Crosetto et al v. Gillen

Filing 90

MEMORANDUM AND ORDER granting 85 Motion for Summary Judgment. Signed by District Judge Monti L. Belot on 9/12/2013. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

THE ESTATE OF B.I.C., a Minor
)
Child, Deceased, LARRY F. CROSETTO,)
Individually and as Next Friend of )
C.S.C., a Minor Child, and MARY
)
LOU CROSETTO,
)
Plaintiffs,
)
)
v.
)
)
LINDA GILLEN, Individually and as )
an agent of the Kansas Social and )
Rehabilitation Services,
)
)
Defendant.
)
)

CIVIL ACTION
No.

10-1017-MLB

MEMORANDUM AND ORDER
Before the court is defendant’s supplemental motion for summary
judgment (Doc. 85). The motion has been fully briefed and is ripe for
decision.

(Docs. 87, 88).

For the reasons stated more fully herein,

defendant’s motion is granted.
Facts and Procedural History1

I.

Plaintiffs Larry and Mary Crosetto (“the Crosettos”) are the
grandparents of Brook2 and C.S.C., both minors.

For the majority of

2006, Brook lived with the Crosettos during the week. In August 2006,
Brook’s mother Angela left Randy Coons, Brook’s father, and moved into
the Crosettos’ home. Angela died on August 9, 2007, and Coons removed
Brook from the Crosettos’ home on August 18.

1

Brook continued to stay

The uncontroverted facts are largely taken from this court’s
prior order, which were not challenged on appeal, (Doc. 73) and the
Tenth Circuit’s decision in this case, Estate of B.I.C. v. Gillen, 710
F.3d 1168 (10th Cir. 2013).
2

Brook is also known as B.I.C.

with the Crosettos on several weekends and at times when Coons did not
have a babysitter.

Coons lived with his girlfriend, Melissa Wells,

who has since been found guilty of Brook's murder and claims to have
been suffering from a methamphetamine addiction at the time.
Defendant Linda Gillen has been a social worker with the Kansas
Department

of

Social

and

Rehabilitative

Services

(“SRS”)

in

Coffeyville, Kansas for the past several decades. The Crosettos claim
that defendant had intense hatred for their family, stemming from
events that occurred during their adoption of Angela in 1982.

The

Crosettos also claim that defendant knew about Melissa Wells and her
background because she had been in the custody of SRS as a child.
In Fall 2007, the Crosettos began noticing bruising on Brook.
That September, the Crosettos’ babysitter, Allison Horner, observed
that Brook 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 Brook’s injuries.

Ms. Horner provided Brook’s

name and birth date and told the hotline that Brook’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.

Ms. Mashburn detailed in her referral that Mr. Crosetto

described Brook 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 Brook to the hospital emergency
-2-

room.

However, the Crosettos did not contact SRS because they were

in the process of creating a conservatorship for Brook 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 Wells

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”)3 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 Brook

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.

3

Defendant stated that a case had

Also referred to as the SRS hotline.
-3-

He

been opened and that she had been to Coons’ home to investigate.4

Mr.

Crosetto brought up Brook’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).5

On December 10, Mr. Crosetto called defendant to discuss Brook’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.”6

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

The next day, Mr. Crosetto took

Brook 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.

4

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.
5

Defendant controverts that Mr. Crosetto discussed Brook’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.
6

Defendant controverts this statement of fact.
-4-

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

Mr.

Crosetto told Officer Rutherford that SRS had an open case on C.S.C.
and Brook 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

portraying Brook injuries, but she refused to accept it and told Mr.
Crosetto that the CD was a police matter.
amicably.

The meeting did not end

The Crosettos believed that defendant had some animus

against them and was not going to protect Brook and C.S.C. until one
of their grandchildren was killed.
On January 17, 2008, the Coffeyville Police Department responded
to a 911 call and found Brook unresponsive in Wells’ care.
head trauma and bruises on her body.

Brook had

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, Brook died from
-5-

cerebral anoxia and cranial trauma caused by being shaken.
Following Brook’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. Ms.
Russell also determined that defendant handled C.S.C. and Brook’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.

(Doc. 54-2 at 3).

This case initially was before this court when defendant filed
a motion to dismiss on qualified immunity.
Memorandum and Order of May 28, 2010.

The motion was denied by

(Doc. 20).

Discovery limited

to qualified immunity proceeded.
On July 7, 2011, this court entered an order granting defendant
summary judgment on the Crosettos’ claims of danger creation and
familial association.

(Doc. 73).

The Crosettos appealed.

The

Circuit filed a published opinion on December 19, 2012 which, after
rehearing, was withdrawn and replaced by another published opinion
filed on March 19, 2013.

The Circuit affirmed this court’s decision

on the familial association claim but reversed the decision on the
danger creation claim.

The

Circuit held that “[v]iewed in the light
-6-

most favorable to the Plaintiffs, Ms. Gillen’s refusal to accept
evidence from the Crosettos that BIC was being abused and her refusal
to help BIC based on her alleged longstanding hatred of the Crosettos
is sufficient for Plaintiffs to withstand summary judgment on the
shocks-the-conscience element.”

Gillen, 710 F.3d at 1173.

Circuit remanded the case with instructions.

The

The court is to

determine whether defendant’s conduct was affirmative, whether there
is a dispute of material fact as to the remaining five elements of the
Crosettos’ danger creation claim and, in the event the court finds a
danger creation violation, whether the right was clearly established.
Gillen, 710 F.3d at 1174-75.
II.

Summary Judgment Standard
The parties are familiar with the standards pertaining to

summary

judgment.

This

time

around,

the

parties

have

simply

supplemented their earlier motions without additional facts.

The

parties correctly recognize that whatever may be few disputed facts
at this time, they are not material to resolution of the issues
specified in the Circuit’s decision.
III.

Analysis
“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
-7-

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 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.

Brook 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 doctrine7 and (2) the danger
creation theory.

Gillen, 710 F.3d at 1173.

The Crosettos claim that

the danger creation exception applies.
Danger Creation Claim
The Crosettos allege that defendant increased the danger that

7

“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).
The Crosettos do not make a “special relationship” claim.
-8-

lead to Brook’s death.

A state actor can be liable for acts of a

third party when she created or increased the danger that caused the
harm.

Id.
The danger creation theory requires the Crosettos to first

establish affirmative conduct by defendant which increased the danger
to Brook

Id.; 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).
A.

Affirmative Acts

In discussing affirmative acts with respect to this case, the
Circuit stated as follows:
As an initial matter, a showing of affirmative
conduct and private violence are preconditions necessary
to invoking the state-created danger theory.
Gray v.
Univ. Colo. Hosp. Auth., 672 F.3d 909, 920 n. 8 (10th
Cir. 2012). Here there is no question whether BIC's death
was caused by an act of violence by a private party.
There is, however, a question as to whether there is
sufficiently “affirmative conduct on the part of the
state in placing the plaintiff in danger.” Id. at 916
(quotation and emphasis omitted). Our precedents
consistently conclude that mere negligence or inaction is
not enough. In particular, a social worker who fails to
act may be negligent but does not forfeit immunity when
there is no affirmative action. See, e.g., Robbins v.
Oklahoma, 519 F.3d 1242, 1251–52 (10th Cir. 2008) (social
worker not liable for failure to revoke a daycare's
license where no there was no affirmative act creating an
-9-

impression that the daycare would be safe); Ruiz v.
McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002) (social
worker not liable for failing to conduct a background
check of a childcare facility where no alleged
affirmative conduct).
Gillen, 710 F.3d at 1173.
In Robbins, the Tenth Circuit explained that a state actor has
no affirmative obligation to protect citizens against private actors
unless an affirmative act by the state actor incurs a “duty to
protect.”

519 F.3d at 1251.

The Crosettos identify the following

five acts which they assert are affirmative conduct by defendant:
(1) refusing to return police phone calls; (2) refusing
to accept a CD of photographs showing injuries to BIC and
her brother; (3) lying about being in the Coon’s home;
(4) telling the Crosettos the abuse of BIC and her
brother was not her issue but one for law enforcement;
and (5) claiming that allegations of abuse by Ms. Wells
were unsubstantiated.
(Doc. 87 at 8).8
Turning to the first act, Officer Rutherford made one phone call
to defendant which was not returned. Defendant contends that this was
merely a failure to act and not an affirmative act.

As the Tenth

Circuit has held, “it is important to distinguish between affirmative
conduct that creates or enhances a danger and a failure to act that
merely does not decrease or eliminate a pre-existing danger.
distinction,
progeny.”

while

subtle,

is

critical

under

DeShaney

and

This
its

Gonzales v. City of Castle Rock, 307 F.3d 1258, 1263 (10th

8

The Crosettos initially argue that this court’s order denying
defendant’s motion to dismiss is dispositive on the issue of
affirmative action. The court disagrees. The standard for a motion
for summary judgment is different than for a motion to dismiss. In
any event, the court is not bound by its earlier decision and may
reconsider its findings at any time.
Indeed, in light of the
Circuit’s remand, it must reconsider.
-10-

Cir. 2002) (overruled by Town of Castle Rock, Colo. v. Gonzales,
U.S. 748 (2005) on procedural due process issue).

545

The Crosettos do

not cite any authority to support their position that defendant’s
failure to return Officer Rutherford’s call was an affirmative act.
A failure to return a phone call, even if intentional, is not an
affirmative act.

See Robbins, 519 F.3d at 1251.

Next, the Crosettos contend that defendant refused to listen to
their allegations of abuse and told them that the matter was for
police.

The Crosettos argue that defendant’s refusal to accept the

CD and defendant’s statement that the physical abuse of Brook was a
police matter were affirmative acts.

The failure to accept evidence

of abuse or investigate allegations of abuse are not affirmative acts
because a refusal to act cannot be said to equate with the state
undertaking a duty to protect Brook

See id.

The Crosettos persist, however, that the refusals are equivalent
to the social worker’s actions in Currier.

In Currier, the state of

New Mexico removed two young children from the custody of their
mother, Devonne Juarez, and placed them in the custody of their
father, Christopher Vargas.

Vargas's physical abuse of the children

led to the death of one child.

Representatives of the children filed

suit alleging that defendant Medina, a social worker, violated the
children's substantive due process rights when she instructed Juarez
“to stop making allegations of abuse.”

242 F.3d at 921.

The Circuit

concluded that the plaintiffs' allegation sufficiently set out the
requisite affirmative conduct necessary to support a danger creation
claim

because

Medina's

alleged

conduct

“interfere[d]

with

the

protective services which would have otherwise been available” to the
-11-

children and held that the “state creates danger when it cuts off
potential sources of private aid.”

Id. at 922.

Specifically, the

Circuit held that the instructions “allegedly discouraged the mother
from reporting further evidence of abuse to either the police or CYF,
which might then have acted to rescue the children.” Id. The Circuit
acknowledged that “Medina was constitutionally free to ignore the
pleas of Juarez and offer no assistance, [but] her behavior allegedly
discouraged Juarez from seeking the help of other CYF employees or
other governmental sources of held such as the police.”

Id.

In this case, there is no evidence that defendant cut off
potential sources of aid from the Crosettos.

Defendant clearly

directed the Crosettos to contact the police. The Crosettos, however,
never contacted the police even though they admit that defendant could
not

have

removed

intervention.

the

children

(Doc. 87 at 20).

from

the

home

without

police

Unlike the allegations in Currier,

the Crosettos have not offered any evidence to support the conclusion
that

they

were

somehow

discouraged

from

reporting

additional

allegations of abuse to the police or any other governmental agency
even though the Crosettos were clearly frustrated with defendant and
her lack of response to the situation.

They contacted a doctor and

the fire chief for help but argue that a call to the police would have
been ignored because “the police figured once it made a report to SRS,
it would investigate.” (Doc. 87 at 20). The Crosettos, however, fail
to cite to evidence which would support this contention.
Next, the Crosettos assert that defendant’s

lie

that

she

investigated the Crosettos’ concern about the living conditions at the
children’s home was an affirmative act.
-12-

The Crosettos, however, fail

to cite any authority for their position.

In Gray v. Univ. of Colo.

Hosp. Authority, 672 F.3d 909 (10th Cir. 2012), the Circuit held that
the defendant’s lie of promising the family twenty-four hour care was
not an affirmative act even though the victim would not have died if
the

defendant

would

have

followed

through

with

the

promise.

Defendant’s lie in this case did not result in any affirmation that
the state would provide care or protection of Brook.

Moreover, there

is no evidence that the lie cut off other sources of aid to the
children or somehow increased the danger to Brook.
Finally, the Crosettos contend that defendant’s failure to
substantiate the November 5 slapping incident with Brook’s brother was
an affirmative act.

The Crosettos reason that the unsubstantiated

finding cut off aid because it would have “had an impact on the other
young children living at home.”

(Doc. 87 at 10).

The Crosettos,

however, have not provided any evidence or authority to support this
position.

The report provided by Camie Russell does not criticize

defendant for failing to find the allegations of abuse substantiated.
The evidence in this case is that both defendant and Brenda Blackard
staffed the allegation and determined that it was not substantiated
after reviewing certain factors.

The Crosettos have not provided any

evidence that Kansas law would require a substantiated finding of
abuse in this instance. In DeShaney, the social workers met as a team
and determined there was insufficient evidence of child abuse.

While

tragic, the Supreme Court held that the actions by the social worker
in DeShaney did not arise to a violation of constitutional rights.
A failure to substantiate abuse is not an affirmative act by
defendant resulting in a “duty to protect” by the state. Robbins, 519
-13-

F.3d at 1251.

Moreover, it did not cut off any potential aid.

Currier, 242 F.3d at 921.
Therefore,

the

court

finds

that

the

Crosettos

have

not

established any affirmative acts by defendant, a precondition to a
danger creation claim.
B.

Elements of the Danger-Creation Claim

In

order

to

succeed

on

their

danger-creation

claim,

the

Crosettos must meet all elements of the following six-part test:
(1) the charged state entity and the charged individual
actors created the danger or increased plaintiff's
vulnerability to the danger in some way; (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 or known; (5) defendants
acted recklessly in conscious disregard of that risk; and
(6) such conduct, when viewed in total, is conscience
shocking.
Gillen, 710 F.3d at 1173.

Defendant disputes all except element (2).

Even if the Crosettos could establish that defendant’s actions
were affirmative, the court nevertheless would be compelled, albeit
reluctantly, to grant summary judgment in favor of defendant because
the Crosettos have failed to establish element (1), that defendant
created or increased the danger to Brook.

The Crosettos argue that

defendant’s intentional failure to act and intervene increased Brook’s
vulnerability and resulted in her death.

Circuit authority, however,

does not provide a cause of action for a state employee’s willful
failure to act and rescue a plaintiff from a private actor. As stated
in Currier, a social worker is “constitutionally free to ignore the
pleas of [the Crosettos] and offer no assistance.”

-14-

242 F.3d at 922.

The Crosettos cite to Currier and Briggs v. Johnson, 2008 WL
1815721 (10th Cir. 2008), to support their position that the danger
to Brook was increased by defendant’s failure to listen to the
allegations of abuse or accept the CD.

Currier is distinguishable as

there was a direct instruction by the social worker not to make any
allegations of abuse which resulted in the parent being discouraged
from making future allegations of abuse.
In Briggs, the plaintiffs alleged that two defendants instructed
the grandmother to cease reporting ongoing abuse.

In affirming the

district court’s decision to deny the defendants’ motion to dismiss,
the Circuit held that the allegations were sufficient to state a
danger creation claim.

The facts in Briggs are distinguishable

because there was no direct instruction to the Crosettos to stop
making allegations of abuse.

Moreover, there is no evidence that

defendant’s conduct had an effect on the Crosettos’ actions (or
inaction).
Melissa Wells killed Brook and defendant did not place Brook in
the residence with Wells.

Nevertheless, the court doubts that any

reasonable person not obligated to follow binding legal precedent
would conclude, based on the facts presented, that defendant did not
create or increase the danger to Brook.

But under applicable law, it

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. DeShaney, 489 U.S. at 201 (“While the State
may have been aware of the dangers that Joshua faced in the free
-15-

world, it played no part in their creation, nor did it do anything to
render him any more vulnerable to them.”)
The court sees no reason to make individual findings regarding
elements (3) through (5).

At least under the facts of this case, it

is difficult to parse defendant’s conduct into each discrete element.
Most of the Circuit’s decisions don’t make an element-by-element
analysis, either.

For purposes of this order, the court will assume

that the facts, to use the Circuit’s language, would be sufficient for
the Crosettos to withstand summary judgment on elements (3) through
(5).
A brief comment on element (6) is in order.
assert

that

the

Circuit

conscience shocking.
judgment is concerned.

concluded

that

The Crosettos

defendant’s

conduct

was

It apparently did, at least as far as summary
When this court considered element (6) in its

July 7, 2011 Memorandum and Order, it devoted many pages of analysis
to the element before concluding “But bad as [the facts regarding
defendant’s conduct] are, they do not demonstrate conduct which can
be deemed to ‘shock the conscience’ under [Tenth Circuit] precedent
to which this court must adhere.”

A “shock the conscience” finding

has a ring of finality which seems inappropriate for a judge to make
unless he or she has all the facts.

At the summary judgment stage,

a court has not heard all the evidence - nor has credibility been
factored in.
To make the court’s position perfectly clear, however, he
cannot,

as

a

citizen

and

parent,

understand

defendant’s job could have acted as she did.
conduct

is

“conscience-shocking,”
-16-

it

is

how

anyone

having

Whether or not her
inexplicable

and

unprofessional and, sadly, fairly consistent with other cases before
this court involving Kansas SRS personnel.
B.

Clearly Established

When a defendant raises the defense of qualified immunity, the
plaintiff must also demonstrate to the court that the law on which the
plaintiff

relies

was

defendants' actions.

clearly

established

sufficiently

the

time

of

the

See Hilliard v. City & County of Denver, 930

F.2d 1516, 1518 (10th Cir. 1991).
was

at

clear

that

a

The plaintiff must prove the right
reasonable

official

would

have

understood that his conduct violated the right. See Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034 (1987). “Ordinarily, in
order for the law to be clearly established, there must be a Supreme
Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be
as the plaintiff maintains.” Medina v. City and County of Denver, 960
F.2d 1493, 1498 (10th Cir. 1992).
The Crosettos argue, in a footnote, that the danger creation
jurisprudence was clearly established by late 1994 and, therefore, the
law is clearly established.
however, have to do more.

(Doc. 87 at n. 3).

The Crosettos,

In Currier, the Circuit explained that the

danger creation theory as applied to social workers who place children
into dangerous living situations was clearly established.

However,

the situation concerning the defendant Medina, the social worker in
Currier who did not create the danger but affirmatively discouraged
the parent from reporting abuse, was based on a different theory of
danger creation and therefore, the plaintiffs were required to show
that it was clearly established. 242 F.3d at 924-25. Ultimately, the
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Circuit held that the allegations concerning Medina were not clearly
established.
Notwithstanding the court’s decision that the Crosettos have not
met their burden to show that Brook’s rights were violated, the
Crosettos have not established that the theory of danger creation in
this case was clearly established at the
complaint.

times alleged in the

The Crosettos essentially assert that an intentional

refusal to act and accept evidence enhanced the danger to Brook and
made her more vulnerable to Wells’ abuse.

The Crosettos cite to

Currier for the proposition that the alleged violation was clearly
established. (Doc. 87 at n. 3). The Currier case holds that a social
worker can be found to have created the danger of private abuse when
she gives an affirmative instruction to not report abuse.

This case,

however, is distinguishable. There was no affirmative instruction not
to report abuse.
police.

The instruction was to report the abuse to the

Moreover, there is no evidence that defendant would somehow

prevent the police from acting if and when the Crosettos made a report
to the police.
As stated in Currier, a social worker is “constitutionally free
to ignore the pleas of [a reporter of abuse] and offer no assistance.”
242 F.3d at 922.

While the allegations in this case suggest that

defendant may have had animus towards the Crosettos, there is no
evidence that defendant intended to harm Brook nor is there authority
holding that an intentional refusal to act results in a finding that
the social worker enhanced the danger to a plaintiff from a private
actor.
Thus, defendant is entitled to qualified immunity.
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CONCLUSION9

IV.

Defendant’s motion for summary judgment 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.

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

1992). Any such motion shall not exceed five pages and shall strictly
comply with the standards enunciated by this court in Comeau. The
response to any motion for reconsideration shall not exceed three
pages.

No reply shall be filed.

IT IS SO ORDERED.
Dated this 12th

day of September 2013, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

9

The Crosettos’ motion for a hearing is denied.
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(Doc. 89).