FILED

NOT FOR PUBLICATION

MAY 14 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA DAVIS, as Personal No. 18-35073 Representative of the Estate of G.B., deceased, D.C. No. 2:17-cv-00062-SMJ

Plaintiff-Appellee,

MEMORANDUM*

v.

WASHINGTON STATE DEPARTMENT

OF SOCIAL AND HEALTH SERVICES;

et al.,

Defendants,

and

RIVERSIDE SCHOOL DISTRICT

NUMBER 416, a Municipal Corporation duly organized and existing under the laws of Washington State; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted April 10, 2019 Seattle, Washington

Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

Defendants-Appellants Juanita Murray, Roberta Kramer, and Riverside

School District (collectively, Defendants) appeal the district court’s order denying

summary judgment based on Murray’s and Kramer’s assertions of qualified

immunity against Plaintiff Barbara Davis’s 42 U.S.C. § 1983 claim.1 We affirm

the district court’s determination that, viewing the evidence in the record in the

light most favorable to the non-moving party, Murray and Kramer (collectively,

the Officials) are not entitled to qualified immunity.2

1. Appellate Jurisdiction. “We review de novo a challenge to our appellate

jurisdiction over an interlocutory appeal.” Pauluk v. Savage, 836 F.3d 1117, 1120

(9th Cir. 2016). Davis contends that we lack jurisdiction because Defendants only

raise sufficiency of the evidence challenges. To the extent Defendants argue that

“contrary to the district court’s assertions, an examination of the record reveals that

there is no dispute as to the facts, or that there is not sufficient evidence in the

1 As the parties are familiar with the facts, we do not recount them here. We DENY Defendants’ motions to supplement the record, dkt. # 10 and dkt. # 25, because that evidence was not before the district court. 2 We decline Defendants’ request that we exercise pendant jurisdiction to review the district court’s denial of summary judgment as to Davis’s Monell claim against Riverside School District. 2 record to create such a dispute, we must dismiss for lack of jurisdiction.” Collins

v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1996); see also Knox v. Sw. Airlines, 124

F.3d 1103, 1107 (9th Cir. 1997) (“[W]e do not have jurisdiction over an

interlocutory appeal that focuses on whether there is a genuine dispute about the

underlying facts.”). However, we do have interlocutory jurisdiction pursuant to 28

U.S.C. § 1291 to review “the purely legal question of whether, assuming the

factually-supported version of events offered by [Davis] is correct, the district

court erred in denying qualified immunity.” Pauluk, 836 F.3d at 1120 (internal

quotation marks omitted). Specifically, we consider whether Davis failed to state a

viable claim under the state-created danger exception doctrine.3

2. State-Created Danger Exception. We “review de novo an interlocutory

appeal from the denial of summary judgment based on qualified immunity.” Id.

The Officials’ are entitled to qualified immunity “insofar as their conduct does not

violate established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Although government actors

3 We need not reach Defendants’ argument that the district court relied on inadmissible evidence in denying the Officials qualified immunity because, even assuming that portions of the school counselor’s declarations and deposition testimony are inadmissible as alleged, we conclude that a dispute of material facts remains, precluding summary judgment. 3 generally have no constitutional obligation to protect individuals from third parties,

one exception to this rule is the state-created danger exception. Patel v. Kent Sch.

Dist., 648 F.3d 965, 971–72 (9th Cir. 2011). Under the state-created danger

exception, a state may be held liable where: (1) “there is affirmative conduct on the

part of the state in placing the plaintiff in danger,” and (2) “the state acts with

deliberate indifference to a known or obvious danger.” Id. at 974 (internal

quotation marks omitted).

Addressing the first prong, the district court determined that, viewing the

evidence in the light most favorable to Davis, a reasonable trier of fact could

conclude that the Officials adopted and implemented polices that required staff to

report suspected abuse only to designated staff or administrators, and encouraged

staff to delay or avoid reporting suspected abuse, and that these practices

affirmatively placed G.B. in danger. We agree. In the 2014–15 school year,

Chatteroy Elementary School’s (CES) staff handbook addressed reporting of

suspected abuse or neglect as follows:

ANY school personnel who has “reasonable cause” to believe that a child is suffering injuries, suffering physical neglect, or sexual abuse, MUST report this to the CES counselor, first, and then the counselor will then report to the Department of Child Protective Services.

4 There is substantial evidence in the record that the Officials discouraged staff from

directly reporting to Child Protective Services (CPS). For example, G.B.’s primary

teacher testified that after she saw bilateral bruising on G.B.’s ears and arms, she

notified Murray of the injuries and asked Murray if she should report it. Murray

allegedly responded that she would take care of it, but she did not report the

incident to CPS or law enforcement. The teacher testified that she did not follow

up on the incident because she understood that reporting the injuries to Murray

satisfied her responsibility. Because the policies and practices implemented by the

Officials discouraged or at least delayed reports of abuse, contrary to Riverside

School District’s written policy and mandatory reporting requirements, a trier of

fact could conclude that the Officials’ affirmative conduct “left [G.B.] in a

situation that was more dangerous than the one in which they found him.” Munger

v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000).

Reasonable jurors could further conclude that had the Officials not

discouraged staff from directly reporting suspected abuse, staff would have

reported signs that G.B. was abused to authorities on several occasions between

5 October 2014 and April 2015,4 and CPS would have intervened. Defendants argue

that staff members testified they did not suspect that G.B. was abused, but the

record includes evidence suggesting staff members’ testimony may have been

influenced by Davis’s lawsuit against these staff members, and credibility issues

are not resolved at summary judgment. See Estate of Lopez ex rel. v. Gelhaus, 871

F.3d 998, 1008–10 (9th Cir. 2017). Moreover, had the Officials not barred the

school counselor from working with G.B. after she reported suspected abused to

CPS in December 2014, the counselor may have identified subsequent signs that

G.B. was being abused and reported those incidents.

Turning to the second prong of the state-created danger exception, and

viewing the evidence in the light most favorable to Davis, reasonable factfinders

could conclude that the Officials acted with deliberate indifference to a known or

obvious danger. Deliberate indifference requires that the state actor “recognize[]

[an] unreasonable risk and actually intend[] to expose the plaintiff to such risks

without regard to the consequences to the plaintiff.” Patel, 648 F.3d at 974

(internal quotation marks omitted). Although deliberate indifference is a “stringent

4 There were several occasions where G.B. displayed signs of potential abuse, including bruising and a severe burn in October 2014, bilateral bruising in November 2014, significant absences in January and March 2015, and G.B.’s statement in April 2015 that “Mom punched me in the head.” 6 standard of fault,” the “deliberate-indifference inquiry should go to the jury if any

rational factfinder could find this requisite mental state.” Id. (internal quotation

marks omitted). We agree with the district court that issues of fact remain

concerning whether the Officials were deliberately indifferent to a known or

obvious danger—that discouraging or delaying reports of suspected child abuse to

authorities would expose G.B. to harm. G.B. was a high needs, verbally impaired

five-year-old, the counselor who had reported suspected abuse was directed to have

no further contact with him, and yet there is no indication that G.B.’s primary

teacher was notified of the report to CPS or that another counselor was assigned to

work with G.B.. Defendants did not contest the district court’s deliberate

indifference determination at oral argument, stating that if we conclude that “there

is a policy or practice of discouraging . . . reporting of abuse and that policy, in this

case, applied to these facts, led a teacher or staff member to not make a report, then

yes I agree there would be an issue of state-created danger.”

We affirm the district court’s ruling that the Officials are not entitled to

qualified immunity at summary judgment.

AFFIRMED.

7

FILED

MAY 14 2019

MOLLY C. DWYER, CLERK

Davis v. WSDSHS, No. 18-35073 U.S. COURT OF APPEALS

CALLAHAN, Circuit Judge, concurring in part and dissenting in part;

I concur in the determination that we have jurisdiction to review the legal

question of whether, assuming the facts as offered by Davis, the defendants are

entitled to qualified immunity. However, I would find that even accepting the facts

as offered by Davis, the defendants are entitled to qualified immunity.

In Patel v. Kent Sch. Dist., 648 F.3d 965, (9th Cir. 2011), we explained that

the state-created danger exception rested on two requirements. First, “the

exception applies only where there is ‘affirmative conduct on the part of the state

in placing the plaintiff in danger.’” Id. at 974 (quoting Munger v. City of Glasgow

Police Dept., 227 F.3d 1082, 1086 (9th Cir. 2000)). Second, the exception applies

only when the state acts with “deliberate indifference” to a “known or obvious

danger.” Id.

Here, accepting there was a policy that both “required staff to report

suspected abuse only to designated staff or administrators” and encouraged staff to

delay reporting, this did not, in my opinion, place G.B. in a more dangerous

position than he would otherwise have been. See Munger, 227 F.3d at 1086. But

even if Davis could meet the first requirement of the state-created danger

exception, her proffered evidence does not support a finding of deliberate indifference to a known or obvious danger. In Patel, we described this as requiring

“a culpable mental state,” a recognition of an “unreasonable risk and actually

intend to expose the plaintiff to such risks without regard to the consequences to

the plaintiff,” and as knowledge “that something is going to happen” but ignoring

the risk and exposing the the plaintiff to it. Patel, 648 F.3d at 974 (citation and

internal quotation marks omitted). In Paulek v. Savage, 836 F.3d 1117, 1127 (9th

Cir. 2016), we reiterated that “gross negligence is not enough.” Despite the

majority’s persuasive presentation of the “facts” from Davis’ perspective, they do

not provide an adequate basis for finding that any of the defendants had the

requisite “culpable mental state” toward G.B. Accordingly, I would find that

defendants are entitled to qualified immunity.