Greenup et al v. Morris et al

Filing 60

MEMORANDUM DECISION AND ORDER. THE COURT HEREBY ORDERS The Clerk of the Court shall DISMISS Heritage Home Health, LLC, and Angela Young and Defendants in this case pursuant to the Parties' stipulation (Dkt. 58 ). Heritage Home Health's Motion (Dkt. 29 ) is DISMISSED as MOOT. In like manner, Morriss Motion for joinder re: causation (Dkt. 33 ) is DISMISSED as MOOT. Defendants Elizabeth Fehringer, Elizabeth Loosli, and Carole Jeffries are also dismissed from this case based upon Pl aintiffs concession (Dkt. 40, at 18). Plaintiff Darce Bishop is DISMISSED for lack of standing. Morriss Motion for Summary Judgment (Dkt. 28) is GRANTED in PART and DENIED in PART as outlined above. The Motion is granted as to Plaintiffs' federa l claim. The Motion is denied in that the Court will not exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. Those claims are DISMISSED WITHOUT PREJUDICE. The State Defendants' Motion for Summary Judgment (Dkt. 30 ) is GRANTED. The parties Motions for Leave to File Excess Pages (Dkts. 39 , 46 ) are GRANTED. The Court will enter a separate judgment in accordance with Federal Rule of Civil Procedure 58. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GREENUP ET AL,
Case No. 4:19-cv-00243-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
MORRIS ET AL,
Defendant.

I. INTRODUCTION
This case revolves around the death of minor Justice Bishop on July 3, 2017. Dkt.
1. Plaintiffs Danielle Greenup and Andrew and Darce Bishop allege a federal claim under
42 U.S. § 1983, and two claims under Idaho state law: a wrongful death claim, and a claim
for intentional infliction of emotional distress. Id. Currently pending before the Court are
Defendant McKenzie Morris’s Motion for Summary Judgment1 (Dkt. 28), and Defendants
Russell Barron, Joel Corrington, Elizabeth Fehringer, Christopher Freeburne, Lisa
Hettinger, Carol Jeffries, Dave Jeppesen, Elizabeth Loosli, Caprice Miller, Rachel Peace,
Brian Plowman, David Taylor, Lyndsey Walls, and Lori Wolff’s (hereinafter “State

Corey Morris (McKenzie’s husband) was initially listed as a defendant in this case but passed away after
the commencement of this suit. He is, therefore, dismissed as a defendant in this case. The Court notes
Plaintiffs have not moved to replace Corey Morris as a defendant with his estate. See Fed. R. Civ. P. 25.

1

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Defendants”) Motion for Summary Judgment (Dkt. 30).2
The Court held oral argument on August 13, 2021, and took the matter under
advisement. Upon review, and for the reasons set forth below, the Court GRANTS in part
and DENIES in part Morris’s Motion for Summary Judgment, and GRANTS the State
Defendants’ Motion for Summary Judgment.
II. BACKGROUND
A. Factual Background
Plaintiffs Danielle Greenup and Andrew Bishop are the natural parents of minor
Justice Bishop, and Plaintiff Darce Bishop is Justice’s paternal grandmother. Dkt. 28-1, at
1. Justice suffered throughout her life from Short Bowel Syndrome, a life-threatening
condition which required a substantial amount of medical attention and ongoing care, “the
absence of which would place the child in grave harm.” Dkt. 1, at 6.3
In November 2016, the State of Idaho removed Justice from Danielle and Andrew’s
custody after her doctors expressed concern that her parents had not sought emergency
medical attention after noticing Justice had an infection. Dkt. 30-3, at 3. Justice was
eventually placed with foster parents—the Morrises. On July 2, 2017, while in the custody
of the Morrises, Justice developed a fever and complained of nausea, vomiting, and

Defendant Heritage Home Health, LLC, also filed a Motion for Summary Judgment (Dkt. 29). However,
as will be explained below, the parties subsequently stipulated to dismiss Heritage Home Health.
Accordingly, its Motion for Summary Judgment is DISMISSED as MOOT. In addition, because the parties’
stipulation was filed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the Court need not take
any action; the Clerk of the Court will simply dismiss Heritage Home Health and Angela Young as
defendants.

2

3

For example, if Justice ever exhibited a fever, she was to receive medical attention as soon as possible.
Dkt. 50-1, at 8.

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diarrhea that appears to have started a few days prior (June 30, 2017). Id. Justice’s condition
deteriorated that day to the point that the Morrises sought urgent hospitalization. Dkt. 1, at
8. Justice was initially hospitalized at Bingham Memorial Hospital in Blackfoot, Idaho.
Greenup and Andrew Bishop were turned away from seeing Justice at Bingham Memorial,
purportedly by the Morrises. Soon after, Justice was transported by life flight to Primary
Children’s Hospital in Salt Lake City, Utah, where she passed away on July 3, 2017, from
complications related to her Short Bowel Syndrome. Id. Greenup and Andrew Bishop were
able to see Justice before she passed away.
B. Procedural Background
On July 1, 2019, Plaintiffs filed their Complaint against the Morris Defendants; the
State Defendants; Heritage Home Health, LLC; and Angela Young (a nurse with Heritage
Home Health, LLC). Dkt. 1. Following discovery, Morris filed a Motion for Summary
Judgment. Dkt. 28. Subsequently, the State Defendants filed a Motion for Summary
Judgment. Dkt. 30. The same day, Heritage Home Health and Angela Young filed a Motion
for Summary Judgment. Dkt. 29. Prior to the hearing on the motions, however, Plaintiffs
agreed to dismiss defendants Angela Young and Heritage Home Health. See Dkt. 58. And
even though the Court will not definitely rule on Heritage Home Health’s Motion for
Summary Judgment, its argument regarding causation, contained in its Motion for
Summary Judgment (Dkt. 29), were joined by both the State Defendants and Morris. Dkts.
31, 33. Thus, the Court will address the topic in due course.
For reasons discussed in detail below, the Court GRANTS the State Defendants’
Motion and GRANTS in PART and DENIES in PART Morris’s Motion. Because it grants
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Morris’s Motion as to the federal claims, the Court also declines to exercise supplemental
jurisdiction over the remaining state claims.
III. LEGAL STANDARD
I. Summary Judgment standard
Summary judgment is appropriate where the moving party can show that, as to any
claim or defense, “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court must enter
summary judgment if a party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal
purposes of the summary judgment rule “is to isolate and dispose of factually unsupported
claims or defenses.” Id. at 322. It is not “a disfavored procedural shortcut,” but is instead
the “principal tool[] by which factually insufficient claims or defenses [can] be isolated
and prevented from going to trial with the attendant unwarranted consumption of public
and private resources.” Id. at 327.
“The mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986) (emphasis in original). Material facts are those “that might affect the
outcome of the suit under the governing law.” Id. at 248. Summary judgment is not
appropriate “if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id.
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The Court’s role at summary judgment is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249. The Court does not make credibility determinations at this stage of the
litigation, as such determinations are reserved for the trier of fact. Hanon v. Dataproducts
Corp., 976 F.2d 497, 507 (9th Cir. 1992). In considering a motion for summary judgment,
the Court must also “view[] the facts in the non-moving party’s favor[.]” Zetwick v. Cty. of
Yolo, 850 F.3d 436, 441 (9th Cir. 2017).
However, the Court need not accept allegations by the non-moving party if such
allegations are not supported by sufficient evidence. Anderson, 477 U.S. at 249. Instead,
the nonmoving party “must go beyond the pleadings and by its own evidence and ‘set forth
specific facts showing that there is a genuine issue for trial.’” Far Out Productions, Inc. v.
Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (quoting Fed. R. Civ. P. 56(e)); Keenan v. Allan,
91 F.3d 1275, 1279 (9th Cir. 1996) (noting the nonmoving party must “identify with
particularity the evidence that precludes summary judgment”). “If the evidence is
colorable, or is not significantly probative, summary judgment may be granted.” Anderson,
477 U.S. at 249–50 (cleaned up).
IV. ANALYSIS
A. Defendant Morris’s Motion for Summary Judgment (Dkt. 28)
1. Whether Plaintiff Darce Bishop has standing
As a threshold matter, Morris asserts Darce Bishop, Justice’s paternal grandmother,
does not having standing to pursue claims against any defendant in this matter. Dkt. 28, at
12–14. This is so, she contends, because Justice’s natural parents are still alive, and because
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Darce Bishop was not dependent on financial support or services from Justice. Id. at 13
(citing Idaho Code § 5-311). Plaintiffs responded to this argument by incorporating their
response to the Motion for Summary Judgment filed by the State Defendants (Dkt. 40)—
who also argued Darce does not have standing—wherein they concede Darce does not have
standing to pursue a wrongful death claim, but assert she, nonetheless, still has her own
“independent claim for violations of her substantive due process rights . . . .” Dkt. 40, at 3.
First, the Court agrees that Darce indeed does not have standing to bring a wrongful
death claim. Idaho Code § 5-311 outlines that only heirs of the deceased, as defined by that
statute4, are allowed to bring a wrongful death claim. Because Darce Bishop has made no
claim that she fits this statutory definition, she is not an “heir” as defined in Idaho Code §
5-311. Accordingly, she lacks standing to bring a state law claim for wrongful death.
Similarly, Darce Bishop lacks standing to bring a § 1983 claim. For starters, federal
law does not specifically provide for the survival of civil rights actions under § 1983 upon
the death of the person whose rights were allegedly violated. Robertson v. Wegmann, 436
U.S. 584, 589 (1978). And again, even if there was some type of “survivorship” provision
at play here, Darce is not an heir or representative of Justice’s and cannot bring claims on
her behalf.
In addition, it appears this claim has morphed to some degree. Originally, Darce
was bringing a § 1983 claim on behalf of Justice. As noted, however, such is not allowed.

Idaho Code § 5-311 defines an heir as (a) a person entitled to succeed to the decedent’s property under §
15-1-201; (b) a person who is the decedent’s spouse, child, stepchild, or parent; or (c) the putative spouse
of the decedent.  

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Apparently realizing this, Plaintiffs pivot and now argue Darce’s own constitutional rights
were violated because she wasn’t free to associate with, or care for, Justice. Dkt. 40, at 4,
8. First, a changed theory this late in the litigation prejudices Defendants. What’s more, the
rights of grandparents are separate and distinct from the rights of parents. See Miller v.
California, 355 F.3d 1172 (9th Cir. 2004). Second, Darce has not provided any evidence
to suggest the State owed her any constitutional duty. Any duty owed was to Justice and/or
her parents—but not Darce. Absent a duty owed, Darce cannot articulate a cognizable
constitutional right she had that was violated by Defendants’ actions under § 1983.
Ultimately, the Court finds Darce Bishop lacks standing to bring any state or federal
claims, and, therefore, grants this portion of Morris’s Motion (and the joining parties’
motions on the same topic). Darce Bishop is DISMISSED as a Plaintiff for lack of standing.
2. Whether Foster parents should be considered state employees
In her Motion for Summary Judgment, Morris asserts she and Mr. Morris were
employees of the Idaho Department of Health and Welfare (“IDHW”). Dkt. 28-1, at 3–11.
She asserts that “[i]f the Court agrees [they are] employees of the [IDHW] at all times
relevant in Plaintiffs’ Complaint, and that they were acting within the course and scope of
their employment in the care of Justice Bishop, then Defendants Morris may not be held
personally and individually liable.” Id. at 3–4. This would be so, Morris argues, because
she would be immune from liability under Idaho Code § 6-904A. Id. at 11–12.
Idaho Code § 6-904A states that:
A governmental entity and its employees while acting within the course and
scope of their employment and without malice or criminal intent and without

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reckless, willful, and wanton conduct as defined in section 6-904C, Idaho
Code, shall not be liable for any claim which:
1. Arises out of the assessment or collection of any tax or fee.
2. Arises out of injury to a person or property by a person under
supervision, custody or care of a governmental entity or by or to a
person who is on probation, or parole, or who is being supervised as
part of a court imposed drug court program, or any work-release
program, or by or to a person receiving services from a mental health
center, hospital or similar facility.
Idaho Code § 6-904C, in turn, provides the following definitions:
1. “Gross negligence” is the doing or failing to do an act which a reasonable
person in a similar situation and of similar responsibility would, with a
minimum of contemplation, be inescapably drawn to recognize his or her
duty to do or not do such act and that failing that duty shows deliberate
indifference to the harmful consequences to others.
2. “Reckless, willful and wanton conduct” is present only when a person
intentionally and knowingly does or fails to do an act creating unreasonable
risk of harm to another, and which involves a high degree of probability that
such harm will result.
Thus, in Morris’s view,5 in order for her to prevail on summary judgment, the Court
must find that she was an IDHW employee. If the Court makes such a finding, it would
next turn to whether Morris is immune from liability under § 6-904A, i.e. that she did not
act with malice or criminal intent and did not act recklessly, willfully, and wantonly.
The threshold inquiry, however, is whether Morris—acting as Justice Bishop’s
foster parent—qualifies as an IDHW employee.
The Court begins by noting that no Idaho State Court has addressed whether a foster

As the Court will explain below, Morris should actually not want to be classed as an employee of the State
because § 1983 claims cannot be levied against individual persons except in rare circumstances.

5

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parent should be considered an employee of the State of Idaho or the IDHW.
More broadly, however, the Idaho Supreme Court has outlined that, whether a
person is an employee of the State is based upon the States’ “right to control the time,
manner and method of executing the work, as distinguished from the right to require certain
definite results.” Idaho Industrial Commission v. Sky Down Diving, LLC., 462 P.3d 92, 99
(Idaho 2020). In Sky Down Diving, the Idaho Supreme Court referred to a four-factor
balancing test it has utilized in the past in determining whether the right to control exists:
(1) direct evidence of the right to control the employee; (2) the method of
payment, including whether the employer withholds taxes; (3) whether the
employer or worker furnishes ‘major items of equipment;’ and (4) whether
there is a right to terminate the employment at will and without liability.6
Id.
As for the first factor, Morris argues that, again, while there is no direct evidence in
support of her proposition, the “Idaho Legislature certainly has contemplated this issue”
and cites to Idaho Code § 6-904 as evidence of such.7 Dkt. 21-1, at 5. The Court sees no
such evidence in this section supporting Morris’s conclusion.
Morris also argues that Idaho Code § 6-902(4) and its definition of who qualifies as
an employee supports her position. That section defines employees as:
[A]n officer, board member, commissioner, executive, employee, or servant of a
governmental entity, including elected or appointed officials, and persons acting

Plaintiffs point out that Sky Down Diving “specifically relates to considerations under the Idaho
Workmen’s Compensation Act statutes and case law” and calls into question its applicability in this case.
Dkt. 51, at 5. Upon review, the Court sees no reason why the Idaho Supreme Court’s “right to control” test
should not apply to the case at hand.

6

7

Section 6-904A discusses exceptions to government liability. And while there is language in that section
denoting a person who is working “under [the] supervision, custody or care of a government entity” is
immune from suit, there is nothing in that section defining employees, let alone referencing foster parents.

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on behalf of the governmental entity in any official capacity, temporarily or
permanently in the service of the governmental entity, whether with or without
compensation, but the term employee shall not mean a person or other legal entity
while acting in the capacity of an independent contractor under contract to the
governmental entity to which this act applies in the event of a claim.
Idaho Code § 6-902(4). Again, however, Morris reads too much into this definition.
These Idaho Code Sections defining and discussed employees aside, Morris
contends that IDHW is charged with the legal custody of a child and with ensuring the
child’s health and safety. Part of that task includes placement of children in appropriate
foster care situations. Dkt. 28-1, at 5–6. Morris points out that IDHW has “numerous
regulations which foster parents must comply with and abide by in order to maintain
their license.” Id. at 6. Morris argues that all of these rules and regulations illustrate that
their “supervision and care of Justice Bishop was strictly supervised and controlled by
the [IDHW].” Id. at 7.
Although it is true that IDHW has the responsibility to oversee several factors of
a foster child’s wellbeing and safety—and to ensure placement of foster children with
competent foster parents—these facts do not equate to strict regulation or control of
how Morris conducted herself as a parent. In addition, the Court declines to speculate
or confirm what was going through the Idaho legislature’s mind when it passed certain
laws. In this case, the Court takes the same view as the Supreme Court of Washington
in DeWater v. State:
The State sets forth certain standards for licensing a foster home and requires
general compliance with certain standards, but it does not control the manner
and means of operating the home.
….

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[T]here is no employee/employer relationship primarily because there is no
right to control the daily actions of the foster parent and thus no ability to
supervise or interfere with the day-to-day interaction between a foster parent
and those working in the foster home. The State could revoke a foster
parent’s license and remove foster children from the home, but it would have
no right to otherwise “control” the actions of the foster parent. A foster parent
is therefore not a state employee.
921, 1059 P.2d (Wash. 1996). Indeed, “[i]n the foster care setting it is the foster parent
…. [w]ho stands in the parental role, not [the state].” Sheikh v. Choe, 128 P.3d 574, 581
(Wash. 2006).
In addition, the Court notes that the weight of the caselaw overall supports a
finding that foster parents are not employees of the state. See Becerra v. Gonzales, 32
Cal. App. 4th 584, 591 (1995) (finding that foster parents, while paid by the state, are not
employees “of the state or of any other public entity”); Mitzner v. State, 891 P.2d 435, 440
(1995) (same); Kern v. Steele County, 322 N.W.2d 187, 189 (1982) (same); District of
Columbia v. Hampton, 666 A.2d 30, 40 (1995) (same); Simmons v. Robinson, 409 S.E.2d
381, 383 (1991) (same); Nichol v. Stass, 735 N.E.2d 582, 587 (2000) (same); Stanley v.
State Industries, Inc., 630 A.2d 1188 (1993); I.H. v. County of Lehigh, 610 F.3d 797 (2010)
(same). Accordingly, the Court finds the first factor weighs against a finding that Morris
was an employee of the State.8
The Court also finds that the second Sky Down Diving factor, “the method of
payment, including whether the employer withholds taxes”, weighs against Morris’s

Morris points the Court to a Connecticut case, Hunte et al. v. Blumenthal, Attorney General, et al., 680
P.2s 1231 (Conn. 1996) in support of its argument. The relevant Connecticut statute at issue in that case,
however, was very different from the Idaho statutes at issue here rendering the case inapplicable.

8

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request. Morris does not mention this factor in her Motion and offers only minimal support
in her Reply. Dkt. 52. Without citing authority, Morris argues that the second factor “is
used to ferret out whether one is a volunteer or not,” and that it supports her position
because “they had to disclose the sum paid [to them] on their tax returns for payment of
taxes” and the State pays for foster children’s “food, supplies, medication, insurance, etc.”
Id. at 2–3. Outside of these claims, however, there is no evidence of the payments made to
Morris, and it is undisputed that the State of Idaho does not withhold taxes or other
withholdings from the payments to foster parents.9 Accordingly, this factor also weighs
against Morris.
The third Sky Down Diving factor is whether the employer or worker furnishes
“major items of equipment.” Morris devoted a single passing line to this element stating
that “while the Morris[es] may have had their own home and furniture, they would not
have been able to care for the State’s ward if the State did not provide the medical
equipment, supplies, and medicine.” Dkt. 52, at 3. Neither party delves into what
constitutes “major items of equipment.” It is undisputed the Morrises provided the house
Justice lived in, the car in which she was transported, and all other household items. They
also controlled the bulk of Justice’s daily routine and activities.10 Without more, this factor
is neutral.

The State of Idaho reimburses foster parents “for the cost of caring for each child based on the foster care
room and board rate according to that child’s age.” See Frequently Asked Questions, IDAHO DEPARTMENT
HEALTH
AND
WELFARE,
https://healthandwelfare.idaho.gov/services-programs/childrenOF
families/child-protection-and-foster-care/frequently-asked-questions (last visited Nov. 18, 2021).
9

10

Morris argues there are IDAPA regulations that cover items such as sleeping arrangements,
transportation, clothing, and other needs of the foster child. That may be true, but those IDAPA provisions

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Lastly, the Court must determine whether there is a right to terminate the
employment at will and without liability. Morris sums up her argument on this point by
noting that “Plaintiffs cannot reasonably argue that the State could not terminate the
Morris’ supervisory duties at any time.” Dkt. 52, at 3. And while it may be true that IDHW
(or the State) could terminate Morris’s duties as foster parents, that does not automatically
make her an employee.
The Court agrees with Plaintiffs that the “lack of identification of Morris as
employees of the IDHW by agreement is a critical flaw” as it relates to this argument.
Dkt. 51, at 4. As the Idaho Supreme Court has noted:
For someone to be employed to perform services in the affairs of another, the
alleged employer must expressly or impliedly agree to the creation of that
employment relationship. Because of the vicarious liability that a
governmental entity can have for the acts of its employees, a person cannot
become the employee of a governmental entity without its agreement.
Athay v. Stacey, 196 P.3d 325, 334 (Idaho 2008). Morris was never explicitly made an
employee of the IDHW. Dkt. 51, at 4–5. This cuts against her argument. Further, none of
the other hallmarks of employment are present. For example, there is no indication the
State provided insurance for Morris. Or heath care, Or retirement benefits. Indeed, as
Plaintiffs observed, the Court should be (and is) hesitant to find an implied employee
relationship that could open the door for numerous “unintended consequences.”11 Dkt. 51,
at 5.

were not in existence during the relevant timeframe. What’s more, while true that Morris had to take Justice
to various medical or legal appointments, such does not mean she lost overall control of Justice’s general
schedule.
11
The Court is not explicitly finding that foster parents could not be considered employees of the state in
which they reside. However, in Idaho, the evidence indicates Morris was not an employee of the state.

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After a careful analysis of the Sky Down Diving factors, the Court finds that the bulk
of the factors weigh in favor of finding that Morris was not an IDHW employee.
Because the Court finds Morris was not an IDHW employee, it need not analyze
whether immunity from liability under Idaho Code § 6-904A is applicable in this case.
Oddly, however, this conclusion actually helps Morris. Morris’s entire argument is
premised upon the idea that if she was an employee of the State of Idaho, she could avail
herself of Idaho’s immunity statutes. What Morris failed to realize, however, is that
because she is not an employee of the state, she cannot be held liable in a § 1983 action in
the first place.
Absent a lengthy discussion on this topic, it suffices the Court to simply reiterate
that “private citizens are not amenable to suit under 42 U.S.C. § 1983 as ‘state actors.’”
Rux v. Sarvis, 32 F.3d 572 (9th Cir. 1994) (citing Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982)). To be sure, there are limited circumstances in which a private citizen can
be sued under § 1983 such as when he or she is a “willful participant in joint activity with
the State or its agents.” United States v. Price, 383 U.S. 787, 794 (1966). That said, in this
case, Plaintiffs have not presented sufficient evidence to tie Morris to any improper stateaction nor have they established she deprived Justice of any constitutionally protected right.
Thus, although her argument was misplaced, the Court finds Morris’s non-employee status
is determinative on Plaintiff’s § 1983 claim against her.
In addition to their § 1983 claim against Morris, Plaintiffs assert two state law causes

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of action: wrongful death and intentionally infliction of emotional distress.12 In its
discretion, the Court declines to extend its jurisdiction to address these claims. Idaho State
Court is a more appropriate forum to adjudicate these remaining matters.
“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3). See also 28 U.S.C. § 1367(c) (“The
district court may decline to exercise supplemental jurisdiction over a claim [] if— (3) the
district court has dismissed all claims over which it has original jurisdiction.”). It is
appropriate for the Court to “raise the question of subject matter jurisdiction, sua sponte,
at any time during the pendency of the action.” Snell v. Cleveland, Inc., 316 F.3d 822, 826
(9th Cir. 2002). In their Complaint, Plaintiffs asserted that this Court had federal question
and supplement jurisdiction over all claims pursuant to 28 U.S.C. § 1331 and § 1367. Dkt.
24, at 3.
After granting summary judgment on Plaintiffs’ federal claim against Morris (and,
as will be explained below, because it will be granting summary judgment on all of the
State Defendants’ claims as well), this Court no longer has federal question jurisdiction. In
turn, its supplemental jurisdiction over any state law claims dissolves.
“With respect to supplemental jurisdiction in particular, a federal court has subjectmatter jurisdiction over specified state-law claims, which it may (or may not) choose to
exercise. A district court’s decision whether to exercise that jurisdiction after dismissing

Morris did not substantively argue for summary judgment on these claims. To be fair, Morris did “join”
Heritage Health’s briefs that address these state claims. Dkt. 33. That said, a single line arguing that “there
is no evidence or admissible opinions to show or suggest that any named Defendant breached a duty of care
which proximately cause[d]” Justice’s death is insufficient to support summary judgment in her favor on
these claims.
12

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every claim over which it had original jurisdiction is purely discretionary.” Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (internal citations omitted); accord Lacey
v. Maricopa Cty., 693 F.3d 896, 940 (9th Cir. 2012). See also Fichman v. Media Ctr., 512
F.3d 1157, 1162–63 (9th Cir. 2008) (“Having granted judgment on the federal claims, the
district court did not abuse its discretion in declining to exercise supplemental jurisdiction
over the state claims.”); McCoy v. Kretschmar, 890 F.2d 420 (9th Cir. 1989) (“The district
court did not abuse its discretion in declining to exercise pendent jurisdiction over the state
law claims since the federal claims were dismissed by summary judgment.”). When state
law claims are dismissed for lack of jurisdiction, dismissal should be without prejudice.
See Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (stating that
dismissal after declining supplemental jurisdiction should be without prejudice).
Here, in its discretion, the Court declines to retain jurisdiction over Plaintiffs’
remaining state law claims. The best forum for Plaintiffs’ wrongful death and intentional
infliction of emotional distress claims—including the important questions of breach,
causation, and damages—is in Idaho State Court. Therefore, the Court will dismiss
Plaintiffs’ remaining state law claims without prejudice.
II. State Defendants’ Motion for Summary Judgment (Dkt. 30)
The State Defendants bring a Motion for Summary Judgment arguing Plaintiffs’
Complaint is woefully lacking in required detail. See generally Dkt. 30. First, the State
Defendants argue Darce Bishop has no standing to bring either state or federal claims. As
discussed above, the Court finds Darce Bishop indeed does not have standing to bring any
claims in this case, which includes claims against the State Defendants. Accordingly, the
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Court grants summary judgment in favor of the State Defendants on this portion of their
Motion.
The State Defendants bring a slew of arguments in favor of their Motion. They claim
that: (1) Plaintiff’s claims against the State Defendants in their official capacity fail to state
a claim upon which relief can be granted; (2) Plaintiffs lack standing to pursue a claim
under § 1983 for prospective relief; (3) Plaintiffs have failed to present evidence of any
action taken by any specific state defendant in his or her individual capacity that deprived
Plaintiffs of their constitutional rights; (5) Plaintiffs’ state law wrongful death claim fails
as a matter of law; (6) Darce’s IIED claim fails as a matter of law; and (7) Plaintiffs have
provided no evidence to support an IIED claim against a single state defendant in his or
her individual capacity. Dkt. 30.
In Response, Plaintiffs concede several causes of action are inadequate. Plaintiffs
concede that Darce Bishop has no standing to sue under the state law wrongful death
claims. Plaintiffs also admit that they were unable to identify policies and practices by the
State Defendants that would put Plaintiffs’ other child at risk. They agree they have not
met the standing requirements and accordingly withdraw their claims against all State
Defendants that seek prospective relief.13 Plaintiffs further admit that Defendants Elizabeth
Fehringer, Elizabeth Loosli, and Carole Jeffries should be dismissed from this case.
Finally, Plaintiffs agree to dismiss their IIED claims against the State Defendants. Thus,

Plaintiffs have clarified that they are only suing state employees in their official capacity for prospective
injunctive relief. Therefore, the remainder of Plaintiffs’ claims are made against the State Defendants in
their individual capacities.

13

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the remaining claims against the State Defendants are Plaintiffs’ § 1983 claim for
prospective relief, Justice’s derivative claim under § 1983, and Plaintiffs’ state-law claim
for wrongful death.
The State Defendants’ Motion is lengthy, extremely detailed, and exhaustive. The
Court appreciates the detailed arguments. It is unnecessary, however, to deeply analyze
each of the State Defendants’ points because Plaintiffs’ Complaint does not provide
sufficient detail to prove its causes of action and the State Defendants are entitled to
qualified immunity.
A plaintiff’s complaint must contain at least some factual allegations sufficient to
plausibly suggest a defendant’s wrongdoing in order to comply with the general rules of
pleading contained in Federal Rules of Civil Procedure Rule 8. See Ashcroft v. Iqbal, 556
U.S. 662, 684, 129 S. Ct. 1937, 1952 (2009). As the State Defendants suggest multiple
times in their Motion, Plaintiffs’ Complaint and subsequent briefing contain generic
allegations with little to no support against the State Defendants—individually or
collectively.
To be liable under 42 U.S.C. § 1983 “the defendant must possess a purposeful, a
knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 576 U.S. 389, 396
(2015). Negligence is not actionable under § 1983, because a negligent act by a public
official is not an abuse of governmental power but merely a “failure to measure up to the
conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986). To be
liable of deprivation of someone’s constitutional right under § 1983, a person must do “an
affirmative act, participate[] in another’s affirmative act, or omit[] to perform an act which
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he is legal required to do . . . .” Murphy v. Hunt, 455 U.S. 478, 683 (1982).
In this case, even when construed liberally, Plaintiffs have not put forth any
evidence that any of the State Defendants violated Plaintiffs’ constitutional rights. For
example, Plaintiffs’ Complaint states that Rachel Peace and Carol Jeffries have “failed to
train and or ensure that an adequate policy was created and followed by Department
employees to protect the health of Justice Bishop.” See Dkt. 1, at ¶ 40. This statement has
no supporting evidence and lacks any detail or particularized claims against each
defendant. Also, by way of example, Plaintiffs do not allege a single act or omission
regarding State Defendant Russell Baron, and only briefly mention him in the Complaint.
Other Defendants face similarly vague allegations. Simply put, unsupported and
unsubstantiated claims appear repeatedly in Plaintiffs’ briefing, and the Court refuses to
manufacture arguments for Plaintiffs.14
Finally, even assuming arguendo that the Court found there was evidence of
improper conduct, the State Defendants are entitled to immunity under the 11th
amendment. In § 1983 actions, the doctrine of qualified immunity protects state officials
from personal liability for on-the-job conduct so long as the conduct is objectively
reasonable and does not violate clearly established federal rights. Harlow v. Fitzgerald,
457 U.S. 800, 818, (1982) (cleaned up). A state official may be held personally liable in a
§ 1983 action if he knew or should have known that he was violating a plaintiff’s clearly

The situation is similar in regard to Plaintiffs’ state law claim for wrongful death against the State
Defendants. The Court finds summary judgment is likewise appropriate on that claim as there are no facts
to support such an accusation, let alone any material facts in dispute.

14

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established federal rights. Id. True to its dual purposes of protecting state actors who act in
good faith, and redressing clear wrongs caused by state actors, the qualified immunity
standard “gives ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224,
227, (1991).
A qualified immunity analysis consists of two prongs: (1) whether the facts as
alleged by plaintiff establish a violation of a constitutional right, and (2) whether that right
was clearly established given the state of the law at the time of the alleged misconduct.
Pearson v. Callahan, 555 U.S. 223, 232 (2009), citing Saucier v. Katz, 533 U.S. 194, 201
(2001). Courts may “exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Id. at 818.
Plaintiffs in this case have not sufficiently argued that a violation of their
constitutional rights has occurred, have not presented any facts to indicate such, or shown
that the State Defendants acted with the requisite bad state of mind. Plaintiffs list a string
of “decisions” by the State Defendants “which led to Justice’s death” (Dkt. 40, at 12–14),
but never explain how those actions deprived them of any constitutional right. In like
manner, while Plaintiffs vaguely cite to some deposition testimony in their brief, they do
not actually lay out any evidence calling into question the State Defendants’ arguments
that none of them took any independent action specifically targeted at Justice that deprived
her (or the plaintiffs) of any constitutional rights.

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Plaintiffs’ conclusory allegations of deliberate indifference are insufficient to
withstand scrutiny. In order to show deliberate indifference, Plaintiffs must make “a
showing of an objectively substantial risk of harm and a showing that the officials were
subjectively aware of facts from which an inference could be drawn that a substantial risk
of serious harm existed and that either the official actually drew that inference or that a
reasonable official would have been compelled to draw that inference.” Tamas v. Dep't of
Soc. & Health Servs., 630 F.3d 833, 845 (9th Cir. 2010). “Mere negligence or lack of due
care by state officials in the conduct of their duties does not trigger the substantive due
process protections of the Fourteenth Amendment and therefore does not state a claim
under section 1983.” Woodrum v. Woodward Cty., Okl., 866 F.2d 1121, 1126 (9th Cir.
1989).
Thus, in order to raise a genuine issue of material fact—and defeat the State
Defendants’ Motion for Summary Judgment—Plaintiffs must establish that each specific
defendant committed an affirmative act, participated in another’s affirmative acts, or failed
to perform an act which he or she was legally required to do and that such act or omission
actually caused the deprivation of Justice’s due process rights. This they have not done.
In fact, State Defendants asked Plaintiffs in very pointed interrogatories what
exactly they are alleging each State Defendant did, in their individual capacity, that
injured/harmed Plaintiffs in any way. The response was virtually identical across the board:
Objection. To the extent this interrogatory is overly broad, unduly
burdensome and vague, and to the extent it calls for information not in
Plaintiffs’ possession, Plaintiffs object to the same. Without waiving said
objection, Plaintiffs refer to the general statement, their Complaint, their
other discovery responses and disclosures herein as well as the disclosures
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and discovery responses of other parties. Discovery is ongoing, and this
Defendant has neither had to respond to discovery nor been deposed; this,
Plaintiffs reserve the right to amend this response as discovery progresses.
Dkt. 30-2, at 144. Even in briefing before the Court now, Plaintiffs only generically group
various State Defendants together to support their assertions. See Dkt. 40, at 14–17.
Plaintiffs have failed to provide any evidence linking any of these State Defendants,
as individuals, to Justice in any way, aside from the fact that they were employed by the
IDHW at the time of Justice’s death. This is not enough to proceed on a claim under a §
1983 against these persons in their individual capacities.
Because Plaintiffs cannot show that State Defendant’s violated any clearly
established constitutional rights, qualified immunity applies. Anderson v. Creighton, 483
U.S. 635, 646 (1987).
Accordingly, the Court finds that no disputes of material fact remain in this case
and, therefore, summary judgment is appropriate. The State Defendants’ Motion for
Summary Judgment is GRANTED.
V. CONCLUSION
For the above stated reasons, the Court finds that Darce Bishop has no standing to
bring claims against any defendant in this case. Accordingly, the Defendants’ collective
motions on this particular issue are GRANTED.
Second, the Court finds Morris is not an employee of the State of Idaho or the
IDHW. Accordingly, the Court GRANTS Morris’s Motion as it relates to Plaintiffs’ § 1983
claim. The Court also declines to extend its supplemental jurisdiction over the remaining
claims against Morris.
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Finally, the Court finds that the State Defendants are correct in asserting that
Plaintiffs’ complaint against them is inadequate. There are also no disputed facts as to their
conduct. There is no indication they had the adequate state of mind to support a § 1983
claim. There are no factors supporting a claim for wrongful death or IIED, either. And
finally, the State Defendants are subject to qualified immunity under the Eleventh
Amendment. Therefore, Summary Judgment is appropriate in their favor.
VI. ORDER
THE COURT HEREBY ORDERS:
1. The Clerk of the Court shall DISMISS Heritage Home Health, LLC, and Angela
Young and Defendants in this case pursuant to the Parties’ stipulation (Dkt. 58).
Heritage Home Health’s Motion (Dkt. 29) is DISMISSED as MOOT. In like
manner, Morris’s Motion for joinder re: causation (Dkt. 33) is DISMISSED as
MOOT;
2. Defendants Elizabeth Fehringer, Elizabeth Loosli, and Carole Jeffries are also
dismissed from this case based upon Plaintiffs’ concession (Dkt. 40, at 18).
3. Plaintiff Darce Bishop is DISMISSED for lack of standing;
4. Morris’s Motion for Summary Judgment (Dkt. 28) is GRANTED in PART and
DENIED in PART as outlined above. The Motion is granted as to Plaintiffs’
federal claim. The Motion is denied in that the Court will not exercise
supplemental jurisdiction over Plaintiffs’ remaining state law claims. Those
claims are DISMISSED WITHOUT PREJUDICE;
5. The State Defendants’ Motion for Summary Judgment (Dkt. 30) is GRANTED.
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6. The parties’ Motions for Leave to File Excess Pages (Dkts. 39, 46) are
GRANTED.
7. The Court will enter a separate judgment in accordance with Federal Rule of
Civil Procedure 58.

DATED: November 18, 2021

_________________________
David C. Nye
Chief U.S. District Court Judge

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