Campbell v. STATE OF WASHINGTON DSHS

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORAINE CAMPBELL, individually 

and as Personal Representative of

the estate of Justine Booth,

Plaintiff-Appellant,

v.

STATE OF WASHINGTON DEPARTMENT

OF SOCIAL AND HEALTH SERVICES, No. 09-35892

Defendant,

and  D.C. No.

2:08-cv-00983-JCC

LASHONDA MARIE MITCHELL, OPINION

individually and in her official

capacity acting under the color of

state law; MURINE LEE MCGENTRY,

individually and in her official

capacity acting under the color of

state law; SONJA PATE,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Senior District Judge, Presiding

Argued and Submitted

November 5, 2010—Seattle, Washington

Filed November 7, 2011

20023

20024 CAMPBELL v. STATE OF WASHINGTON

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

and Claudia Wilken, District Judge.*

Opinion by Judge Bybee;

Dissent by Judge B. Fletcher

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

Northern District of California, sitting by designation.

20026 CAMPBELL v. STATE OF WASHINGTON

COUNSEL

Shayne Christopher Stevenson and David P. Moody, Hagens

Berman Sobol Shapiro, Seattle, Washington, for the appellant.

CAMPBELL v. STATE OF WASHINGTON 20027

Stewart A. Estes, Keating, Bucklin & McCormack, Seattle,

Washington, Andrew Logerwell, Assistant Attorney General,

Office of the Attorney General, Olympia, Washington, for the

appellees.

OPINION

BYBEE, Circuit Judge:

Plaintiff Loraine Campbell appeals the district court’s grant

of summary judgment in favor of Defendants Sonja Pate,

Lashonda Mitchell, and Murine McGenty,1 employees of the

State of Washington’s State Operated Living Alternative

(“SOLA”) program. Defendants were responsible for the care

of Campbell’s 33-year-old developmentally delayed daughter,

Justine Booth, at the time Justine was found unconscious in

her bathtub. Justine died one week later. Campbell sued

Defendants on behalf of herself and Justine’s estate under 42

U.S.C. § 1983, alleging that Defendants deprived Justine of

her Fourteenth Amendment substantive due process right to

safe physical conditions while in involuntary state custody.2

The district court concluded that Campbell did not present

a genuine issue of material fact as to her § 1983 claim because

she did not proffer evidence that the state owed Justine an

affirmative duty of care. The district court also held that

Defendants were protected by qualified immunity. We like-

wise hold that Defendants had no constitutionally required

duty of care towards Justine because (1) there was no special

relationship between Justine and the state and (2) there was no

state-created danger, and we affirm.

1

Although Campbell spelled Defendant McGenty’s name as

“McGentry” in the case caption, it is spelled “McGenty.”

2

Campbell also sued for negligence and violations of a state statute,

which claims are not relevant here.

20028 CAMPBELL v. STATE OF WASHINGTON

I

The circumstances of Justine’s life, disability, and SOLA

placement are relevant to our analysis, as are the final events

leading up to her tragic accident and subsequent death.

Accordingly, we discuss these facts in detail below.

A

At the time of Justine’s death, she was a 33-year-old

woman with a diagnosed severe seizure disorder and signifi-

cant cognitive disability. According to Justine’s neurologist,

she had an IQ of 59, ranking her below the first percentile of

the population.

Justine was a ward of the court previous to her eighteenth

birthday. Because of her parents’ drug and legal problems, as

a child Justine lived variously with her mother, her natural

father, and her stepmother; in foster care; and in state institu-

tions. In 1987, at the age of fourteen, Justine was admitted to

a school run by Washington State’s Department of Social and

Health Services (“DSHS”). Around Justine’s eighteenth birth-

day, Loraine Campbell, Justine’s birth mother, filed for and

received legal guardianship over “the Person and Estate” of

Justine, as ordered by the King County Superior Court.

Justine was enrolled in SOLA in 1990. Campbell and Jus-

tine requested the placement, which DSHS approved. Camp-

bell testified that she and Justine chose SOLA so Justine

could live a “somewhat independent, normal life” and “do as

much as she could.” Upon Justine’s enrollment in SOLA,

Campbell received a letter from DSHS thanking Justine for

“deciding to participate in our program.” The letter informed

Campbell and Justine that Justine’s “participation in the DDD

Region 4 — State Operated Living Alternatives (SOLA) is

voluntary, and that you may withdraw your request for ser-

vices at any time by contacting our Field Services Office

(FSO) Case Manager.”

CAMPBELL v. STATE OF WASHINGTON 20029

In 1995, the King County Superior Court ordered Camp-

bell’s “guardianship [to be] terminated as to [Justine’s] estate”

because Campbell had failed to “properly complete the

estate.” Campbell claims that after December 1995, she

stopped receiving Justine’s SOLA-related paperwork from

Justine’s SOLA caregivers. Campbell further claims that after

her estate guardianship was terminated, she no longer had the

authority to terminate Justine’s participation in SOLA. The

record indicates that Campbell authorized SOLA to “seek and

obtain medical treatment” for Justine, as well as to manage

Justine’s finances.

While in the SOLA program, Justine lived in a home she

rented with two other developmentally disabled roommates,

also in the SOLA program. Her placement in that particular

home was chosen by the SOLA program, and Campbell

alleges that it was done against Campbell’s wishes. Justine

received round-the-clock care from SOLA employees, who

directed, monitored, and supervised her eating, dressing, bath-

ing, and other activities. Campbell alleges that the SOLA

caregivers put locks on the door to Justine’s home to prevent

Justine from wandering off without their permission. Despite

this need for supervision, Justine was able to travel to Elder

Care on a paratransit bus by herself, as she did on the day of

her accident.

Every year, employees at SOLA conducted a needs assess-

ment for Justine, resulting in the annual creation of a Personal

Support Plan (“PSP”). These PSPs were typically drafted after

a meeting attended by Justine, Campbell, and a variety of

SOLA staff, consultants, and others. The PSPs were written

in the first person and were meant to direct SOLA caregivers

as they worked with Justine. Justine’s PSPs included cautions

related to Justine’s use of the bathroom and bathtub in 1997,

2000, 2001, 2002, and 2003. These included warnings that

Justine needed to be reminded to use her helmet while she

bathed and that she needed to be monitored closely, including

via baby monitor, while she was in the bathtub, e.g., “Staff

20030 CAMPBELL v. STATE OF WASHINGTON

needs to supervise Justine at all times when she is in the bath-

tub and encourage her to use a bath pillow.” The 2006 PSP

did not include a bath-specific protocol but did include a gen-

eral instruction that Justine’s caregivers should check regu-

larly on Justine’s safety, i.e. “Please do not!!; Leave me alone

too long without checking on me.”

Defendant Pate was the SOLA manager responsible for

drafting Justine’s PSPs from 2002 through 2006. Defendants

Mitchell and McGenty began working regularly as Justine’s

daily caregivers in 2001 and 2002, respectively.

B

On Tuesday, October 10, 2006, the day of Justine’s acci-

dent, Defendants Mitchell and McGenty began their shifts at

3 p.m.3 At that time, Justine was not at home but was at Elder

Care, as was her routine on Tuesday and Thursday afternoons.

Justine returned home around 7:20-7:25 p.m. via the paratran-

sit bus, which dropped her off directly at her residence. Upon

returning home, she went to her room, where she played with

string, as she liked to do.

Around 8 p.m., Mitchell heard McGenty tell Justine to take

a bath. At this time, or shortly after, Mitchell was in the

kitchen preparing to give 8 p.m. medications to Justine’s

roommate; while there, she could hear Justine running the

bath water. After Mitchell heard the bath water stop running,

she joined McGenty in the livingroom. McGenty went into

the bathroom and told Justine she needed to start bathing;

McGenty then returned to the livingroom. Sometime later,

McGenty needed to use the bathroom, so she went back into

the bathroom while Justine was “lounging” in the bathtub but

was still not bathing.

3

The events in Part I.B are as described by Mitchell. The record does

not include deposition testimony from McGenty or any other witnesses to

Justine’s accident.

CAMPBELL v. STATE OF WASHINGTON 20031

When McGenty returned to the livingroom, she told Mitch-

ell that Justine had not yet begun to bathe. Mitchell testified

that when she went into the bathroom, she found Justine

relaxing in the bathtub, as was Justine’s practice. Justine was

not wearing a helmet or using a bath pillow, nor was there a

monitor in the bathroom, all of which had been required at

one time or another under previous PSPs, but which were not

required under the 2006 PSP. Mitchell told Justine to begin

washing herself. Justine responded by picking up her soap and

towel and starting to wash herself. Mitchell returned to the

livingroom. At some point after this, Mitchell went into the

kitchen and asked Justine’s roommate if she wanted a piece

of pie, which Mitchell then served to her. Mitchell returned to

the livingroom and sat on the couch.

At around 8:19-8:20 p.m., McGenty returned to the bath-

room, and she began yelling for Mitchell, saying, “[O]h my

God she’s not breathing, help me get her out of the tub.”

Mitchell and McGenty pulled Justine out of the tub, and

Mitchell then went for the phone to call 911. Mitchell was on

the phone with 911 when the ambulance arrived; the parame-

dics came into the house, which was unlocked, moved Justine

into the livingroom, and performed CPR. As soon as Mitchell

hung up with 911, she paged her supervisor. The paramedics

eventually revived Justine to the point that she had a heart-

beat, and they drove her to the hospital. Mitchell followed the

ambulance to the hospital, apparently by driving the SOLA

van. Justine was admitted to the ICU.

After a week in the hospital, Justine was removed from life

support and pronounced dead. The King County Medical

Examiner determined that she “died as a result of anoxic-

ischemic encephalopathy due to near drowning.”

Defendants Pate, Mitchell, and McGenty were each subject

to an investigation by DSHS, which resulted in the formal

reprimand of each defendant. Mitchell and McGenty were

20032 CAMPBELL v. STATE OF WASHINGTON

both fired from state employment, and Pate was reassigned to

an administrative position.

II

Campbell sued Defendants Pate, Mitchell, and McGenty

under 42 U.S.C. § 1983. Campbell alleged that Defendants

“caused plaintiff to be subjected to the deprivation of her con-

stitutional rights by participating in the deprivation, or by set-

ting in motion a series of acts by others which Defendant[s]

knew or reasonably should have known would cause others to

violate plaintiff’s civil rights.” Campbell did not specify

which of Justine’s constitutional rights were allegedly vio-

lated, though the facts specified that “SOLA housing is

staffed by employees of Defendant DSHS who are responsi-

ble for fostering an environment of ‘safe care.’ ” The district

court decided—and we accept—that these arguments com-

prise a claim that Defendants violated Justine’s Fourteenth

Amendment right to substantive due process.4

The primary issue before the court is whether Defendants

deprived Justine of a constitutional or federal right. This issue

determines the outcome of the case because if Defendants did

not violate Justine’s constitutional right to Fourteenth Amend-

ment substantive due process, they cannot be liable under

§ 1983 and summary judgment is appropriate.5 Conversely, if

4

The court reviews grants of motions for summary judgment de novo.

Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). Because Defen-

dants moved for summary judgment, it is their burden to demonstrate the

absence of a genuine issue of material fact for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). We must read the evidence in a

light most favorable to Campbell, the non-moving party. Serrano, 345

F.3d at 1082. We also review de novo decisions of qualified immunity.

Elder v. Holloway, 510 U.S. 510, 516 (1994). We can affirm on any

ground supported by the record. Atel Fin. Corp. v. Quaker Coal Co., 321

F.3d 924, 926 (9th Cir. 2003).

5

To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two

elements: (1) that a right secured by the Constitution or laws of the United

States was violated; and (2) that the alleged violation was committed by

a person acting under color of state law. See Ketchum v. Alameda Cnty.,

811 F.2d 1243, 1245 (9th Cir. 1987). In this case, it is undisputed that

Defendants were acting under color of state law.

CAMPBELL v. STATE OF WASHINGTON 20033

Defendants violated Justine’s due process right, then we pro-

ceed to our qualified immunity analysis to determine if the

constitutional right in question “was clearly established” at

the time of the alleged violation, finding qualified immunity

if the right was not clearly established. See Costanich v. Dep’t

of Soc. & Health Servs., 627 F.3d 1101, 1109-10 (9th Cir.

2010).

It is well established that although the Constitution protects

a citizen’s liberty interest in her own bodily security, see, e.g.,

Youngberg v. Romeo, 457 U.S. 307, 316-17 (1982), the state’s

failure to protect that interest does not violate the Fourteenth

Amendment, unless one of two exceptions applies: (1) the

special relationship exception, or (2) the state-created danger

exception. See DeShaney v. Winnebago Cnty. Dep’t. of Soc.

Servs., 489 U.S. 189 (1989); Patel v. Kent Sch. Dist., 648 F.3d

965 (9th Cir. 2011). Campbell argues on appeal that both

exceptions apply here. We disagree and address each in turn.

A

[1] State actors are not liable for their failures to protect an

individual’s Fourteenth Amendment right to safe conditions

unless a special relationship exists between those state actors

and the individual. This “special relationship exception” is

created when “the State takes a person into its custody and

holds him there against his will.” DeShaney, 489 U.S. at 199-

200 (emphasis added). “[I]t is the State’s affirmative act of

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

—through incarceration, institutionalization, or other similar

restraint of personal liberty—which is the ‘deprivation of lib-

erty’ triggering the protections of the Due Process Clause

. . . .” Id. at 200. In such a situation, the state has a duty to

“assume some responsibility for [the person’s] safety and gen-

eral well-being” because it has “render[ed] him unable to care

for himself.” Id. at 200. In the special relationship situation,

the state’s affirmative duty to protect arises from the limita-

tion the state has imposed on the person’s freedom to act for

20034 CAMPBELL v. STATE OF WASHINGTON

himself; the duty does not arise “from the State’s knowledge

of the individual’s predicament or from [the State’s] expres-

sions of intent to help.” Id.

[2] Campbell argues that the special relationship exception

applies here because Justine was in state custody at the time

of her death. Mere custody, however, will not support a “spe-

cial relationship” claim where a “person voluntarily resides in

a state facility under its custodial rules.” Walton v. Alexander,

44 F.3d 1297, 1305 (5th Cir. 1995) (student’s voluntary

enrollment in school for the deaf and “willful relinquishment

of a small fraction of liberty simply is not comparable to that

measure of almost total deprivation experienced by a prisoner

or involuntarily committed mental patient”); see also Patel,

648 F.3d at 974 (concluding that although student was statu-

torily required to “attend schools somewhere” the fact that the

student could be removed from school at any time “pre-

clude[d] a custodial relationship”); Torisky v. Schweiker, 446

F.3d 438, 446, 448 (3d Cir. 2006) (finding that the district

court “erred in concluding that the state owes an affirmative

due process duty of care to residents of a state [mental] insti-

tution who are free to leave state custody”); Brooks v. Giuli-

ani, 84 F.3d 1454, 1466-67 (2d Cir. 1996) (holding that an

“expressed intent to provide assistance,” without an “affirma-

tive act of restraining the individual’s freedom to act,” did not

create a special relationship between state guardians and

mentally-handicapped adults placed in residential care);

Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987,

991 (1st Cir. 1992) (finding patient’s voluntary commitment

in mental treatment facility did not “trigger a corresponding

due process duty to assume a special responsibility for his

protection”). But see Kennedy v. Schafer, 71 F.3d 292, 295

(8th Cir. 1995) (fact that patient of state psychiatric hospital

had “no absolute right to leave” and “presented a risk of sui-

cide” precluded summary judgment in favor of state employ-

ees). Campbell acknowledges that Justine’s placement with

SOLA was initially voluntary but claims that it “became cus-

todial in nature over time.” See Torisky, 446 F.3d at 446 (a

CAMPBELL v. STATE OF WASHINGTON 20035

commitment that was initially voluntary “may, over time, take

on the character of an involuntary one” and “commitments

formally labeled as ‘voluntary’ may arguably amount to de

facto deprivations of liberty from their inception”). Campbell

alleges that SOLA careworkers took four affirmative acts,

each of which “imposed on [Justine’s] freedom to act [for her-

self],” DeShaney, 489 U.S. at 200, and converted her volun-

tary custody into involuntary custody. These liberty-

restricting acts were SOLA’s (1) placing locks on the doors

of Justine’s home to control her ability to leave; (2) maintain-

ing control over which SOLA home Justine lived in after

1995; (3) maintaining control over Justine’s transportation,

diet, and wardrobe; and (4) maintaining control over how and

when Justine bathed.

[3] Even accepting Campbell’s version of the facts, these

state actions did not convert Justine’s voluntary custody into

involuntary custody. When Justine entered the program, she

could not prepare meals for herself, needed assistance with

transportation, needed assistance with bathing, and needed

round-the-clock supervision. SOLA’s ability to assist and

supervise Justine in these ways is the reason she entered the

SOLA program in the first place. Campbell testified that she

had wanted Justine to enroll in SOLA so Justine could live a

“somewhat independent, normal life” and “do as much as she

could,” meaning, more than she could do on her own. As the

district court noted, what Campbell alleges were Defendants’

liberty-restraining acts were merely part of SOLA’s efforts to

“ensure[ ] Justine’s day-to-day safety and care.” The state’s

performance of the very acts for which an individual voluntar-

ily enters state care does not transform the custodial relation-

ship into an involuntary one.

[4] For similar reasons, we reject Campbell’s argument

that Justine’s mental abilities rendered her under the control

of the state. Campbell argues, “Due to her cognitive impair-

ments, Justine could not leave the SOLA home without per-

mission from her caregivers.” This argument fails for two

20036 CAMPBELL v. STATE OF WASHINGTON

reasons: First, Justine’s mental abilities were not the product

of state action; they were limitations she brought with her into

custody. Second, the record does not include any evidence

that SOLA employees took actions that caused Justine’s men-

tal abilities to degrade over time, thereby requiring her to be

brought under greater SOLA control.

[5] Campbell’s remaining involuntary custody argument

fails as well. Campbell argues that Justine’s status trans-

formed from voluntary custody into involuntary custody after

Campbell’s guardianship over Justine’s estate terminated. We

fail to see how the state’s relationship to Justine morphed as

a result of Campbell’s failure to complete her guardianship

paperwork. This is clearly not an affirmative act by SOLA.6

Furthermore, as the district court pointed out, irrespective of

Campbell’s legal status as Justine’s guardian, Justine was not

barred from leaving SOLA’s custody. See Wash. Rev. Code

§ 11.92.190 (prohibiting involuntary detention in a residential

treatment facility).

The dissent argues that “Justine was effectively confined by

the state.” Dissenting Op. at 20046. There are no facts to

make that a material dispute of fact. The dissent points out

that Justine was in and out of foster homes when she was

younger—largely as a consequence of her family’s inability

to care for her—but concedes that once Justine reached 18,

“she was no longer a ward of the state.” Id. at 20047. Thereaf-

ter, in 1991, “Justine was ‘referred for community placement’

and ‘opted for a SOLA home.’ ” Id. The dissent concedes that

“[t]heoretically, Justine’s participation in SOLA was volun-

tary,” id. at 20047, but has nothing to suggest why Justine’s

participation in SOLA was anything but voluntary. The record

unambiguously shows that Justine and her mother requested

6

The district court raised but did not resolve the question of whether

Campbell’s guardianship over Justine was actually terminated. Because all

parties assumed Campbell’s guardianship had lapsed, we likewise assume

so for purposes of this appeal.

CAMPBELL v. STATE OF WASHINGTON 20037

SOLA and that DSHS’s letter to Campbell and Justine

reminded her that her “participation . . . is voluntary, and that

you may withdraw your request at any time.” That is a far cry

from the Supreme Court’s statement that the “State’s affirma-

tive act of restrain[t]” must amount to “incarceration, institu-

tionalization, or other similar restraint of personal liberty”

sufficient to show that the state is “hold[ing the individual]

there against his will.” DeShaney, 489 U.S. at 199-200. That

“SOLA placed locks on the door” is evidence that SOLA was

concerned for Justine’s day-to-day safety, not that she was

incarcerated. Dissenting Op. at 20048.

[6] Because Campbell does not articulate how any of the

purportedly duty-triggering affirmative acts she listed were

acts taken by the state “against [Justine’s] will,” she has not

met her burden of proving that Justine was in involuntary cus-

tody at the time of her accident. DeShaney, 489 U.S. at 200

(emphasis added). Accordingly, we hold that no special rela-

tionship had been created here and that the special relation-

ship exception does not allow Defendants to be held liable

under § 1983.

B

[7] We likewise reject Campbell’s argument that the state

created a danger to which it exposed Justine, giving rise to

state actors’ affirmative obligation to protect Justine’s Four-

teenth Amendment liberty interest.7 The state-created danger

exception creates the potential for § 1983 liability where a

state actor “creates or exposes an individual to a danger which

7

Campbell mentioned but did not argue or brief the state-created danger

exception before the district court. The court does not generally consider

issues raised for the first time on appeal. See, e.g., Cold Mountain v. Gar-

ber, 375 F.3d 884, 891 (9th Cir. 2004). Because we find that the state-

created danger argument fails, we need not decide whether Campbell has

waived this argument.

20038 CAMPBELL v. STATE OF WASHINGTON

he or she would not have otherwise faced.” Kennedy v. City

of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006).8

In this case, Campbell alleges that Pate exposed Justine to

the danger of being bathed by workers who were guided by

a PSP that did not include bathing protocols because Pate had

removed those protocols from the PSP. She also alleges that

Mitchell and McGenty created a danger by leaving Justine

alone in the bathtub and by failing to perform CPR.9 These

claims resemble more closely those in Patel, 648 F.3d at 968-

70, and Johnson v. City of Seattle, 474 F.3d 634 (9th Cir.

2007), where we did not find a state-created danger exception,

than those in the cases in which we did, see Kennedy, 439

F.3d at 1062; Munger v. City of Glasgow, 227 F.3d 1082,

1086 (9th Cir. 2000); Penilla v. City of Huntington Park, 115

F.3d 707 (9th Cir. 1997); L.W. v. Grubbs, 974 F.2d 119 (9th

Cir. 1992); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989).

In Patel, A.H. was a developmentally delayed high school

student attending special education class at Kentridge High

School. Patel, 648 F.3d at 968. Although A.H. was closely

supervised, on at least five occasions she was allowed to go

to the bathroom by herself, where she had sex with another

8

Kennedy also appears to require that plaintiffs demonstrate that the

danger to which the individual was exposed “was known or obvious” and

that the state “acted with deliberate indifference to it.” 439 F.3d at 1064.

Because Campbell has not shown the first requirement—that the state cre-

ated the danger—we do not here address whether Campbell must also

have established that state actors demonstrate deliberate indifference in the

face of known or obvious dangers. See Johnson v. City of Seattle, 474 F.3d

634, 639 (9th Cir. 2007) (“To prevail under the danger creation exception,

a plaintiff must first show that the state action affirmatively places the

plaintiff in a position of danger, that is, where state action creates or

exposes an individual to a danger which he or she would not have other-

wise faced.” (emphasis added) (internal alterations, quotation marks, and

citations omitted)).

9

Whether Defendants Mitchell and McGenty performed CPR appears to

be disputed, but we read the facts in the light most favorable to the non-

moving party, which, here, is Campbell.

CAMPBELL v. STATE OF WASHINGTON 20039

developmentally disabled student in the class. Id. at 969-70.

A.H. and her mother brought a § 1983 suit against A.H.’s

teacher, Wilhelm. Id. at 970. We pointed out that the state-

created danger exception requires proof of “deliberate indif-

ference to a known or obvious danger.” Id. at 971-72 (quota-

tion marks and citations omitted). Deliberate indifference is a

higher standard than gross negligence because it “requires a

culpable mental state,” meaning that “[t]he state actor must

‘recognize[ ] [an] unreasonable risk and actually intend[ ] to

expose the plaintiff to such risks without regard to the conse-

quences to the plaintiff.” Id. at 974 (alteration in original)

(quoting L.W. v. Grubbs, 92 F.3d 894, 899 (9th Cir. 1996)).

We concluded that Wilhelm “did not know there was any

immediate danger in allowing A.H. to briefly use the next-

door bathroom . . . At worst, Wilhelm committed a lapse in

judgment by allowing A.H. to quickly use the next-door bath-

room on her own.” Patel, 648 F.3d at 976.

In Johnson, the plaintiffs claimed that their Fourteenth

Amendment due process rights were violated by the police

chief because his actions “affirmatively plac[ed] them in a

position of enhanced danger.” 474 F.3d at 635. The plaintiffs

argued that they were assaulted and injured by members of a

rioting Mardi Gras crowd, gathered at a public event spon-

sored by private businesses, after the police decided to

“switch from a more aggressive operation plan to a more pas-

sive one.” Id. at 641. We held that the government defendants

in Johnson had not violated the plaintiffs’ constitutional

rights, even though they had abandoned a plan “that might

have more effectively” protected the plaintiffs’ safety, id., and

replaced it with a plan that was “calamitous in hindsight,” id.

at 639 (citation omitted). We found that, on those facts, the

plaintiffs “ha[d] failed to offer evidence that the Defendants

engaged in affirmative conduct that enhanced the dangers the

[plaintiffs] exposed themselves to by participating in the

Mardi Gras celebration.” Id. This was because the decision to

decrease police intervention “did not place [the plaintiffs] in

20040 CAMPBELL v. STATE OF WASHINGTON

any worse position than they would have been in had the

police not come up with any operational plan whatsoever.” Id.

Patel and Johnson follow the Supreme Court’s decision in

DeShaney, in which the Court found that the state-created

danger exception did not apply where a boy’s “Child Protec-

tion Team” had decided to transfer him from the custody of

the state to the custody of his father, even though they had

reason to believe his father was abusive. DeShaney, 489 U.S.

at 192, 201. The Court held that this decision was not an affir-

mative act by the government defendants within the meaning

of the state-created danger exception, even though that deci-

sion made possible the subsequent severe and disabling beat-

ings the boy suffered at the hands of his father. Id. at 193. As

the Court explained:

While the State may have been aware of the dangers

that Joshua [the boy] faced in the free world, it

played no part in their creation, nor did it do any-

thing to render him any more vulnerable to them.

That the State once took temporary custody of

Joshua does not alter the analysis, for when it

returned him to his father’s custody, it placed him in

no worse position than that in which he would have

been had it not acted at all; the State does not

become the permanent guarantor of an individual’s

safety by having once offered him shelter.

Id. at 201; see id. at 196-97 (“If the Due Process Clause does

not require the State to provide its citizens with particular pro-

tective services, it follows that the State cannot be held liable

under the Clause for injuries that could have been averted had

it chosen to provide [those services].”).

[8] Our decisions in Patel and Johnson and the Supreme

Court’s decision in DeShaney compel the outcome here.

Although Defendant Pate was the SOLA manager responsible

for coordinating Justine’s care, including the annual updating

CAMPBELL v. STATE OF WASHINGTON 20041

of Justine’s PSP, and Defendants Mitchell and McGenty were

responsible for monitoring Justine on a daily basis, none of

them acted affirmatively to place Justine in the way of a dan-

ger they had created. Indeed, a long bath was one of Justine’s

favorite activities—one she frequently enjoyed. Justine’s

death was caused by the dangers inherent in her own physical

and mental limitations. Defendants’ prior efforts to help keep

Justine safe do not render them responsible for creating the

danger to which she tragically succumbed. See id. at 202

(“[T]he Due Process Clause of the Fourteenth Amendment

. . . does not transform every tort committed by a state actor

into a constitutional violation.”).

[9] We thus respectfully disagree with the dissent that

Defendants may be liable for a constitutional violation “[b]y

ordering Justine to take a bath without direct supervision” or

that “the ‘routine’ of having Justine bathe herself without any

necessary precautions was of the state’s making.” Dissenting

Op. at 20044. The only facts in the record show that Mitchell

had checked on Justine in the tub several times and that, on

finding her not breathing, called for help, pulled her from the

tub, and dialed 911. Those facts might show a “lapse in judg-

ment” but not a finding of “deliberate indifference,” or an

intent “to expose [Justine] to such risks without regard to the

consequences.” Patel, 648 F.3d at 974, 976. Campbell may

well have a complaint against Defendants under Washington

tort law, but we decline “to constitutionalize a state tort.” Id.

at 976.

[10] Accordingly, we hold that Defendants did not create

the situation—Justine’s impairments or her routine bath—that

resulted in Justine’s death. Their acts were not affirmative

acts akin to those found in cases where we recognized a state-

created danger. See Kennedy, 439 F.3d at 1062 (police con-

fronting a man accused of child abuse by his neighbors with-

out first warning the neighbors, as he had promised to do,

after which the alleged child abuser killed two of the accusing

neighbors); Munger, 227 F.3d at 1086 (police officer ejecting

20042 CAMPBELL v. STATE OF WASHINGTON

an obviously drunk man from a bar and leaving him outside

on a bitterly cold night during which he froze to death);

Penilla, 115 F.3d at 707 (police officers finding a man in need

of serious medical attention, cancelling the man’s request for

the paramedics, and then locking him in his house, where he

died); L.W., 974 F.2d at 119 (state hospital supervisor assign-

ing nurse to work alone with a known, violent sex-offender

who raped her); Wood, 879 F.2d at 583 (police leaving a

woman alone at night in a known high crime area where she

was subsequently raped).

Justine’s death here was tragic and unfortunate. But that

does not render Defendants—her government caretakers—

liable under § 1983 where Defendants did not put Justine in

the way of a harm of their own creation.

III

Because Defendants did not violate Justine’s Fourteenth

Amendment substantive due process rights, the district court

properly granted summary judgment in their favor.

AFFIRMED.

B. FLETCHER, Circuit Judge, dissenting:

I respectfully dissent because the majority has failed to

consider all of the facts and to draw all inferences in Camp-

bell’s favor. In so doing, it concludes that the state owed Jus-

tine Booth no duty of care and absolves the state of any

responsibility for its employees’ recklessness. We should hold

that state employees exposed Justine to a greater danger than

she would otherwise have faced by encouraging her to enter

the bath and to leave her unattended for far too long. Camp-

bell raised a triable issue of material fact as to whether the

state of Washington had a “special relationship” with Justine.

CAMPBELL v. STATE OF WASHINGTON 20043

Campbell has alleged facts that, if true, establish that the state

owed a duty of care to Justine and is liable under 42 U.S.C.

§ 1983 for its alleged failure to protect her from deprivations

of life and liberty without due process of law. See Corales v.

Bennett, 567 F.3d 554, 562 (9th Cir. 2009). Moreover, defen-

dants are not entitled to qualified immunity because it was

clearly established at the time of the events that the state owes

an affirmative duty of care when it exposes an individual to

danger that she would otherwise not have faced. We should

hold that the district court erred in granting summary judg-

ment and should remand for trial.

I. Constitutional Violation

The due process clause “forbids the State itself to deprive

individuals of life, liberty or property without ‘due process of

law,’ ” but does not “impose an affirmative obligation on the

State to ensure that those interests do not come to harm

through other means.” DeShaney v. Winnebago County Dep’t

of Soc. Serv., 489 U.S. 189, 195 (1989). We have recognized

two exceptions to this rule: (1) the “danger creation excep-

tion” and (2) the “special relationship” exception. Johnson v.

Seattle, 474 F.3d 634, 639 (9th Cir. 2007). I address each in

turn.

A. Danger Creation

To prevail under the danger creation exception, a plaintiff

must show that affirmative state action exposed the plaintiff

to a greater degree of danger than she otherwise would have

faced. Johnson, 474 F.3d at 639. The majority concludes that

the dangers Justine faced were a product of her own physical

and mental limitations, rather than the product of any action

by the state. Majority Op. at 20041. But we have never

required the state to be the source of the danger posed.

Rather, our “cases clearly contemplate § 1983 liability for the

state actor who, though not inflicting plaintiff’s injury him-

self, has placed plaintiff in the harmful path of a third party”

20044 CAMPBELL v. STATE OF WASHINGTON

— or, as in this case, placed an individual in a situation where

she was at greater risk of harm from her own limitations. See

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 n.2 (9th

Cir. 2006). In other words, the “danger creation” exception

applies when defendants’ acts increased plaintiffs’ exposure

to dangers already present. See Penilla v. Huntington Park,

115 F.3d 707, 710 (9th Cir. 1997) (holding that officers were

subject to the danger creation exception because they placed

an individual “in a more dangerous position than the one in

which they found him”); L.W. v. Grubbs, 974 F.2d 119, 121

(9th Cir. 1992) (holding that defendants were subject to the

danger creation exception when they “independently created

the opportunity for and facilitated” a third party assault of

plaintiff).

Campbell alleges, and at least one of the defendants admits,

that defendants Mitchell and McGenty ordered Justine to get

in the bath on the night of her death. By ordering Justine to

take a bath without direct supervision, defendants McGenty

and Mitchell committed an affirmative act that increased Jus-

tine’s likelihood of succumbing to the dangers inherent in her

physical condition. Cf. Munger v. City of Glasgow Police

Dep’t, 227 F.3d 1082, 1087 (9th Cir. 2000) (finding an affir-

mative act when police ordered a visibly drunk man to leave

a bar wearing only a t-shirt on a freezing night).

The majority brushes off the role Mitchell and McGenty

played in Justine’s bath, characterizing the bath as “routine.”

Op. at 20041. It ignores, however, that the “routine” of having

Justine bathe herself without any necessary precautions was

of the state’s making. The defendants increased Justine’s

exposure to the risk of drowning with deliberate indifference

to the fact that Justine had previously suffered seizures in the

bath and that Justine’s prior Personal Support Plans required

her to be directly supervised while she was in the bathtub.

Between 2004 and 2006, Justine had at least six seizures in

the bathroom and was found on many other occasions sleep-

CAMPBELL v. STATE OF WASHINGTON 20045

ing in the bathtub. The state was aware of these risks.1 Despite

actual knowledge of these risks, the defendants allowed

almost twenty minutes to elapse without checking on Justine

while they sat on the sofa watching television.

Simply put, Justine would not have been in the bath uns-

upervised at the moment of her death had defendants not

ordered her to be there.2 Given that state employees instructed

Justine to take a bath and then failed to take even basic pre-

cautions necessary to mitigate the risk, the danger creation

exception applies.

B. Special Relationship

As the majority correctly acknowledges, the special rela-

tionship exception applies when the state holds an individual

in custody, as opposed to when an individual voluntarily

resides in the care of the state. Op. at 20034. Court-ordered

commitment to state care is not, however, a necessary pre-

1

In this respect, Patel v Kent School District, 648 F.3d 965 (9th Cir.

2011), is distinguishable. In Patel, we stated that “[t]his would be a differ-

ent case if [the defendant] had known” about any immediate risk. Id. at

975. Here, unlike the defendant in Patel, the defendants “stood idly by”

when actually aware of an immediate risk to Justine. In addition to being

aware that Justine “required extensive supervision and had been involved

in past [bathtub] incidents,” the defendants knew the details of these inci-

dents and were aware of the immediate danger in placing Justine in the

bathtub unattended. Id. at 975-76.

2

Johnson v. City of Seattle is also distinguishable. There, plaintiffs were

injured during violence surrounding Mardi Gras celebrations in Seattle’s

Pioneer Square. Johnson, 474 F.3d at 638. Plaintiffs alleged that the

police, who chose to employ a more “passive” crowd control policy than

they had previously used, enhanced the danger they faced. We disagreed,

noting that plaintiffs voluntarily chose to enter Pioneer Square, and the

more passive plan “placed [the Pioneer Square plaintiffs] in no worse

position than that in which they would have been had [the defendants] not

acted at all.” Id. at 641. Here, in contrast, defendants took the affirmative

step of ordering Justine to enter the bath, thus placing her in the path of

danger.

20046 CAMPBELL v. STATE OF WASHINGTON

requisite to a special relationship. Torisky v. Scweiker, 446

F.3d 438, 431 (3d Cir. 2006). Rather, the question is whether,

at the time of the events in question, the individual was free

to leave state custody. Id. at 441; see also Kennedy v. Schafer,

71 F.3d 292, 295 (8th Cir. 1996). This is a question of fact.

The standard for summary judgment review requires that we

“draw all reasonable inferences in favor of [Campbell], the

nonmoving party,” and prohibits us from “substitut[ing] [our]

judgment concerning the weight of the evidence for the

jury’s.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323

F.3d 1185, 1194 (9th Cir. 2003). The burden is on defendants

to show that there are no material disputes of fact. Fed. R.

Civ. Pr. 56(c). If a reasonable jury could conclude that Justine

was effectively confined by the state, then Campbell has

alleged a viable constitutional claim and the defendants are

not entitled to summary judgment.

The facts here preclude summary judgment. Justine was in

state custody for virtually her entire life. In 1975, when Jus-

tine was two, her mother voluntarily surrendered Justine and

her brother to state custody in California. Three years later,

Justine was sent to live with her father and her step-mother in

Washington. She lived with them for two years, but, after her

father left the family in 1980, Justine exhibited aggressive

behaviors. Her stepmother then placed her in the custody of

the Department of Health and Social Services. Justine was

later admitted to the state’s Child Study and Treatment Center

(CSTC).3 For the next six years, she moved between CSTC

and foster homes.

As a teenager, Justine remained in state custody. In 1987,

while she was still a ward of the state, Justine was admitted

to the Fircrest School on an emergency basis.4 Justine

3

CTSC is a state run psychiatric hospital for children. The record indi-

cates that Justine was “kept” at CSTC, but does not specifically state that

she was involuntarily committed. Because she was a ward of the state at

the time, we infer that the state committed her.

4

Fircrest School is a residential center for developmentally disabled

youth operated by the state Division of Developmental Disabilities

(DDD).

CAMPBELL v. STATE OF WASHINGTON 20047

remained at Fircrest until she was 18 years old, at which point

because of her age she was no longer a ward of the state. Her

Fircrest annual social summary from 1991 indicates that Jus-

tine was “referred for community placement” and “opted for

a SOLA home.” The summary noted that “[f]ree access to the

community for Justine is tempered by her medical condition,

occasional maladaptive behaviors, and need for protection.”

Fircrest staff worked closely with SOLA to facilitate Justine’s

transition. In concluding that Justine “requested” the place-

ment at SOLA, the majority fails to acknowledge this history.

Based on these facts, a reasonable jury could conclude that

the state, acting as Justine’s guardian, advocated for and

arranged the SOLA placement.

Theoretically, Justine’s participation in SOLA was volun-

tary. The letter welcoming Justine to SOLA fifteen years

before her death formally permitted her to withdraw from

SOLA at any time. Furthermore, while Washington law

allows the state to detain individuals who voluntarily enter

mental health facilities or residential habilitation centers (like

Fircrest) but seek to leave, no such provision exists for indi-

viduals, like Justine, who occupy leased homes with “room-

mates” but are provided 24 hour care and supervision by state

employees. See Wash. Rev. Code § 71.05.050 (allowing the

staff to detain a person voluntarily admitted for mental health

services who requests discharge in order to authorize further

evaluation or involuntary commitment to custody if the staff

believes the person presents an imminent likelihood of serious

harm to themselves or to others or is disabled); § 71A.20.140

(the secretary may detain a rehabilitation center resident for

no more than 48 hours even though he believes that departure

may be harmful to the resident).

But even if initial enrollment in SOLA was voluntary, a

jury could conclude that Justine’s participation in SOLA

became de facto involuntary. Campbell introduced evidence

that SOLA staff wouldn’t let Justine “run away”, or “go on

vacation”, and that Justine’s “comings and goings” were mon-

20048 CAMPBELL v. STATE OF WASHINGTON

itored by SOLA staff.5 A former SOLA caregiver who had

worked with Justine stated that SOLA placed locks on the

door to prevent Justine from leaving the home without per-

mission, that they were trained to stop her if she tried to leave

without authorization, and that they would not allow her to

terminate her participation in SOLA or move out because she

was legally incompetent. A SOLA supervisor noted that “the

majority” of SOLA clients can’t make decisions for them-

selves, so their caregivers “might prevent” them from “wan-

dering off.” The majority dismisses these facts, stating that

“what Campbell alleges were the Defendant’s liberty-

restraining acts were merely part of SOLA’s efforts to ensure

Justine’s day-to-day safety and care.” Op. at 20035. A reason-

able jury could view these facts differently. It would be rea-

sonable to conclude, for example, that Justine was trying to

leave state custody when she attempted to “go on vacation”

and that SOLA staff’s prevention of those actions—even if

motivated by concern for her safety—effectively restrained

her liberty. See Kennedy, 71 F.3d at 295 (citing DeShaney and

remanding where a voluntary mental patient may have effec-

tively become an involuntary patient).

The majority also ignores a final fact supporting Camp-

bell’s claim that Justine was involuntarily in state custody.

Justine’s annual PSPs noted her ability to change her support

program at any time, but did not inform her that she had the

ability to terminate her participation in the program alto-

gether. In this respect, Justine had fewer rights than individu-

als residing in state mental health institutions; people who

voluntarily commit themselves to Washington state mental

5

The majority states that Justine traveled “by paratransit bus” by herself

to Elder Care. The record refers to “Access vans,” which are King County

Metro Transportation services available exclusively to people who have

been found eligible for paratransit services in the county. See http://metro.

kingcounty.gov/tops/accessible/accessvan.html. Access riders must sched-

ule rides, and specify the pick up and drop off locations. The vans are not

open to the general public, nor are riders permitted to freely change their

schedules. Id.

CAMPBELL v. STATE OF WASHINGTON 20049

health institutions must, by law, be notified every 180 days of

their right to discharge upon request. Wash. Rev. Code

§ 75.05.050.

These facts could establish at trial that Justine’s placement

in SOLA, though formally voluntary, was de facto involun-

tary. A reasonable jury could conclude that Justine was in

involuntary custody because the state (1) advocated for and

arranged the SOLA placement while Justine was a ward of the

state; (2) monitored and controlled every aspect of Justine’s

daily life; (3) prevented Justine from leaving SOLA; and (4)

failed to inform Justine of her ability to terminate her custo-

dial relationship. Because a jury could reasonably conclude

that the state exercised involuntary custody over Justine, the

trial court should not have concluded that there was no special

relationship and no affirmative obligation to protect Justine’s

constitutional rights.

II. Qualified Immunity

Because I would hold that Campbell has alleged a constitu-

tional violation, I turn to the question of whether summary

judgment was nevertheless appropriate because defendants

are protected by qualified immunity. Even if a plaintiff has

alleged a violation of constitutional right, state actors are

immune from suit if the right was not clearly established at

the time of the events in question. A constitutional right is

clearly established when

its contours [are] sufficiently clear that a reasonable

official would understand that what he is doing vio-

lates that right. This is not to say that an official

action is protected by qualified immunity unless the

very action in question has previously been held

unlawful . . . but it is to say that in light of pre-

existing law the unlawfulness must be apparent.

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation marks

and internal citations removed). We “need not find a prior

20050 CAMPBELL v. STATE OF WASHINGTON

case with identical or even ‘materially similar’ facts.” Flores

v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37

(9th Cir. 2003). Rather, we need only conclude that defen-

dants had “fair warning” that their conduct was unlawful. Id.

at 1137.

It has been clearly established in the Ninth Circuit since at

least 1998 that “state officials could be held liable where they

affirmatively and with deliberate indifference placed an indi-

vidual in danger she would not otherwise have faced.” Ken-

nedy, 439 F.3d at 1066. Because defendants affirmatively

exposed Justine to danger, they are not entitled to qualified

immunity.

III. Conclusion

I conclude that the trial court erred by granting summary

judgment to the State of Washington, holding that it did not

owe Justine Booth a duty of care under either the special rela-

tionship or the danger creation doctrines. This is a case that

I would send to a jury to decide whether the state failed to dis-

charge those duties. My sense is that the tragedy in this case

could and should have been prevented, and that the defen-

dants should not be free from liability without a decision in

their favor by a jury.

I respectfully dissent.