that it

was insufficient for the plaintiff to allege that the supervisor

defendant had “mere knowledge of his subordinate’s discrimi-

natory purpose[.]” Id. at 1949. As the Court explained: “In the

context of determining whether there is a violation of clearly

established right [sic] to overcome qualified immunity, pur-

pose rather than knowledge is required to impose . . . liability

on the subordinate for unconstitutional discrimination; the

same holds true for an official charged with violations arising

from his or her superintendent responsibilities.” Id.

In this case, the constitutional provision at issue is the Due

Process Clause of the Fourteenth Amendment. The Supreme

Court first articulated the standard for proving violations of

the involuntarily committed’s rights to bodily safety in

Youngberg v. Romeo, 457 U.S. 307 (1982). The Court found

that those involuntarily committed in state-run mental hospi-

tals have “rights . . . to reasonable conditions of safety” but

that, to respect those rights, the mental hospital employees

need only exercise “professional judgment.” Id. at 321. The

Court said: “[L]iability may be imposed only when the deci-

sion by the professional is such a substantial departure from

accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base

the decision on such a judgment.” Id. at 323. In other words,

“[T]he Constitution only requires that the courts make certain

that professional judgment in fact was exercised.” Id. at 321

(citation omitted). For this reason, the Youngberg professional

judgment standard is less a “professional judgment” standard

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10979

than it is an “any professional judgment” standard because

exercising any professional judgment will shield a state hospi-

tal professional from § 1983 liability.

The Supreme Court emphasized the latitude that must be

allowed to mental health professionals under the Fourteenth

Amendment by explaining that the Youngberg professional

judgment standard is not an opportunity for lower courts to

play Monday morning quarterback: “It is not appropriate for

the courts to specify which of several professionally accept-

able choices should have been made.” Id. To ensure that

courts would not use the Youngberg professional judgment

standard to categorize as constitutional violations any profes-

sional decision with which they did not agree, the Court

established a presumption in favor of the professionals:

“[D]ecisions made by the appropriate professional are entitled

to a presumption of correctness.” Id. at 324. The Court

explained that a mental health professional deserves this

favorable presumption because, acting alone, she “may have

to make decisions with respect to a number of residents with

widely varying needs and problems in the course of a normal

day. The administrators, and particularly professional per-

sonnel, should not be required to make each decision in the

shadow of an action for damages.” Id. at 324-25 (emphasis

added). The Court clearly did not want state mental health

professionals to act in fear of the lay judgment—pronounced

with great certainty and with all the clarity that hindsight

affords—of the courts. See Ashcroft v. al-Kidd, 563 U.S. ___,

131 S. Ct. 2074, 2085 (2011) (“Qualified immunity gives

government officials breathing room to make reasonable but

mistaken judgments about open legal questions.”). Hence a

professional judgment standard.

B

Applying Iqbal to Youngberg, it is clear that Ammons can-

not establish that LaFond violated her constitutional rights.

For constitutional purposes, “decisions made by [LaFond] are

10980 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

entitled to a presumption of correctness.” Youngberg, 457

U.S. at 324. In order to state a cause of action, Ammons must

allege sufficient facts that LaFond’s own actions toward

Ammons were “such a substantial departure from accepted

professional judgment, practice, or standards as to demon-

strate that [LaFond] actually did not base [her] decision[s] on

such a judgment.” Id. at 323. She has failed to do so. In an

absence of sufficient evidence, we do not leave it to a jury to

offer its own opinion of the administration of the institution—

we find that LaFond wins.

The majority too recites these standards, but it does not

believe them. It gives lipservice to the professional standards

component of Youngberg but then rests its decision entirely

on its own non-professional judgment. The majority dutifully

states that “the judgment of professionals must not depart sub-

stantially from ‘accepted professional judgment, practice, or

standards,’ ” Maj. Op. at 10960 n.5 (quoting Youngberg, 457

U.S. at 323).2 But we will scour the majority opinion in vain

for any evidence of what constitutes “accepted professional

judgment, practice, or standards” in the administration of a

residential mental health facility for youths. There is no evi-

dence that the majority has considered or read any such stan-

dards. Instead, the majority has simply made them up.3 The

2

The majority makes it sound as though Youngberg requires hospital

administrators to act according to professional standards or risk § 1983 lia-

bility. This is not what Youngberg requires. Rather, as the Supreme Court

noted, “the appropriate standard was whether the defendants’ conduct was

such a substantial departure from accepted professional judgment, prac-

tice, or standards in the care and treatment of [patients] as to demonstrate

that the [administrators] did not base their conduct on a professional judg-

ment.” Youngberg, 457 U.S. at 314 (quotation marks omitted) (emphasis

added). The Constitution does not require hospital administrators to toe

some industry-set line. Rather, as per the Supreme Court, the Constitution

allows hospital administrators room to act—even to “depart” from profes-

sional judgment, practice, and standards—as long as those actions do not

so depart that no professional judgment was exercised. See id.

3

As the majority concedes, there is no “such [ ] ‘golden code’ of profes-

sional conduct against which to measure LaFond’s actions.” Maj. Op. at

10971 n.15. I think the majority has simply supplied the missing code; the

majority claims the jury gets to make it up. Either way, there is no such

code of professional judgment; either way, the majority is wrong.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10981

majority has mistaken its own ipse dixit for the judgment of

mental health professionals.4

Even if LaFond violated Ammons’s constitutional right to

Fourteenth Amendment substantive due process, she cannot

be subject to suit for that violation unless the “state of the law

in [2003] gave [LaFond] fair warning that [her] alleged treat-

ment of [Ammons] was unconstitutional.” Hope v. Pelzer,

536 U.S. 730, 741 (2002). If the majority cannot even identify

the professional standards for judging LaFond’s decisions,

how can we begin to think that the law was so “beyond

debate” that LaFond “would have understood that what [s]he

is doing violates that [law]”? al-Kidd, 563 U.S. at ___, 131 S.

Ct. at 2083 (internal quotation and citation omitted). As I

explain in the following sections, it is anything but clear that

LaFond’s decisions violated established law.

II

I observe first that it is difficult to apply the Youngberg

professional judgment standard to LaFond’s actions towards

Ammons because, according to the record, apart from making

general decisions about the facility in which Ammons (and

others) lived, LaFond did not take any actions concerning

Ammons. Therefore, to find LaFond eligible for suit for vio-

lating Ammons’ constitutional rights, we have to find that

LaFond’s inactions toward Ammons were unconstitutional.

Not knowing exactly how to begin analyzing the constitu-

tionality of an infinite list of LaFond’s inactions towards

4

The majority writes: “Ironically, the dissent, like us, cannot articulate

the code of professional conduct for administrators of residential health

facilities, and yet the dissent somehow conclusively determines that, as a

matter of law, LaFond did not depart from any such code.” Maj. Op. at

10971 n.15. The absence of a professional standard means that LaFond

prevails—that is precisely what it means that “decisions made by

[LaFond] are entitled to a presumption of correctness.” Youngberg, 457

U.S. at 324.

10982 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

Ammons, I turn to the majority opinion.5 Sifting through its

analysis, it becomes clear that the majority identified three of

LaFond’s inactions as unconstitutional: (1) LaFond failed to

“take[ ] . . . into account” the past allegations against Grant

when she “assign[ed] and supervis[ed] staff members,” Maj.

Op. at 10968; (2) LaFond failed to personally review each

patient’s file, in an effort to “become aware of the escalating

impropriety between” employees and patients, id.; and (3)

LaFond failed to ensure that she was informed “of specific

concerns voiced by parents,” id. at 10970. These “failures”

deserve close inspection, both because LaFond will now have

to endure the personal and financial costs of a trial because of

them and because they are now statements of constitutional

law, applicable to all mental health administrators in the Ninth

Circuit.6 I discuss each failing in turn.

5

I do not mean to imply that a state official’s inactions could never lead

to liability under § 1983. See Maj. Op. at 10970 n.14. I merely mean to

point out that, without any references to professional standards or norms

to guide its analysis, the majority’s list of LaFond’s apparently unconstitu-

tional inactions reads like legal grapeshot.

6

The majority’s assertion that, in finding LaFond not protected by quali-

fied immunity, it has not “conclusively prescribe[d] any particular admin-

istrative conduct,” Maj. Op. at 10973, is unreflective and naive. As the

Supreme Court recently reminded us, rulings in qualified immunity cases

“have a significant future effect on the conduct of public officials . . . and

the policies of the government units to which they belong.” Camreta v.

Greene, 563 U.S. ___, 131 S. Ct. 2020, 2030 (2011). Such impact on

future behavior is not an unintended consequence: “[T]hey are rulings

self-consciously designed to produce this effect by establishing controlling

law and preventing invocations of immunity in later cases.” Id.

Accordingly, courts routinely require state officials to act in accordance

with the statements of constitutional law spelled out in previous appellate

opinions denying qualified immunity. In fact, the majority’s opinion here

is such a case. According to the majority’s own analysis, without Neely v.

Feinstein, 50 F.3d 1502 (9th Cir. 1995), LaFond would be free from liabil-

ity. See Maj. Op. at 10965. Because of Neely, she goes to trial. In the

future, mental health professionals can ignore Ammons at their peril. The

consequences of the majority’s ruling here could hardly be more certain.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10983

A

The majority identifies LaFond’s disregard of the past alle-

gations against Grant as her first constitutional failure. As the

majority explains, “LaFond was aware that Grant previously

had been accused of sexually molesting a minor female

patient. . . . A reasonable administrator, exercising profes-

sional judgment with respect to providing safe conditions,

would have taken Resident A’s allegation into account when

assigning and supervising staff members in cottages where

female patients resided.” Maj. Op. at 10968-69 (emphasis

added).

First, let me point out that this is an incorrect application

of the Youngberg professional judgment standard. If the

majority had been properly applying the professional judg-

ment standard, the majority would have asked if LaFond’s

decision to make employment assignments irrespective of

allegations that, two years earlier, had been determined to be

unfounded was a decision based on her professional judg-

ment. Youngberg, 457 U.S. at 321 (“[T]he Constitution only

requires that the courts make certain that professional judg-

ment in fact was exercised.” (citation omitted)). In the

absence of clear contrary evidence, the majority should have

held that LaFond’s decision not to indefinitely consider the

unfounded allegations against Grant was “presumptively

valid.” Id. at 323.

The majority did neither of these things. Instead, the major-

ity concluded that “any reasonable administrator” would have

considered the unfounded allegations against Grant—or any

unfounded but serious allegations made against any employee

—in perpetuity. I couldn’t disagree more. It is not at all clear

to me that “any reasonable administrator” would—or should

—take into account allegations against an employee when

making assignments concerning that employee, especially

when those allegations are “unfounded.” Nor is it clear that an

10984 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

administrator even could make decisions about an employee

based on unfounded allegations against that employee.

In this case, LaFond handled the first set of allegations

against Grant exactly as she was required to do. Washington

State law requires that “any . . . employee of the department

[of social and health services] . . .[who] has reasonable cause

to believe that a child has suffered abuse . . . shall report such

incident, or cause a report to be made, to the proper law

enforcement agency or to the department [of social and health

services].” Wash. Rev. Code 26.44.030(1)(a) (emphasis

added). As the CEO of the Child Study and Treatment Center

(“CSTC”), LaFond was an employee of the Washington State

Department of Social and Health Services (“DSHS”), and she

was responsible for other employees under the same obliga-

tion. When Resident A came forward with allegations that

Grant had sexually abused her, her allegations were promptly

reported to Child Protective Services (“CPS”), as is required

by Wash. Rev. Code 26.44.030(1)(a). At that point, CPS con-

ducted its own investigation, during which time, LaFond

ordered that Grant not have contact with female residents.

LaFond did not interfere with the investigation, but let CPS

interview the victim, witnesses, and the victim’s psychologist.

After those interviews, LaFond was told by Resident A’s

treating psychologist that she had recanted her allegations

against Grant, and LaFond passed that information on to CPS.

Notably, CPS did not immediately close its investigation;

instead, it interviewed Grant. Only then did it close the inves-

tigation and conclude that the allegations were “unfounded”

because “it would have been extremely unlikely that they

could have occurred as stated.”7

7

The majority makes much of the fact that LaFond knew that Resident

A did not personally recant her allegations to CPS. See Maj. Op. at 10967.

But CPS itself knew that Resident A did not personally recant her allega-

tions to CPS, decided still to interview Grant, and then closed the case

because the allegations were unfounded. LaFond is entitled to rely on

CPS’s professional judgment about when investigations are closed and

allegations unfounded. While it might be understandable if LaFond still

had some question about Grant even after the close of the investigation,

it cannot be the case that the Constitution requires that she harbor such

suspicions, much less that she take action against him.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10985

Once CPS closed its investigation and formally cleared

Grant, LaFond did not consider Resident A’s unfounded alle-

gations in making employment decisions about Grant.

Although this is beside the point—because the Youngberg

standard does not call for a reasonableness analysis—this

seems reasonable to me. LaFond was not required to continue

to consider the unfounded allegations against Grant by any

Washington state law, regulation, or procedure. I can’t see

why LaFond is liable under the Due Process Clause of the

Fourteenth Amendment for acting consistently with state law.

See Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th

Cir. 1994).

Nor, in fact, might LaFond have been allowed to consider

unfounded allegations against Grant, as doing so might have

violated Washington State’s complicated government

employment scheme, which includes at least (1) a Fourteenth

Amendment due process property right in some civil service

employment and the attendant constitutional protections, see

Fuller v. Employment Sec. Dep’t of the State of Wash., 762

P.2d 367 (Wash. Ct. App. 1988); (2) a statute requiring the

destruction of “information relating to employee misconduct

or alleged misconduct” in situations where “such information

[was] determined to be false” or “where the employee has

been fully exonerated of wrongdoing,” Wash. Rev. Code

41.06.450(1)(a); and (3) collective bargaining agreements that

may place limits on CSTC administrators’ ability to discipline

psychiatric child care counselors. If the majority is correct,

the Due Process Clause required LaFond to do what she was

forbidden to do by Washington law.8

8

The majority responds to this point by saying, “We do not . . . suggest

that the administrator must disclose previous accusations of sexual mis-

conduct to any other party, include the accused’s name on any public data-

base, or impose any adverse consequence as a result of the accusation.”

Maj. Op. at 10969 n.13. If we accept this rebuttal, then we have accepted

a reality in which hospital administrators may have to keep lists of individ-

uals against whom unfounded accusations were made—so as to closely

monitor the employees’ future interactions with patients (as required by

this majority)—but that, to comply with (at least Washington) state law,

those lists might have to remain secret and unwritten. The majority is

either blind to or comfortable with this future. I am not.

10986 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

We on the Ninth Circuit are well aware of the perils and

heartache that can come when individuals are dogged by

accusations from which they have been cleared. In Humphries

v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2009),

reversed in part on other grounds by 131 S. Ct. 447 (2010),

we recognized that this kind of unshakable pursuit by past

false accusations can be a “nightmare.” Id. at 1180. The facts

of Humphries bring this nightmare to life. The Humphries

were parents falsely accused of abuse by a rebellious child,

triggering their arrests and the removal of their remaining

children. Id. at 1175. After the state dismissed the criminal

case against them, the Humphries petitioned for further relief,

and the criminal court found them “factually innocent” of the

charges and ordered the arrest records sealed and destroyed.

Id. The juvenile court likewise dismissed as “not true” all

counts of the dependency petition against them. Id. The Hum-

phries thought they’d been cleared. But despite their efforts,

and pursuant to state law, their names were listed in a state

database of “known or suspected child abusers,” which a wide

variety of organizations—including government agencies,

employers, law enforcement entities, and other public and pri-

vate groups—either had access to or, in some cases, were

required to consult. Id. at 1175-76 (emphasis added). The

Humphries tried to have their names removed from the data-

base, but no such procedure existed in California, so they sued

in the federal courts, claiming that maintenance of the state

database violated the Due Process Clause of the Fourteenth

Amendment because “identified individuals are not given a

fair opportunity to challenge the allegations against them.” Id.

at 1176. We held that they were right—their inability to chal-

lenge their listing in the database “violate[d] the[ir] proce-

dural due process rights,” id. at 1202, in part because “there

is a great human cost . . . to being falsely accused of being a

child abuser,” which should prompt us to “protect[ ] . . . citi-

zens against such calumny” ”with the same passion that [we]

condemn[ ] the child abuser for his atrocious acts,” id. at

1194.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10987

In light of our decision in Humphries, it is more than ironic

—it is plainly inconsistent—that we would hold that the Due

Process Clause requires that state hospital administrators do

what we have previously held the Due Process Clause prohib-

its state actors from doing. Compare id. at 1193 (“the Humph-

ries have an interest in not being stigmatized . . . if they have

not committed the acts underlying the reports . . . . [T]hey

have an interest in pursuing employment . . . and securing the

appropriate licenses for working with children without having

to be subject to an additional investigation, delays, and possi-

ble denial of a benefit. . . .”) with Maj. Op. at 10968 (“While

LaFond had no cause to discipline Grant, because he had been

exonerated of the molestation charge, she certainly had rea-

son, in light of her duties with respect to the safety of her

patients, to manage and monitor his duties more carefully.”

(emphases added)); id. n.13 (“We fully acknowledge that

Grant was exonerated as an official matter . . . [but] a reason-

able hospital administrator . . . would have done more to pro-

tect vulnerable female patients.”).9 Viewed in this light, the

majority opinion, which mandates that state hospital adminis-

trators always remember and never forget even unfounded

allegations against hospital employees, is not only unreason-

able, it is manifestly unjust and inconsistent with our decision

in Humphries.10

9

The majority’s confident constitutional pronouncements are all the

more remarkable for the fact that we do not know any of the actors here:

We do not know the CPS investigators, their reputation and methods;

LaFond and her staff; or Grant. Yet we have no difficulty finding that

LaFond relying on CPS’s professional judgment was a substantial depar-

ture from her own accepted professional judgment.

10

I am unpersuaded by the majority’s point that Humphries is not impli-

cated because the majority is not requiring hospital administrators to “in-

clude the accused’s name on any public database, or impose any adverse

consequence as a result of the accusation.” Maj. Op. at 10969 n.13. It is

not at all clear to me that assigning Grant to a different ward—what the

majority is requiring, see id. at 10966-67—would not have been an

adverse employment action, for which LaFond might have opened herself

to suit. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71

(2006) (finding that reassignment of duties, even to a position with the

same job description, can be “materially adverse”); Humphries, 554 F.3d

at 1201-02.

10988 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

B

According to the majority, LaFond’s second unconstitu-

tional inaction was her failure to “take[ ] steps to become

aware of” the signs of Grant’s inappropriate attentions to

Ammons “through a basic review of Ammons’s file or by

simply walking through the facility.” Maj. Op. at 10970. In so

holding, the majority again erred by not applying Young-

berg’s professional judgment standard or the Youngberg pre-

sumption in favor of LaFond.

Instead, the majority pulled this constitutional responsibil-

ity out of its hat. How can it say, without precedent or evi-

dence or expert testimony or support of any kind, that the

Constitution requires that LaFond have looked personally at

Ammons’s file? Or personally walk through the cottage into

Ammons’s room to observe her wall decorations? Notably,

the majority does not cite to any case, statute, DSHS regula-

tion, CSTC policy or custom, or industry expectation that

LaFond personally review patient files or monitor patient

room decor. Nor does the majority explain how, in the future,

mental health administrators should know which patients’

files they are constitutionally compelled to review personally

or which halls the Fourteenth Amendment requires them to

walk. Such vigilance might be routine protocol in one facility,

extraordinarily conscientious administration in another facil-

ity, and simply impracticable in yet a different facility. Noth-

ing in Youngberg tells us how to make such choices, only that

administrators must be presumed to have made a professional

judgment, and they are liable only if they exercise no judg-

ment at all. Youngberg does not appoint us to serve as the

Board of Supervisors for Washington’s mental health facili-

ties, with the power to hire, fire, promote, or discipline its

administrators. Yet the majority’s new standard would

empower us to evaluate—in extraordinary detail and post hoc

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10989

—the performance of such administrators, all in the name of

the Due Process Clause.11

This case demonstrates the complexity of the majority’s

new code of professional conduct. As the majority notes,

CSTC is a “small” community, see Maj. Op. at 10968, hous-

ing a maximum of sixty-four residents, but to serve these resi-

dents, CSTC has a complicated and multilayered

organizational structure. Although the record does not contain

a complete account of CSTC’s chain of command, we do

have a glimpse of what practically it would mean for LaFond

to be required to personally monitor and supervise each staff

member and patient. CSTC contains three cottages; each cot-

tage has at least one supervisor, one registered nurse, one psy-

chiatric social worker, and one psychologist. Each cottage is

divided into four “pods”; each pod has at least one residential

counselor on staff twenty-four hours a day and recreation

therapy staff on site during daytime and early evening hours.

As far as we know, this makes LaFond ultimately responsible

11

Bereft of any standard against which to judge LaFond’s professional

judgment, the majority relies on the reports of two purported “experts” for

support that LaFond’s conduct fell below the standard of care for hospital

administrators. Maj. Op. at 10971 n.15. But it does not appear from the

record that the authors of these reports were ever qualified to opine on the

standard of care required of hospital administrators. Rather, the record

suggests that the authors are unqualified to evaluate LaFond’s professional

judgment as neither has studied hospital administration or has worked as

a hospital administrator. As such, their unqualified opinions on LaFond’s

conduct should be afforded minimal weight.

Even if the witnesses were qualified, their reports are conclusory and do

nothing to illuminate how, if at all, LaFond departed from the standard of

care. They contain no discussion of industry standards, and no discussion

—other than what we all can see through hindsight—of what LaFond

should have done differently. See, e.g., Report of Katherine A. Kent at 7

(“hospital administrators, including Ms. LaFond and Mr. Webster, failed

to take any meaningful precautions to protect [Ammons]”); Report of Jane

W. Ramon at 10 (“Mary LaFond and Norm Webster[ ] were grossly and

extremely negligent in allowing a sexual relationship to develop between

patient [Ammons] . . . and adult male staff”).

10990 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

for at least thirteen supervisors—four at each of three cottages

and CSTC’s director of nursing—and approximately thirty-six

residential counselors.

According to the cottage psychologist supervising

Ammons’s care, this staffing structure meant that any patient-

related concerns would be reported by the residential counsel-

ors to the cottage supervisor, “up through the chain of com-

mand” to CSTC’s director of nursing, and then to LaFond,

making LaFond three levels removed from the supervision of

Grant, a residential counselor, and four levels removed from

the direct care of Ammons.

The majority’s failure to acknowledge the organizational

complexity at a “small” institution like CSTC is just one indi-

cation that it has not thought through the impracticable and

burdensome implications its holding will have for the heads

of state-run mental health hospitals, including ones possibly

larger than CSTC. See Youngberg, 457 U.S. at 322-23 (“there

certainly is no reason to think judges or juries are better quali-

fied than appropriate professionals in making such deci-

sions”). We have no business prescribing managerial behavior

for mental institutions. Clearly, the majority is out of its depth

and wrong in so doing.

C

The third of LaFond’s so-called constitutional errors was

her failure to ensure that her employees did their jobs. The

majority casts this failure in two ways: (1) “a reasonable hos-

pital administrator, exercising professional judgment, would

have taken steps to ensure that the staff who worked closely

with Grant appreciated the seriousness of the situation and

brought these signs to her attention so that she could take the

necessary steps to prevent Grant from abusing his position,”

Maj. Op. at 10970; and (2) “LaFond should have at least

taken steps to ensure that she was informed of specific con-

cerns voiced by parents such as [Ammons’s foster mother] so

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10991

that she could look into the matter further,” id. at 10970. I am

not even sure how to respond to such ad hoc constitutional

pronouncements.

The majority neither suggests nor cites to anything in the

record that indicates what LaFond should have done to “en-

sure” that her subordinates reported more faithfully to her.

Certainly if LaFond’s subordinates had concerns that

Ammons was being abused, as employees of DSHS, they, like

she, were under a statutory obligation to report that abuse to

the proper authority, which may have been LaFond, CPS, or

law enforcement, or all three. See Wash. Rev. Code

26.44.030(1)(a). Their failures to apprise LaFond of whatever

warning signs may have been visible to them were their own

failures and not LaFond’s.

Further, contrary to the majority’s assertion, there is no

indication in the record that LaFond did not “take[ ] steps to

ensure that she was informed of specific concerns voiced by

parents.” Maj. Op. at 10970. The record does not include a

comprehensive account of what instruction or training

LaFond offered to her employees. We know that, according

to LaFond, “[i]t was [her] practice, whenever an allegation of

abuse was made which was determined to be unfounded, that

[she] would direct supervisors to educate and counsel staff

about any high risk behavior on their part, and watch the per-

son accused closely for a period of time.” In the context of

this practice, it is meaningful, then, that “[n]othing negative

was ever reported to [LaFond] concerning Mr. Grant after [the

first] incident was investigated.”12

12

I should not need to make a counterargument at this level of factual

granularity. See al-Kidd, 563 U.S. at ___, 131 S. Ct. at 2084 (“We have

repeatedly told courts—and the Ninth Circuit in particular—not to define

clearly established law at a high level of generality.” (internal citations

omitted)). The majority has cited no cases for the proposition that the Due

Process Clause requires LaFond to specifically instruct her employees to

report parent concerns to her. None. The majority does not even argue that

10992 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

Without any evidence that LaFond ignored her subordi-

nates’ warnings or that she did not exercise professional judg-

ment in her supervision of her employees, LaFond cannot be

held constitutionally liable for her subordinates’ failures.13

The majority’s contrary holding amounts to constitutional lia-

bility based on respondeat superior, and we know that § 1983

liability cannot rest on respondeat superior. See Iqbal, 129 S.

Ct. at 1948; Preschooler II, 479 F.3d at 1183. At least, it

couldn’t before today.

III

I strongly disagree with the majority that LaFond’s inac-

tions violated Ammons’s constitutional rights, but I abso-

lutely disagree that it was so obvious to LaFond that she was

violating the Constitution by not doing what she was not

doing. See al-Kidd, 131 S. Ct. at 2083 (the contours of the

constitutional right at issue must be “sufficiently clear that

every reasonable official would have understood that what he

is doing violates that right”) (citation and quotations omitted)

(emphasis added)). As discussed above, it is not clear to me

even now that LaFond violated the Constitution. How then

was she supposed to have known that she was violating the

Constitution? Certainly not by reading Youngberg. LaFond is

thus entitled to qualified immunity.

For the majority, Neely v. Feinstein, 50 F.3d 1502 (9th Cir.

Neely holds this. In light of the absence of case law imposing on LaFond

such a requirement, I should not need to point out, as I have, that there is

no indication in the record that LaFond did not instruct her employees to

report parent concerns. But the majority rests its denial of qualified

immunity—and exposes LaFond to potential liability—at least in part on

this spurious argument.

13

The majority argues that at least one employee warned LaFond about

“improper clinical staff handling of reported sexual incidents in the resi-

dent cottages.” Maj. Op. at 10952. But those warnings concerned patient-

to-patient sexual impropriety, not staff-to-patient sexual abuse.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10993

1995), is the answer: “Youngberg and Neely serve as pre-

existing, clearly established law as to what conduct supports

infringement of the Fourteenth Amendment rights of involun-

tarily committed hospital patients.” Maj. Op. at 10965. In

other words, because of Neely, it should have been clear to

LaFond that she “violated the Constitution if [she] ran afoul

of the objective Youngberg professional judgment standard as

applied in Neely.” Id. at 10965.

But Neely is anything but clear. In Neely, we addressed the

question of qualified immunity for four employees of a state-

run psychiatric center: Stephen Feinstein, the hospital superin-

tendent; Linda Murgo, the chair of a staff committee con-

vened to investigate the charges of abuse by Jess Terry, an

employee, against Cathy Neely, a patient; Cecilia Hosley, the

hospital’s director of nursing; and John Brown, a building

supervisor, responsible for assigning staff to the various hos-

pital wards. All of these defendants were supervisors over

Terry, and each of these defendants was either aware of the

previous allegations against Terry or aware of the restrictions

against him working one-on-one with female patients. Despite

these similarities, we found qualified immunity for all of the

defendants but Feinstein. We found qualified immunity for

Murgo because her investigation of Terry comported with the

hospital’s regulations. Id. at 1511. We found qualified immu-

nity for Director Hosley because the record did not indicate

that her actions—her failure to put in writing the restrictions

on Terry and her decision to replace the absolute restriction

against Terry working with female patients with a restriction

against him working with them one-on-one—were violations

of a “strong directive” from her superiors. Id. And we found

qualified immunity for Supervisor Brown because, despite his

decision to assign Terry to work with females when previ-

ously he’d been prevented from doing so, “we [could not] say

that he acted unreasonably when faced with a staff shortage.”

Id. But for Feinstein, we did not find qualified immunity

because “a reasonable hospital official would have done much

10994 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

more to eliminate the risk that Terry would sexually abuse

female patients under the hospital’s care.” Id. at 1509.

These discursive and contradictory analyses are more than

“complex,” Maj. Op. at 10966 n.11; they do not make sense.

What cleared three of the defendants from liability—

compliance with hospital regulations, compliance with supe-

rior directives (if any), and reasonableness in light of

practicalities—could have cleared Feinstein, if we had but

analyzed his actions with those standards of scrutiny. There

is no indication that any of Feinstein’s actions were violations

of hospital regulations or that his decision to reprimand Terry,

once cleared, but to not do “much more” was not reasonable

in light of hospital practicalities.14 Yet Feinstein was subject

to suit and liability, and the other supervisors were not. Even

if she had read Neely, LaFond would not have clearly known

that she could be liable like Feinstein and not protected by

qualified immunity as were Murgo, Hosley, and Brown.

And even within the Feinstein-related analysis, our legal

standards contradict. In determining the question of Fein-

stein’s qualified immunity, we simultaneously applied three

different standards to the question of hospital administrator

liability: the Youngberg professional judgment standard and

a “conscious indifference amounting to gross negligence”

standard and an objective “deliberate indifference.” We did

this by importing the “conscious indifference” standard from

Estate of Conners by Meredith v. O’Connor, 846 F.2d 1205,

1208 (9th Cir. 1988), which, as the majority notes, was the

origin for equating the Youngberg standard with “conscious

indifference.” See Maj. Op. at 10962. Then we noted that

“[a]lthough the Conners opinion used the term ‘conscious

14

Frankly, I have no idea what “much more” means in this context. Nor

does Neely suggest anything “more” Feinstein could have done. This

would be merely an intellectual lacuna, a mere judicial low point, except

that now, the majority throws LaFond down that hole, which we made and

did not fill.

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10995

indifference,’ both parties [in Neely] used the term ‘deliberate

indifference.’ ” 50 F.3d at 1507. We then explained the origin

of “deliberate indifference” and its importation from Eighth

Amendment to Fourteenth Amendment jurisprudence, but we

did not reject—as we should have—the parties’ proposition

that “deliberate indifference” was equivalent to “conscious

indifference,” which we had earlier said was equivalent to the

Youngberg professional standard.15

After confusing the standard we were actually applying—

by casting the Youngberg professional judgment standard in

any name but its own—we raised a squall about whether any

of the three standards require subjective awareness. No, we

said, they do not. Neely, 50 F.3d at 1508 (“[T]he Youngberg

professional judgment standard is necessarily an objective

test.”); (“[O]ur Fourteenth Amendment jurisprudence has

never required officials to have a subjective awareness of the

15

The Supreme Court rejected the “deliberate indifference” standard

when it adopted the professional judgment standard in Youngberg. 457

U.S. at 312 n.11. Accordingly, we should have rejected that standard in

Neely and not ambiguously entertained it, as we did. In fact, Neely relies

on our decision in Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986)

for the proposition that “state officials” with “more than a mere suspicion

that an attack will occur,” Neely, 50 F.3d at 1508, “must take steps to pro-

tect prisoners from the threat of serious harm or injury by other prisoners”

id. (quoting in part Berg, 794 F.2d at 459 (emphasis in original)). Neely

reasoned that Berg and other cases “amply demonstrate that . . . in the face

of known threats to patient safety, state officials may not act (or fail to act)

with conscious indifference, but must take adequate steps in accordance

with professional standards to prevent harm from occurring.” Neely, 50

F.3d at 1508. As such, Neely incorporated the Berg rule. But the rule Berg

articulated (and Neely quoted) was the standard for “deliberate indiffer-

ence,” not the professional judgment standard. See Berg, 794 F.2d at 459

(“The ‘deliberate indifference’ standard requires . . . [an official] have

more than a mere suspicion that an attack will occur” (citation and quota-

tions omitted)); see also Redman v. County of San Diego, 942 F.2d 1435,

1442 (9th Cir. 1991) (“The Berg court . . . defined what ‘deliberate indif-

ference’ means in this circuit” (citing Berg)). Neely’s citation to and adop-

tion of Berg therefore operated to import the “deliberate indifference”

standard into what should have been a professional-judgment analysis.

10996 AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH

risk of harm in order to be deemed ‘deliberately indiffer-

ent’ ”). Unfortunately, we then appear to have contradicted

ourselves by stating that “in the face of known threats to

patient safety, state officials may not act (or fail to act) with

conscious indifference, but must take adequate steps in accor-

dance with professional standards to prevent harm from

occurring.” Id. (emphasis added). And then, to compound the

problem, we held that one of the defendants in Neely was cov-

ered by qualified immunity expressly because she did not

have subjective awareness of the risk of threat. Id. at 1511

(“[T]here is nothing in the record to establish that Hosley was

personally apprised of the same evidence of Terry’s prior sex-

ual assaults that Feinstein reviewed.”).

In other words, in Neely, we applied different levels of

scrutiny to each of the four supervisor-defendants; we errone-

ously conflated two disparate standards with the Youngberg

professional judgment standard; we contradicted ourselves on

whether the proper standard required subjective awareness for

a constitutional violation; and we contradictorily held that one

supervisor-defendant was liable for risks he was not aware of

but that another supervisor-defendant was not liable for risks

of which she was not “personally apprised.” Id. Read faith-

fully, Neely does not serve to clearly establish anything and

cannot be “faithfully appl[ied].” Maj. Op. 10966 n.11.16

16

I am not the first to point out the ambiguity in Neely’s discussion of

the applicable legal standard. In L.W. v. Grubbs, 92 F.3d 894 (9th Cir.

1996), we rejected the argument that Neely established “ ‘conscious indif-

ference amounting to gross negligence’ ” as the standard for § 1983 liabil-

ity. Id. at 897 (citing Neely, 50 F.3d at 1508 (internal quotations and

citation omitted)). Neely, we explained, “was predicated on our reasoning

in the first Wood v. Ostrander opinion that we later amended,” id., the

amendment of which “[t]he Neely panel should have been well aware.” Id.

at 897 n.3. When we amended Wood, we “step[ped] back from espousing

gross negligence as the proper standard.” Id. But the Neely panel

“[s]omehow . . . omitted that from their decision.” Id. For this reason, the

“[Neely] language . . . is either incorrect to the extent that it approves the

gross negligence standard, or it must be limited to the claims of inmate

AMMONS v. WASHINGTON DEP’T OF SOCIAL AND HEALTH 10997

Unlike the majority, I do not see how Neely was sufficient

to put LaFond on notice that she should have treated Grant or

Ammons differently. In my opinion, Neely was not even cor-

rect. That aside, whatever Neely stands for, it does not

“make[ ] crystal clear,” id., that by not indefinitely consider-

ing unfounded accusations against employees, by not person-

ally reviewing Ammons’s file, and by not “ensuring” that her

employees fulfilled their statutory obligations to report con-

cerns of sexual abuse—concerns of which she was not aware

—LaFond should have known that she was violating the Con-

stitution. At the least, we should have granted qualified

immunity to LaFond.

IV

For the reasons I have explained, I would hold that LaFond

did not violate the Due Process Clause. In any event, I would

find LaFond covered by qualified immunity. I respectfully

dissent from that portion of the judgment and the majority

opinion. For similar reasons, I agree that Webster is so pro-

tected, and I concur in that part of the majority’s opinion and

judgment.

plaintiffs injured because of a miscarriage of the ‘professional judgment

of a [government] hospital official’ in the context of a captive plaintiff.”

Id. at 897. If we are not sure of the scope of Neely liability, it is unreason-

able to assume LaFond would know better how Neely applies. See id. at

898 (“It is little wonder that our district courts have found difficulty in

navigating Section 1983 damage claims waters.”).