Crosetto et al v. Gillen

Filing 73

MEMORANDUM AND ORDER granting 50 Motion for Partial Summary Judgment; finding as moot 62 Motion to Strike. See Order for details. Signed by District Judge Monti L. Belot on 7/7/2011. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

THE ESTATE OF B.I.C., et al.,
Plaintiffs,
v.
LINDA GILLEN, Individually and as
an agent of the Kansas Social and
Rehabilitation Services,
Defendant.

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CIVIL ACTION
No.

10-1017-MLB

MEMORANDUM AND ORDER
Before the court are the following:
1.

Defendant’s amended motion for partial summary judgment on
issue of qualified immunity and memorandum in support
(Docs.

50,

51),

plaintiffs’

response

(Doc.

54),

and

defendant’s reply (Doc. 61).
I.

COMPLAINT
Plaintiffs bring one danger creation claim on behalf of B.I.C.

and two loss of familial association claims for Larry and Mary
Crosetto and C.S.C. each pursuant to 42 U.S.C. § 1983 and the
Fourteenth

Amendment.

Plaintiffs

further

allege

a

state

law

negligence claim citing to 28 U.S.C. § 1367.1
1

Plaintiffs have not delineated which paragraphs in their
complaint are relevant to each specific claim.
It appears that
paragraph 19 is relevant only to plaintiffs’ state law claim as one
cannot be liable under § 1983 for negligence. Paragraph 19 reads:
The defendant was grossly negligent in failing to
investigate the allegations surrounding the care and
treatment of B.I.C. and in failing to remove B.I.C. from
the home. The defendant voluntarily and affirmatively
undertook to monitor the situation existing with B.I.C. and
this action by an agent of SRS led other agencies which

Plaintiffs allege that defendant Linda Gillen individually and
in her official capacity created the danger which resulted in B.I.C.’s
death by failing to protect and prevent the continuous physical abuse
of B.I.C.

Defendant, claiming qualified immunity and other defenses,

seeks summary judgment on plaintiffs’ federal claims and discretionary
declination of supplemental jurisdiction over their state claim.
II.

SUMMARY JUDGMENT STANDARD
The rules applicable to the resolution of this case, now at the

summary judgment stage, are well-known and are only briefly outlined
here.

Federal Rule of Civil Procedure 56(c) directs the entry of

summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c).

An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.

Adamson v. Multi Community Diversified

Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

When confronted

with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."
477 U.S. 242, 250 (1986).

Anderson v. Liberty Lobby, Inc.,

If so, the court cannot grant summary

could have protected B.I.C. to defer to the SRS. This
undertaking was a specific duty owed by the defendant to
B.I.C.
-2-

judgment.
III.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

FACTS
Many of the facts are controverted, some unnecessarily, because

the court views all controverted facts along with all favorable
inferences in the light most favorable to plaintiffs.

See Hall v.

United Parcel Serv., No. Civ. A. 992467-CM, 2000 WL 1114841, at *5 (D.
Kan. July 31, 2000) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998)).

To the extent relevant, the factual

disagreements between the parties will be noted.
Plaintiffs Larry and Mary Crosetto (“the Crosettos”) are the
grandparents of C.S.C., a minor. B.I.C. was their granddaughter. For
the majority of 2006, B.I.C. lived with the Crosettos except weekends.
In August 2006, B.I.C.’s mother left Randy Coons, B.I.C.’s father, and
moved into the Crosettos’ home.

B.I.C.’s mother died on August 9,

2007 and Coons removed B.I.C. from the Crosettos’ home on August 18.
B.I.C. continued to stay with the Crosettos on several weekends and
at times when Coons did not have a babysitter.
In Fall 2007, the Crosettos began noticing bruising on B.I.C.
That September, the Crosettos’ babysitter, Allison Horner, observed
that B.I.C. had a black eye, a busted lip with stitches and random
bruising on her body.

Ms. Horner called SRS’s child protection

hotline and described B.I.C.’s injuries. Ms. Horner provided B.I.C.’s
name and birth date and told the hotline that B.I.C.’s father was
Randy Coons and her brother was C.S.C.
On September 17, a Unified School District 445 (“USD 445")
employee, Bev Mashburn, filled out a social work referral form for
C.S.C.

(Doc. 54-5).

Ms. Mashburn detailed in her referral that Mr.
-3-

Crosetto described B.I.C. as always having bruises and recently had
stitches in her lip.

Ms. Mashburn also stated that Mr. Crosetto was

trying to maintain an amicable relationship with Coons and while Mr.
Crosetto was not trying to make unsubstantiated allegations, he wanted
to make sure his grandchildren were living in a safe environment.
On October 7, Mr. Crosetto took B.I.C. to the hospital emergency
room.

However, the Crosettos did not contact SRS because they were

in the process of creating a conservatorship for B.I.C. and C.S.C.
At around the same time, Mr. Crosetto called the fire department
and inquired whether he could force a fire inspection.
Greg Allen said that he would look into the matter.

Fire Chief
Chief Allen

inspected the exterior of Coons’ house and left a note requesting
permission from Coons to inspect the inside.

Neither Coons nor

Melissa Wells, Coons’ live-in girlfriend, responded to Chief Allen’s
request and apparently, Chief Allen let the matter drop.
On November 5, defendant responded to a Protection Report Center
(“PRC”)2 report from USD 445 regarding a 2-inch by 2-inch red mark on
the right side of C.S.C.’s face that required icing down.

Wells

admitted to getting upset with C.S.C. and slapping him across the
face.

Defendant investigated the report, but found any allegation of

abuse to be unsubstantiated.

Defendant met with Coons and Wells for

approximately 45 minutes and implemented a safety plan.
On November 6, Mr. Crosetto called defendant but received no
answer or returned phone call.

Mr. Crosetto wanted to discuss his

concerns regarding the bruising on C.S.C. and B.I.C.

2

Also referred to as the SRS hotline.
-4-

He also tried

unsuccessfully to call defendant on November 14, 15, and 16.
On or around November 14, Coffeyville Police Department School
Resource Officer Ed Rutherford investigated whether Coons and Wells
were using drugs.
On November 20, Mr. Crosetto got in contact with defendant.
discussed the incident with C.S.C.

He

Defendant stated that a case had

been opened and that she had been to Coons’ home to investigate.3

Mr.

Crosetto brought up B.I.C.’s bruising and that he suspected Wells was
using drugs.

Defendant responded that these allegations were “police

matters and refused to discuss them.”

(Doc. 54 at 11).4

On December 10, Mr. Crosetto called defendant to discuss B.I.C.’s
injuries because he believed that they were escalating.

According to

Mr. Crosetto, defendant stated that “her job was to preserve the
family unit and not to investigate child abuse.”5

(Doc. 54 at 11).

Mr. Crosetto scheduled an appointment with defendant to discuss her
duties.
On December 12, Mr. Crosetto asked school officials for help but
was told by USD 445 social worker Duane Powell that SRS was handling

3

The parties disagree as to whether defendant falsely stated
that she had been in the home. Defendant claims that she attempted
to visit Wells’ home, but was unsuccessful. It is uncontroverted that
she did not go inside.
4

Defendant controverts that Mr. Crosetto discussed B.I.C.’s
bruising and that she told Mr. Crosetto that his concerns were police
matters. Because the court resolves all disputed facts in favor of
plaintiffs, the court assumes that these statements were made.
5

Defendant controverts this statement of fact.
-5-

the situation.6
On December 23, the Crosettos were at church when their family
physician, Allen Gillis, D.O., saw B.I.C.’s facial bruises.
Gillis recommended that B.I.C. be examined.

Dr.

The next day, Mr.

Crosetto took B.I.C. to Chan Han, M.D. for examination.

Based upon

his findings, Dr. Han called the police and sent a letter to the SRS
office.

Dr. Han requested SRS to investigate the situation and get

back to him.

However, Dr. Han received no response.

On December 24, while B.I.C. was being examined by Dr. Han,
Officer Rutherford observed B.I.C. and spoke with Mr. Crosetto.

Mr.

Crosetto told Officer Rutherford that SRS had an open case on C.S.C.
and B.I.C. and that SRS was having difficulty contacting Coons and
Wells at their home.

Officer Rutherford stated that he would be

filing a Child in Need of Care case after contacting Montgomery County
officials.
Officer

Rutherford

left

a

telephone

message

for

defendant

regarding the doctor visit to Dr. Han, but received no response.
After Officer Rutherford completed his report, he sent it to SRS, the
Juvenile County Attorney’s office and the truancy officer.

Officer

Rutherford assumed that SRS would investigate and handle the matter
after it received his report.
On December 28, the Crosettos went to their appointment with
defendant.

Mr. Crosetto tried to give defendant a CD of pictures

6

Defendant argues in her motion to strike (Doc. 62) that
Powell’s statement is inadmissible hearsay pursuant to Fed. R. Civ.
P. 56(c)(2) and should not be considered. Defendant is technically
correct. However, see Fed. R. Evid. 102. The court will consider
Powell’s statement in support of plaintiffs’ claim that they believed
SRS was handling the situation with C.S.C. and B.I.C.
-6-

portraying B.I.C. injuries, but she refused to accept it and told Mr.
Crosetto that the CD was a police matter.
amiably.

The meeting did not end

The Crosettos believed that defendant had some animus

against them and was not going to protect B.I.C. and C.S.C. until one
of their grandchildren was killed. (Doc. 54 at 12).7
On January 17, 2008, the Coffeyville Police Department responded
to a 911 call and found B.I.C. unresponsive in Wells’ care.
had head trauma and bruises on her body.

B.I.C.

She was hospitalized at the

Coffeyville Regional Medical Center and then later flown to the St.
Francis Medical Center in Tulsa, Oklahoma.

There, doctors discovered

“a brain bleed from a blow to the head and brain damage resulting from
Shaken Baby Syndrome.”

(Doc. 1 at 4).

On January 20, B.I.C. died

from cerebral anoxia and cranial trauma caused by being shaken.
Following B.I.C.’s death, Director Camie Russell for the Abuse,
Neglect and Exploitation Unit of the Kansas Attorney General’s Office
(“AG office”) reviewed approximately 75 reports from the Montgomery
County SRS office, 12 of which were assigned to defendant. During her
investigation, Ms. Russell concluded that defendant failed to do
several

of

her

responsibilities

when

she

reviewed

the

report

concerning C.S.C. including: interview or observe other children
living in the home, report to law enforcement that Wells admitted
hitting

C.S.C.

across

the

face,

interview

additional

material

caretakers, and complete follow up on reports by law enforcement.
7

Defendant controverts the plaintiffs’ statement regarding the
substance of the meeting. According to defendant, the meeting was to
discuss grandparents rights and Mr. Crosetto thought defendant was
“understanding.” (Doc. 67 at 4). Again, because the court resolves
all disputed facts in favor of plaintiffs, the court assumes that the
statements were made.
-7-

(Doc. 54-11 at 4). Ms. Russell also determined that defendant handled
C.S.C. and B.I.C.’s case differently than the other 11 cases assigned
to her.

Specifically, defendant was more “hands on” with her other

cases and “hands off” with Coons’ children.
IV.

(Doc. 54-2 at 3).

VIOLATION OF PLAINTIFFS’ FOURTEENTH AMENDMENT RIGHTS
The court elects to determine whether plaintiffs’ allegations,

if true, state a claim for a violation of a constitutional right. See
Romero, 45 F.3d at 1475 (relying in part upon Siegert v. Gilley, 500
U.S. 226, 231-32 (1991)).

Determining whether a plaintiff has stated

a claim for a constitutional violation is purely a legal question.8
See id. Despite the inevitable factual issues that become intertwined
in the characterization of a plaintiff’s precise constitutional
claims, this court cannot avoid the legal issue by simply framing it
as a factual question. See Archer v. Sanchez, 933 F.2d 1526, 1530 n.7
(10th Cir. 1991).
“The Due Process Clause of the Fourteenth Amendment provides that
‘[n]o State shall ... deprive any person of life, liberty, or
property, without due process of law.’”

DeShaney v. Winnebago County

Dept. of Social Services, 489 U.S. 189, 194-95, (1989). However, this
right does not require state actors to protect citizens from violence
by a private actor.

Id. at 195.

In DeShaney, the United States Supreme Court stated that “[i]f
the Due Process Clause does not require the State to provide its
citizens with particular protective services, it follows that the

8

Similarly, whether the right was clearly established at the
time the incident occurred is also a legal question. See Romero, 45
F.3d at 1475 (relying in part upon Siegert v. Gilley, 500 U.S. 226,
231-32 (1991)).
-8-

State cannot be held liable under the Clause for injuries that could
have been averted had it chosen to provide them.” Id. at 196-197. The
Court focused on the fact that the child was not in the State’s
custody.
Petitioners concede that the harms Joshua suffered occurred
not while he was in the State's custody, but while he was
in the custody of his natural father, who was in no sense
a state actor. While the State may have been aware of the
dangers that Joshua 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. Under these circumstances, the
State had no constitutional duty to protect Joshua.
DeShaney, 489 U.S. at 201.
The same is true here.

B.I.C. was never in defendant’s or the

state’s custody but instead remained in the custody of her father.
However, the Tenth Circuit recognizes two exceptions to DeShaney’s
holding: (1) the special relationship doctrine9 and (2) the danger
creation theory.

Rost ex rel. K.C. v. Steamboat Springs RE-2 School

Dist., 511 F.3d 1114, 1126 (10th Cir. 2008).

Plaintiffs claim that

the danger creation exception applies.
Danger Creation Claim
Plaintiffs allege that defendant created the danger that lead to
B.I.C.’s death. A state actor can be liable for acts of a third party

9

“The special relationship doctrine comes into play when the
state [has] assume[d] control over an individual sufficient to trigger
an affirmative duty to provide protection to that individual....”
Briggs v. Oklahoma ex rel. Oklahoma Dept. of Human Services, 472 F.
Supp. 2d 1304, 1313 (W.D. Okla. 2007) (internal quotation marks
omitted).
Plaintiffs do not make a “special relationship” claim.
-9-

when she created the danger that caused the harm.

Briggs v. Johnson,

No. 07-6037, 2008 WL 1815721, *3 (10th Cir. Apr. 23, 2008).

Tenth

Circuit cases establish a six-part test which a plaintiff must meet
to establish a danger creation claim:
A danger creation claim must meet a six-part test: (1) the
state entity and individual actors created the danger or
increased the plaintiff's vulnerability to the danger; (2)
plaintiff was a member of a limited and specifically
definable group; (3) defendant's conduct put plaintiff at
substantial risk of serious, immediate, and proximate harm;
(4) the risk was obvious and known; (5) defendants acted
recklessly in conscious disregard of that risk; and (6)
such conduct, when viewed in total, shocks the conscience.
(Citations omitted). Regarding the necessary culpability,
the Due Process clause only protects against “deliberately
wrongful government decisions rather than merely negligent
government conduct.” Uhlrig v. Harder, 64 F.3d 567, 573
(10th Cir. 1995).
Rost, supra.
Plaintiffs must show that defendant’s affirmative acts created
or increased the danger to B.I.C. See Currier v. Doran, 242 F.3d 905,
919 (10th Cir. 2001) (“The danger creation theory ... focuses on the
affirmative actions of the state in placing ... [an individual] in
harm's way.”). However, “[i]t is not enough under the danger creation
theory to show that a state actor may have been aware of the danger
with which an individual was confronted; a plaintiff must show that
the state actor played a part in the creation of the danger or
rendered that individual more vulnerable to the danger.” Briggs v.
Oklahoma ex rel. Oklahoma Dept. of Human Services, 472 F. Supp. 2d
1304, 1314 (W. D. Okla. 2007).
Although some cases discuss each factor of the test, another
approach is to go directly to factor (6).
F.3d 567, 572-76 (10th Cir. 1995).

See Uhlrig v. Harder, 64

Therefore the court will consider

-10-

whether defendant’s conduct is conscience shocking.
A.

Shock the Conscience

The

“conscience

shocking”

factor

is

a

key

feature

of

a

substantive due process claim and the Tenth Circuit has established
three principles which are relevant in the court’s evaluation of such
claims:

“(1) the general need for restraint; (2) the concern that §

1983 not replace state tort law; and (3) the need for deference to
local policy decisions impacting public safety.” Currier, 242 F.3d at
920.

Defendant’s “conduct must be ‘viewed in total,’ and thus the

cumulative impression of [defendant’s] conduct should be considered.”
Id.
The parties have given little, if any, attention to these
principles in their submissions. The “restraint” principle means that
federal courts must be parsimonious when analyzing a set of facts
alleged to demonstrate a substantive due process violation.
second principle is self-explanatory.

The

Here, plaintiffs have made a

negligence claim under Kansas law which can be resolved in state
court.

There is no evidence in the record relating to the third

principle.
the

duties

Kansas has several statutes and regulations pertaining to
of

the

Secretary

of

the

Department

of

Social

Rehabilitation Services insofar as they pertain to children.

and
See,

e.g., KSA 39-708(r), the Revised Code for Care of Children, KSA 382201, 2202 and 2223 and KAR 30-46-10.

However, the court cannot

identify in the statutes and regulations any language which deals with
local policy decisions impacting public safety to which this court
must give deference.
To shock the conscience of federal judges requires a high level
-11-

of outrageousness.
2002).

Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th Cir.

The court observed in Uhlrig v. Harder, 64 F.3d 567, 574

(10th Cir. 1995):
the plaintiff must demonstrate a degree of outrageousness
and a magnitude of potential or actual harm that is truly
conscience shocking. The level of conduct required to
satisfy this additional requirement cannot precisely be
defined, but must necessarily evolve over time from
judgments as to the constitutionality of specific
government conduct. We do know, however, that the “shock
the conscience” standard requires a high level of
outrageousness, because the Supreme Court has specifically
admonished that a substantive due process violation
requires more than an ordinary tort and that merely
allowing unreasonable risks to persist ... is not
necessarily conscience shocking.
(Citing Collins v. City of Harker Heights Tex., 503 U.S. 115, 128
(1992)).

Even permitting unreasonable risks to continue is not

necessarily conscience shocking. Ruiz, 299 F.3d at 1184 (internal
citations and quotations omitted.)
be deliberate:

A state defendant’s actions must

“This deliberateness requirement can be satisfied by

demonstrating ‘an intent to place a person unreasonably at risk,’
which has been defined as when a state actor ‘was aware of a known or
obvious risk that was so great that it was highly probable that
serious harm would follow and he or she proceeded in conscious
disregard and unreasonable disregard of the consequences.’” Kuyper v.
Board

of

County

Commissioners

of

Weld

County,

Colo.,

No.

09-

cv-00342-PAB-MEH, 2010 WL 1287534, *8 (D. Colo. Mar. 30, 2010).
The parties have not spent a lot of time on the conscience
shocking factor.
helpful.
1998).

Cases involving police scenarios are not especially

See, e.g., Radecki v. Barela, 146 F.3d 1227 (10th Cir.
Instead, the court has reviewed at least some of the Tenth

Circuit cases which involve actions of a social worker in an effort
-12-

to find guidance about conduct considered to be conscience shocking.
In Currier v. Doran, the abused children were in the custody of
the state after being removed from their mother’s home. The defendant
social workers were considering the child’s father for placement.
Social worker Doran was aware of the father’s history of financial
irresponsibility and that the father said he would have difficulties
taking care of the children due to his work schedule.

When it came

time to go before the court to consider the father for placement,
social worker Doran did not tell the court about father’s missed child
support payments or his work schedule.
The court placed the children with their father.

Afterwards,

social worker Doran noticed bruising on one child’s cheek during
visits.

The children’s mother told social worker Doran that the

father and his girlfriend were abusing the children.

Social worker

Doran determined that abuse was in the home and removed the children,
but the children were later returned to father’s home based on a
supervisor’s orders.
There were other signs of abuse.

The children had bite marks.

The father admitted to biting one of the children when he claimed they
were wrestling but the little girl said that the children were bitten
as a form of punishment. She also told a different social worker that
she was spanked with a belt.
A guardian ad litem made a report that children would be subject
to further abuse if they remained in the home.

The children’s mother

also made reports of abuse, but was instructed by the social worker
to quit making such reports because it was traumatizing the children.
The Tenth Circuit found that social worker Doran’s conduct could
-13-

be conscience shocking:
In light of the initial information Doran had about
Vargas' financial irresponsibility, and in light of the
numerous bruises and allegations of abuse, Doran's failure
to investigate the bruises and allegations and his
subsequent responsibility for the court order granting
Vargas legal custody could be conscience shocking,
depending, of course, on further context as provided by
discovery.
Id. at 920.10
In Briggs v. Johnson, No. 07-6037, 2008 WL 1815721, (10th Cir.
Apr. 23, 2008) the defendant social worker investigated a report of
child abuse by the child’s mother and placed the child in custody of
the state.

The child’s paternal grandmother was appointed to act as

the child’s guardian.

After some time, the social worker approved

unsupervised visits by the mother but there was evidence that the
mother was again abusing child.

The abuse continued over the course

of the unsupervised visits with the mother.
The Tenth Circuit found that the complaint alleged sufficient
facts such that the defendant agency and social worker’s conduct in
discouraging reports of abuse and failing to investigate evidence of
abuse

could

developed.

be

conscience

shocking

2008 WL 1815721 at 5.

after

the

facts

were

fully

The Circuit found that no reasoned

justification or policy consideration supported such conduct.

Id.

In Kuyper v. Board of County Commissioners of Weld County, Colo.,
supra, the plaintiffs served as foster parents and were concerned with
fostering male children. Specifically, plaintiffs did not want a male
foster child with a history of sexual misconduct.

10

The defendant

Defendants initially filed motions for summary judgment but,
for the reasons explained in the Tenth Circuit’s opinion (242 F.3d at
911), the district court converted them to motions to dismiss.
-14-

social

workers

were

responsible

for

sharing

special

behavioral history with potential foster parents.

needs

and

The social workers

were aware that plaintiffs had three young girls in their home and
assured plaintiffs that I.G. had no history of sexual misconduct.
Approximately nine days later, after plaintiffs had fostered I.G., one
of

their

daughters

claimed

that

I.G.

had

sexually

abused

her.

Plaintiffs later learned that I.G. did have a history of sexual
misconduct.
The district court denied a motion to dismiss because the
complaint alleged that “the [defendants] affirmatively lied to the
[plaintiffs] in order to ease the placement of a child with a history
of sexual misconduct in the plaintiffs' home.”

Id. at 9.

The court

found that this affirmative conduct could be conscience shocking after
development of the facts.
Perhaps the most which can be taken away from these cases is that
a social worker’s conduct, even conduct as disturbing as that in
Currier v. Doran, can be conscience shocking, depending on all the
facts.

Here, presumably all the facts have been developed.

Some

facts are disputed but there is no claim that additional factual
development is needed.
So,

what

sort

of

conduct

has

been

found

not

to

meet

the

conscience shocking test? In Robbins v. Oklahoma, 519 F.3d 1242 (10th
Cir. 2008), an eight month-old girl died from injuries suffered at her
daycare.

Prior to placing the girl at this daycare, the defendant

social workers told plaintiffs that the daycare was their only option
due to their finances and need for subsidized care.

Id. at 1246.

The court held that there was no danger creation claim on the
-15-

basis that the social workers failed to revoke the daycare’s license.
Likewise, plaintiffs failed to allege sufficient facts that the social
workers acted affirmatively in any manner to give plaintiffs the
impression that the daycare was a safe place for their daughter.

Id.

at 1251-52.
In Ruiz v. McDonald, supra, the Tenth Circuit affirmed the
dismissal of a complaint.
daycare.

A child died as a result of abuse at a

The defendant social worker failed to conduct a background

and insurance check on the daycare and its owners.

The Circuit

distinguished Ruiz from Currier and noted that failing to conduct an
investigation,

even

conscience shocking.

though

the

omission

was

negligent,

was

not

299 F.3d at 1185.11

In Pierce v. Delta County Dept. of Social Services, 119 F. Supp.
2d 1139, 1152 (D. Colo. 2000), the defendant agency received numerous
reports that the children were being abused by their mother’s live-in
boyfriend.

The agency assigned a social worker to investigate who

determined that reports were unfounded and believed the situation to
be nothing more than a custody dispute.
The district court found, after viewing the facts in favor of

11

Referring to Currier, the court states: “We held that the
plaintiffs had alleged facts sufficient to show that the social
worker's conduct “shocked the conscience.” Id. at 920.” This might
be a misstatement. The quote at page 920 of Currier, in pertinent
part, is: “. . . Doran's failure to investigate . . . could be
conscience shocking, depending, of course, on further context as
provided by discovery.” Currier was affirmed, in part and reversed,
in part and there are no reported later opinions which shed light on
whether Doran’s conduct ultimately was found, as a matter of law, to
be conscience shocking.

-16-

plaintiffs, that they had not sufficiently alleged a danger creation
claim because the social worker simply failed to investigate reports
of child abuse and did not affirmatively place the children in their
abusive situation or increase the danger in any way.

Id. (“[T]he

state actors did not disturb the status quo by removing the children
and then placing them in an abusive environment, or removing the
children from an abusive environment and then returning them to that
environment, but, rather, simply failed to remove the children from
the abuser in the first place, courts have been reluctant to accept
the danger-creation theory as a means of circumventing DeShaney.”).
The

common

denominator

of

the

danger

creation/shock

the

conscience cases involving social workers appears to be affirmative,
deliberate, outrageous conduct coupled with unreasonable disregard to
the consequences of the conduct.

Merely failing to investigate

reports of abuse and/or to remove a child from an abusive home is not
conscience shocking, let alone a constitutional violation under Tenth
Circuit case law.

On the other hand, when a social worker or agency

discourages reports of abuse, or fails to tell someone about a history
of abuse or financial irresponsibility, these affirmative acts,
coupled with knowledge of abuse “could be” sufficient to meet the
conscience shocking standard, at least on a motion to dismiss.
In the present case, finding all disputed facts in favor of
plaintiffs,12 there is evidence of the following facts:
•

Defendant knew of Wells’ history of abuse of her own son.

12

It is disputed whether defendant actually knew of Wells’
history of abuse and allegations of abuse.
It is also disputed
whether defendant received the Officer Rutherford’s and Dr. Han’s
reports.
-17-

•

Ms. Horner called the SRS hotline and reported injuries to
B.I.C.’s face in fall 2007.

•

There were allegations of drug use by Wells.

•

USD 445 officials, Officer Rutherford and Dr. Han sent
reports to the Coffeyville SRS office detailing their
suspicions of abuse to C.S.C. and B.I.C.

•

Wells admitted to striking C.S.C. across the face in anger
which left an mark that required ice.

•

Officer Rutherford left a message for defendant personally
to return his call.

•

Mr.

Crosetto

had

several

conversations

with

defendant

informing her of the abuse and stating that he had pictures
of B.I.C.’s injuries.
•

Defendant told Mr. Crosetto that her responsibility was to
preserve

the

family

unit

as

opposed

to

investigating

reports of child abuse.
•

Defendant

refused

to

accept

photographs

of

B.I.C.’s

injuries and told Mr. Crosetto that they were a police
matter subsequent to Officer Rutherford mailing his report
to her office.
•

Ms. Russell’s determined that defendant handled the Coons
children’s case differently than she handled her other
cases.

•

Ms.

Russell

concluded

through

her

investigation

that

defendant failed to do the following:13

13

Ms. Russell does not state specifically
violated any statute or agency policy.
-18-

that

defendant

•

note the history of prior SRS involvement with
alleged perpetrator when she was assigned the
report for investigation.

•

update

face

sheet

CFS

1000

to

include other

children in the home or complete Section I or II
of Risk Assessment(short form) 2030C during the
course of the investigation.
•

take photos of the child to document the injury.

•

interview or observe the other children living in
the home at the time.

•

request or complete a home visit; the site where
the alleged abuse occurred.

•

report to law enforcement at time of assignment
for investigation.

•

report to law enforcement when Wells confessed to
intentionally hitting 5 year old child in the
face.

•

initiate

interviews

caretakers

during

of

additional significant

the

course

of

the

investigation.
•

acknowledge

or

address

additional concerns

provided by Mr. Crosetto through his multiple
contacts with defendant directly.
•

complete follow up on reports by law enforcement.

•

follow up or update the safety plan for the
family.

(Doc. 54-11 at 4).
-19-

Even if some of these facts are not ultimately proved or are
explained away, defendant’s cumulative conduct is hard to explain or
justify.

The overall impression is of a social worker who, for

whatever reason, failed to do her job, with tragic consequences.

But

it is just this overall impression which dooms plaintiffs’ danger
creation claim.

To be actionable, defendant’s overall conduct must

be decidedly affirmative and when the aforesaid facts are considered,
whether

separately

appears.

or

individually,

little

affirmative

conduct

Rather, defendant basically did nothing in the face of

evidence that would cause any thinking person, not merely someone
supposedly trained, to recognize that B.I.C. and C.S.C. were in peril.
Sadly, this is a common feature of the cited cases involving social
workers who inexplicably fail in their responsibilities to children.
And each case, just like this case, presents facts which are both
tragic and avoidable.

But bad as they are, they do not demonstrate

conduct which can be deemed to “shock the conscience” under precedent
to which this court must adhere.
Accordingly, defendant’s motion for summary judgment is sustained
insofar as plaintiffs’ danger creation claim regarding B.I.C. is
concerned.
Familial Association Claims
Disposition of the danger creation claim does not automatically
compel summary judgment on the familial association claims.

As the

court observed in Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (10th
Cir. 2003):
While the “shocks the conscience” standard applies to
tortious conduct challenged under the Fourteenth Amendment,
County of Sacramento v. Lewis, 523 U.S. 833, 848–51, 118 S.
-20-

Ct. 1708, 140 L. Ed. 2d 1043 (1998), it does not exhaust
the category of protections under the Supreme Court's
substantive due process jurisprudence, or eliminate more
categorical protection for “fundamental rights” as defined
by the tradition and experience of the nation.
A plaintiff states a valid substantive due process claim under
the

Fourteenth

Amendment

by

satisfying

either

conscience or the fundamental right standards.

the

shocks

the

Substantive due

process cases should be examined under both standards.

The court is

satisfied that its discussion of the danger creation claim on behalf
of B.I.C. applies generally to the familial association claims because
if defendant’s conduct did not violate B.I.C.’s Fourteenth Amendment
right to life, then it could not be conscience shocking behavior which
would violate the grandparents’ and sibling’s right of familial
association, which is based on the Fourteenth Amendment’s concept of
liberty.

Griffin v. Strong, 983 F.2d 1544, 1547 (1993).

It would be

hard to argue that the right to liberty is greater than the right to
life.
The Tenth Circuit has outlined the analysis which must be taken
under the so-called “fundamental rights strand” of the substantive due
process doctrine.
We undertake the fundamental rights analysis in two steps.
First, we must “careful[ly] descri[be] ... the asserted
fundamental liberty interest.” Glucksberg, 521 U.S. at 721,
117 S. Ct. 2302 (internal quotation omitted)14; see also
Chavez, 538 U.S. at 775-76, 123 S. Ct. 1994 (noting
plaintiff must put forth “a ‘careful description’ of the
asserted fundamental liberty interest for the purposes of
substantive due process analysis; vague generalities ...
will not suffice.”). Second, we must decide whether the
asserted liberty interest, once described, is “objectively,
deeply rooted in this Nation's history and tradition, and

14

Washington v. Glucksberg, 521 U.S. 702 (1997).
-21-

implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if they were
sacrificed.” Id. (internal quotations omitted) ...
Seegmiller v. LaVerkin City, 528 F.3d 762, 769 (10th Cir. 2008).
Seegmiller notes that the court has recognized fundamental liberty
interests to consist of those relating to family life, among others.
Id. at 770; see also Starkey ex rel. A.B. v. Boulder County Social
Services, 569 F.3d 1244, 1253 (10th Cir. 2009) (“‘[The] right of
familial association [of plaintiffs, a mother and child,] is included
in

the

substantive

due

process

right

of

freedom

of

intimate

association[.]’”)
The court is satisfied that the Tenth Circuit would recognize
loss of familial association claims of grandparents and siblings of
one who is deceased as falling within the category of a fundamental
liberty interest.

See, generally, Suasnavas v. Stover, No. 05-5171,

2006 WL 2458678, *9 (10th Cir. Aug. 25, 2006) and cases cited
therein.15

That is not to say, however, that plaintiffs’ claims in

this case can survive summary judgment.
The familial association claims in plaintiffs’ complaint are:
17.

The defendant acted with malice and an animus
toward the Crosettos that resulted in the death
of B.I.C. The defendant apparently held a grudge
against the Crosettos based upon actions they had
taken years prior involving the adoption of their
daughter Angela.
Plaintiffs believe that the
defendant failed to act to protect their
grandchildren because of this pre-existing
grudge.

18.

The defendant intentionally interfered with the

15

These cases dispose of defendant’s barely-asserted qualified
immunity defense. Defendant has cited no authority stating or even
suggesting that grandparents or siblings’ liberty interest rights were
not clearly established prior to 2007.
-22-

plaintiffs’ familial relationship with the
decedent.
As a result of the defendant’s
conduct, they lost their constitutional rights of
familial association with B.I.C.
In their response to defendant’s motion, plaintiffs have attached
an affidavit of Larry Crosetto expressing his opinion that defendant
“hated” him and his wife because of an adoption dispute which occurred
in the mid-1980s and because defendant attempted, unsuccessfully, to
place C.S.C. in a foster home after B.I.C.’s death.

Plaintiffs also

have attached the affidavit of Camie Russell, the author of the
Attorney General’s report, supra, who opines that her explanation for
defendant’s conduct is “... that she had some animus or ill will
toward the Crosettos and elected to do nothing to protect the
children.”

(Doc. 54-2 at 3-4).

The Tenth Circuit requires more than mere statements or acts by
a defendant to satisfy a plaintiffs’ burden to show a substantive due
process violation.

Instead, the Tenth Circuit requires a balancing

of liberty interest against the relevant state interest.
Strong, supra at 1547.

Griffin v.

The state has important generalized interests

in investigating cases of alleged child abuse, about which there can
be no dispute.

Balanced against this interest is the family members’

right of association, which also is substantial.

Finally the Tenth

Circuit looks “... to the facts surrounding the parties’ interests.
Not every statement or act that results in an interference with the
rights of intimate association is actionable.

Rather to rise to the

level of a constitutional claim, the defendant must direct his or her
statements or conduct at the intimate relationship with knowledge that
the statement or conduct will adversely affect that relationship.

-23-

Trujillo, 768 F.2d at 1190.16”

Id. at 1548.

In this case, there is no evidence that defendant’s statements
or conduct during B.I.C.’s life imposed any undue burden to the
Crosettos’ or C.S.C’s rights to associate with B.I.C.

Defendant did

not remove B.I.C. from the Crosettos’ or father’s home, or otherwise
take action to restrict their access to B.I.C., thus preventing or
interfering with their relationships with B.I.C.

On the contrary, as

previously discussed at some length, plaintiffs’ claims are premised
on defendant’s failure to act, e.g. to prevent abuse by Coons and/or
Wells.
Cir.

See PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1199 (10th

2010).

The

court

acknowledges

plaintiffs’

assertion

that

defendant’s conduct was motivated by her “hatred” of the Crosettos,
but there is no evidence or reasonable inference that her “hatred” was
directed at their relationship with B.I.C. with defendant’s knowledge
that her statements or conduct would adversely affect the relationship
so as to result in B.I.C.’s death.

Stated more succinctly, there is

no evidence that defendant wanted B.I.C. to die to satisfy her alleged
hatred of the Crosettos. As already observed, the facts of this case,
at least as presented in the motion papers, would appear to be
sufficient to get the case to a state court jury on plaintiffs’
negligence claims.

Keeping in mind the general need for restraint,

they are not sufficient, however, to make out a jury case of a
violation of plaintiffs’ substantive due process right to familial
association and summary judgment is granted on that claim.

16

Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th
Cir. 1985).
-24-

Supplemental Jurisdiction
The court has disposed of all of plaintiffs’ federal claims.
“The

exercise

of

supplemental

jurisdiction

is

therefore

discretionary.” Woodberry v. Bruce, No. 04-3100, 2004 WL 2106558, *2
(10th Cir. Sept. 22, 2004).
The court declines to exercise supplemental jurisdiction over
plaintiffs’ remaining state negligence claim.
(“The

district

courts

may

decline

to

28 U.S.C. § 1367(c)(3)
exercise

supplemental

jurisdiction over a claim under subsection (a) if ... the district
court

has

dismissed

jurisdiction[.]”).
prejudice.
V.

all

claims

over

which

it

has

original

Plaintiffs’ state claim is dismissed, without

Defendant’s motion to strike (Doc. 62) is moot.

CONCLUSION
Defendant’s amended motion for summary judgment (Doc. 50) is

granted.
A motion for reconsideration of this order is not encouraged.
The standards governing motions to reconsider are well established.
A motion to reconsider is appropriate where the court has obviously
misapprehended a party's position or the facts or applicable law, or
where the party produces new evidence that could not have been
obtained through the exercise of reasonable diligence. Revisiting the
issues already addressed is not the purpose of a motion to reconsider
and advancing new arguments or supporting facts which were otherwise
available for presentation when the original motion was briefed or
argued is inappropriate.
1992).

Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan.

Any such motion shall not exceed three pages and shall

strictly comply with the standards enunciated by this court in Comeau
-25-

v. Rupp.

The response to any motion for reconsideration shall not

exceed three pages.

No reply shall be filed.

IT IS SO ORDERED.
Dated this

7th

day of July 2011, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

-26-