Loraine Campbell v. State of Washington Department, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, JAY S. BYBEE and CLAUDIA A. WILKEN) AFFIRMED. Judge: BBF Dissenting, Judge: JSB Authoring, FILED AND ENTERED JUDGMENT. [7955848]

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 1 of 27

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,
Defendant,
and
LASHONDA MARIE MITCHELL,
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.





No. 09-35892
D.C. No.
2:08-cv-00983-JCC
OPINION



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

Case: 09-35892

20024

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 2 of 27

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.

Case: 09-35892

20026

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 3 of 27

CAMPBELL v. STATE OF WASHINGTON

COUNSEL
Shayne Christopher Stevenson and David P. Moody, Hagens
Berman Sobol Shapiro, Seattle, Washington, for the appellant.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 4 of 27

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 likewise 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.

Case: 09-35892

20028

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 5 of 27

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 significant 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 institutions. 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 birthday, 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 Justine requested the placement, which DSHS approved. Campbell 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 services at any time by contacting our Field Services Office
(FSO) Case Manager.”

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 6 of 27

20029

In 1995, the King County Superior Court ordered Campbell’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, bathing, 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 assessment 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

Case: 09-35892

20030

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 7 of 27

CAMPBELL v. STATE OF WASHINGTON

needs to supervise Justine at all times when she is in the bathtub and encourage her to use a bath pillow.” The 2006 PSP
did not include a bath-specific protocol but did include a general instruction that Justine’s caregivers should check regularly 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 accident, 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 paratransit 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.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 8 of 27

20031

When McGenty returned to the livingroom, she told Mitchell 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 bathroom, 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 paramedics 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 heartbeat, 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 anoxicischemic 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

Case: 09-35892

20032

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 9 of 27

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 constitutional rights by participating in the deprivation, or by setting 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 violated, though the facts specified that “SOLA housing is
staffed by employees of Defendant DSHS who are responsible for fostering an environment of ‘safe care.’ ” The district
court decided—and we accept—that these arguments comprise 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 Amendment 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 Defendants 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.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 10 of 27

20033

Defendants violated Justine’s due process right, then we proceed 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 199200 (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 liberty’ 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 general 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 limitation the state has imposed on the person’s freedom to act for

Case: 09-35892

20034

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 11 of 27

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] expressions 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 “special 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 statutorily required to “attend schools somewhere” the fact that the
student could be removed from school at any time “preclude[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] institution who are free to leave state custody”); Brooks v. Giuliani, 84 F.3d 1454, 1466-67 (2d Cir. 1996) (holding that an
“expressed intent to provide assistance,” without an “affirmative 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 suicide” precluded summary judgment in favor of state employees). Campbell acknowledges that Justine’s placement with
SOLA was initially voluntary but claims that it “became custodial in nature over time.” See Torisky, 446 F.3d at 446 (a

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 12 of 27

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 herself],” DeShaney, 489 U.S. at 200, and converted her voluntary custody into involuntary custody. These libertyrestricting acts were SOLA’s (1) placing locks on the doors
of Justine’s home to control her ability to leave; (2) maintaining 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 voluntarily enters state care does not transform the custodial relationship 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 impairments, Justine could not leave the SOLA home without permission from her caregivers.” This argument fails for two

Case: 09-35892

20036

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 13 of 27

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 mental 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 transformed 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. Thereafter, 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 voluntary,” 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.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 14 of 27

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 affirmative act of restrain[t]” must amount to “incarceration, institutionalization, 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 custody at the time of her accident. DeShaney, 489 U.S. at 200
(emphasis added). Accordingly, we hold that no special relationship had been created here and that the special relationship 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 Fourteenth 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. Garber, 375 F.3d 884, 891 (9th Cir. 2004). Because we find that the statecreated danger argument fails, we need not decide whether Campbell has
waived this argument.

Case: 09-35892

20038

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 15 of 27

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 96870, 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 created 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 otherwise 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 nonmoving party, which, here, is Campbell.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 16 of 27

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 statecreated danger exception requires proof of “deliberate indifference to a known or obvious danger.” Id. at 971-72 (quotation 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 consequences 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 nextdoor bathroom . . . At worst, Wilhelm committed a lapse in
judgment by allowing A.H. to quickly use the next-door bathroom 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 sponsored by private businesses, after the police decided to
“switch from a more aggressive operation plan to a more passive 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

Case: 09-35892

11/07/2011

20040

ID: 7955848

DktEntry: 32-1

Page: 17 of 27

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 Protection 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 affirmative act by the government defendants within the meaning
of the state-created danger exception, even though that decision made possible the subsequent severe and disabling beatings 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 anything 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 protective 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

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 18 of 27

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 danger 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 judgment” 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 statecreated danger. See Kennedy, 439 F.3d at 1062 (police confronting a man accused of child abuse by his neighbors without 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

Case: 09-35892

20042

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 19 of 27

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 assigning 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 Campbell’s favor. In so doing, it concludes that the state owed Justine 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. Campbell raised a triable issue of material fact as to whether the
state of Washington had a “special relationship” with Justine.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 20 of 27

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, defendants 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 judgment 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 exception” 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 himself, has placed plaintiff in the harmful path of a third party”

Case: 09-35892

20044

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 21 of 27

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 Justine’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 affirmative 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-

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 22 of 27

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 unsupervised 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 precautions necessary to mitigate the risk, the danger creation
exception applies.
B.

Special Relationship

As the majority correctly acknowledges, the special relationship 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 pre1

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 different 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 incidents 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.

Case: 09-35892

20046

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 23 of 27

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 Justine 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 indicates 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).

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 24 of 27

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 Justine 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 placement 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 voluntary. 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 individuals, like Justine, who occupy leased homes with “roommates” 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-

Case: 09-35892

20048

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 25 of 27

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 permission, 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 themselves, so their caregivers “might prevent” them from “wandering off.” The majority dismisses these facts, stating that
“what Campbell alleges were the Defendant’s libertyrestraining acts were merely part of SOLA’s efforts to ensure
Justine’s day-to-day safety and care.” Op. at 20035. A reasonable jury could view these facts differently. It would be reasonable 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 effectively become an involuntary patient).
The majority also ignores a final fact supporting Campbell’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 altogether. In this respect, Justine had fewer rights than individuals 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 schedule 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.

Case: 09-35892

11/07/2011

ID: 7955848

DktEntry: 32-1

CAMPBELL v. STATE OF WASHINGTON

Page: 26 of 27

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 involuntary. 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 custodial 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 constitutional 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 violates 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 preexisting 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

Case: 09-35892

20050

11/07/2011

ID: 7955848

DktEntry: 32-1

Page: 27 of 27

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 defendants 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 individual in danger she would not otherwise have faced.” Kennedy, 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 relationship or the danger creation doctrines. This is a case that
I would send to a jury to decide whether the state failed to discharge those duties. My sense is that the tragedy in this case
could and should have been prevented, and that the defendants should not be free from liability without a decision in
their favor by a jury.
I respectfully dissent.