Davis v. Washington State Department of Social and Health Services et al
Filing
221
ORDER RE RIVERSIDE DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT Re: granting in part and denying in part 105 Motion for Summary Judgment; denying 151 Motion for Summary Judgment; denying 157 Motion for Summary Judgment. Signed by Judge Salvador Mendoza, Jr. (AY, Case Administrator)
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
1
Jan 16, 2018
2
SEAN F. MCAVOY, CLERK
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
3
4
5
BARBARA DAVIS, as Personal
Representative of the Estate of G.B.,
deceased,
6
Plaintiff,
7
No. 2:17-CV-00062-SMJ
ORDER RE RIVERSIDE
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT
v.
8
9
10
11
12
13
14
15
16
17
18
19
20
WASHINGTON STATE
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES; JENNIFER
STRUS, individually and in her official
capacity acting under the color of state
law; HEIDI KAAS, individually and in
her official capacity acting under the
color of state law; MELISSA
KEHMEIER, individually and in her
official capacity acting under the color
of state law; JAMES DESMOND,
individually and in his official capacity
acting under the color of state law;
CASSIE ANDERSON, individually and
in her official capacity acting under the
color of state law; BRINA
CARRIGAN, individually and in her
official capacity acting under the color
of state law; MAGGIE STEWART,
individually and in her official capacity
acting under the color of state law;
LORI BLAKE, individually and in her
official capacity acting under the color
of state law; SHANNON SULLIVAN,
individually and in her official capacity
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
acting under the color of state law;
SUSAN STEINER, individually and in
her official capacity acting under the
color of state law; CAMERON
NORTON, individually and in his
official capacity acting under the color
of state law; SARAH OASE,
individually and in her official capacity
acting under the color of state law;
RANA PULLOM, individually and in
her official capacity acting under the
color of state law; DONALD
WILLIAMS, individually and in his
official capacity under the color of state
law; CHRIS MEJIA, individually and in
his official capacity acting under the
color of state law; RIVERSIDE
SCHOOL DISTRICT NO. 416, a
Municipal corporation duly organized
and existing under the laws of
Washington State; JUANITA
MURRAY, individually and in her
official capacity acting under the color
of state law; ROBERTA KRAMER,
individually and in her official capacity
acting under the color of state law;
SARAH RAMSDEN, individually and
in her official capacity acting under the
color of state law; CAROLINE
RAYMOND, individually and in her
official capacity acting under the color
of state law; CHERI MCQUESTEN,
individually and in her official capacity
acting under the color of state law;
SARAH RAMSEY, individually and in
her official capacity acting under the
color of state law; TAMI BOONE,
individually and in her official capacity
acting under the color of state law;
MELISSA REED, individually and in
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
her official capacity acting under the
color of state law; ANN STOPAR,
individually and in her official capacity
acting under the color of state law;
KRISTINA GRIFFITH, individually
and in her official capacity acting under
the color of state law; WENDY
SUPANCHICK, individually and in her
official capacity acting under the color
of state law; SHERRY DORNQUAST,
individually and in her official capacity
acting under the color of state law;
GARY VANDERHOLM, individually
and in his official capacity acting under
the color of state law; ROGER PRATT,
individually and in his official capacity
acting under the color of state law;
CHRIS NIEUWENHUIS, individually
and in his official capacity acting under
the color of state law and JOHN DOES
1-50, individually and in their official
capacities acting under the color of state
law,
Defendants.
I.
INTRODUCTION
15
In August 2014, after five-year-old G.B.’s father was murdered and his
16
mother died of an apparent drug overdose, the Washington Department of Social
17
and Health Services (DSHS) placed G.B. in the care of his aunt, Cynthia Khaleel.
18
G.B. attended Chatteroy Elementary School for the 2014–15 school year. Over the
19
course of that year, G.B exhibited numerous signs of abuse and neglect, including
20
bruising and scratches on his face and head, burns, aggressive and aberrant behavior,
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 3
1
and excessive absence. On April 16, 2015, G.B. told two teachers “my mom punched
2
me in the head.” School staff did not immediately report this incident to DSHS or
3
law enforcement. That night, G.B. was beaten to death.
4
Plaintiff Barbara Davis (Plaintiff), G.B.’s grandmother and representative of
5
his estate, filed this action against DSHS and the Riverside School District, as well
6
as numerous employees of those organizations, alleging a number of state and
7
federal claims. This order addresses the Riverside Defendants’1 motions for
8
summary judgment on Plaintiff’s 42 U.S.C. § 1983 claims against (1) Riverside
9
School District Directors Chris Nieuwenhuis, Roger Pratt, and Gary Vanderholm
10
(the Directors),2 ECF No. 105; (2) Superintendent Roberta Kramer and Chatteroy
11
Elementary School Principal Juanita Murray, ECF No. 151; and (3) the Riverside
12
School District (the District), ECF No. 157.3
13
14
15
16
17
18
19
20
1
The “Riverside Defendants” refers to Defendants Riverside School District No.
416, Juanita Murry, Roberta Kramer, Chris Nieuwenhuis, Roger Pratt, Gary
Vanderholm, Wendy Supanchick, Kristina Griffith, Ann Stopar, Melissa Reed,
Tami Boone, Cheri McQuesten, Caroline Raymond, and Sara Ramsden.
2
The Directors’ motion nominally seeks dismissal of “all claims,” ECF No. 105 at
2, but their argument addresses only § 1983 liability and their reply brief requests
that the Court dismiss only the § 1983 claims against the Directors, ECF No. 140.
Accordingly, the Court does not addressing whether summary judgment is
appropriate on Plaintiff’s state-law claims against the Directors, and denies the
Directors’ motion as to the state-law claims.
3
The Riverside Defendants also seek to strike several declarations submitted by
Plaintiff. For the reasons discussed in section IV.E. of this order, these motions lack
merit and are denied.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 4
1
42 U.S.C. § 1983 creates a cause of action against those who, acting pursuant
2
to state government authority, violate federal law. To establish § 1983 liability, a
3
plaintiff must show (1) deprivation of a right secured by the Constitution and laws
4
of the United States and (2) that the deprivation was committed by a person acting
5
under color of state law. Chudacoff v. Univ. Med. Cntr. of S. Nev., 649 F.3d 1143,
6
1149 (9th Cir. 2011). Plaintiff’s underlying theory of § 1983 liability against each
7
of the defendants at issue in these motions relies on application of the state-created-
8
danger exception to the general rule that government actors have no duty to protect
9
individuals from harm caused by a third party. See DeShaney v. Winnebago Cty.
10
Dep’t of Soc. Servs., 489 U.S. 189, 196–97 (1989). The state-created-danger
11
exception applies only where there is (1) “‘affirmative conduct on the part of the
12
state in placing the plaintiff in danger,’” and (2) “the state acts with ‘deliberate
13
indifference’ to a ‘known or obvious danger.’” Patel v. Kent Sch. Dist., 648 F.3d
14
965, 974 (9th Cir. 2011) (quoting Munger v. City of Glasgow Police Dep’t, 227
15
F.3d 1082, 1086 (9th Cir. 2000); L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).
16
The Court previously concluded Plaintiff’s allegations that child-abuse and
17
neglect policies and practices in place at Chatteroy Elementary School permitted
18
and encouraged staff to report suspected abuse only to specified school officials and
19
to delay reporting to DSHS or law enforcement, accepted as true, demonstrate
20
affirmative conduct placing G.B. in danger and deliberate indifference to a known
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 5
1
or obvious danger. ECF No. 99 at 10–13. Accordingly, the principal question
2
underlying each of the motions now before the Court is whether, viewing the facts
3
in the record in the light most favorable to Plaintiff, a reasonable trier of fact could
4
conclude that child-abuse reporting policy or practice in place at Chatteroy
5
Elementary School affirmatively placed G.B. in danger and constituted deliberate
6
indifference to a known or obvious danger. The answer to that question is yes. On
7
the record before the Court, material factual questions remain concerning (1) the
8
nature of the child-abuse reporting practices employed at Chatteroy Elementary
9
School, including whether staff were required to report suspected abuse only to
10
designated staff or administrators and whether staff were encouraged to delay or
11
avoid reporting suspected abuse; (2) whether such practices affirmatively placed
12
G.B. in danger; and (3) whether adopting and implementing such practices
13
amounted to deliberate indifference.
14
Because the Directors’ only role was adopting the district-wide child abuse,
15
neglect, and exploitation policies and practices, which required immediate reporting
16
of suspected abuse, and they had no direct supervisory obligations relating to the
17
implementation of those policies and practices by district staff at individual schools,
18
Plaintiff’s § 1983 claims against the Directors must be dismissed. Murray and
19
Kramer, by contrast were directly involved with implementing the abuse-reporting
20
practices at Chatteroy Elementary School and they are not immune from liability.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 6
1
Issues of fact therefore preclude summary judgment on the § 1983 claims against
2
Murray and Kramer. Additionally, because the alleged harm here was caused by
3
District policy, practice, or custom, or by final policy makers, the District is a proper
4
§ 1983 defendant.
5
6
II.
A.
BACKGROUND
G.B.’s family history and time at Chattaroy Elementary School
7
G.B. was born in Port Angeles, Washington in October 2009. ECF No. 1 at
8
12. G.B.’s father was murdered in his home in June 2012, and his mother died of an
9
apparently drug-related heart attack two years later, in July 2014. Id. at 12–13.
10
Following the death of his mother, G.B. and his siblings became dependents of the
11
State of Washington. Id. at 13. In August, 2014, G.B. and his younger brother were
12
placed in the care of their paternal aunt, Cynthia Khaleel near Spokane, Washington.
13
Id. at 13.
14
In fall 2014 G.B. began attending Chatteroy Elementary School in the
15
Riverside School District, where he was enrolled in the Early Childhood and
16
Education Assistance (ECEAP) pre-school program. Id. at 13; ECF No. 171-3 at 3–
17
4. Because of developmental disabilities, G.B. also participated in an Individualized
18
Educational Program (IEP). ECF No. 1 at 13; ECF No. 171-3 at 7. G.B. had serious
19
difficulties with aggression, self-control, and communication, ECF No. 171-3 at 14–
20
15; ECF No. 171-12, although staff at Chatteroy Elementary indicated that he made
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 7
1
progress on these issues during his time there. ECF No. 171-3 at 14–15, ECF No.
2
171-4 at 6–7; ECF No. 171-12. He also made continual academic progress. ECF No.
3
171-12 at 5–6, 15–16. G.B. reportedly enjoyed coming to school. ECF No. 171-4 at
4
16.
5
Numerous school staff had contact with G.B. through ECEAP, IEP, and other
6
school services. Sheri Dornquast was the lead teacher in the G.B’s ECEAP
7
classroom during that school year, and Chatteroy Principal Juanita Murray was the
8
ECEAP director. ECF No. 171-3 at 3–4. Ann Stopar and Carolyn Raymond were
9
assistant lead teachers in G.B.’s ECEAP classroom. ECF No. 171-3 at 7; ECF No.
10
171-6. Christina Griffith was an IEP teacher and Melissa Reed was an IEP aid at
11
Chatteroy who worked with G.B. ECF No. 171-3 at 7. Sara Ramsden was a speech
12
pathologist who worked with children in ECEAP, including G.B. ECF No. 171-4 at
13
4. Carolyn Raymond was a psychologist who worked with ECEAP students,
14
including G.B. ECF No. 171-3 at 8. Wendy Supanchick was the school nurse, and
15
examined G.B. on at least one occasion. Id. at 8. Tami Boon and Cheri McQuesten
16
were family service coordinators. ECF No. 171-5 at 5; 171-7 at 5. A number of other
17
specialists also worked G.B. during the course of the school year. ECF No. 171-3 at
18
8.
19
During the 2014–15 school year, staff and teachers at Chatteroy Elementary
20
School observed numerous signs that G.B. may have been suffering abuse and
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 8
1
2
3
4
5
6
7
8
9
10
11
12
13
neglect:
In early October 2014, Sheri Dornquast noticed bruising on
G.B.’s forehead. ECF No. 171-3 at 20–21, 27. She took a
photograph and called Murray into the ECEAP classroom to
look at the bruising. ECF No. 171-1 at 18–20; ECF No. 171-3 at
20. Dornquast discussed G.B.’s injuries with several other staff
members, some of whom also saw G.B. and observed the
bruises. ECF No. 171-3 at 27. Murray decided not to contact
DSHS and denies suspecting that the bruises were signs of abuse.
ECF No. 171-1 at 19.
Later in October, at a pumpkin-patch field trip, Dornquast
noticed G.B. had a bandage covering his entire forehead. ECF
No. 171-3 at 20, 27. She asked Khaleel about the bandage, and
Khaleel stated that G.B. had gotten a very bad sunburn. Id. at 20.
Later, when Dornquast saw G.B. without the bandage, she
observed a pink mark and peeling skin consistent with a burn. Id.
at 28. Ramsden, Boon, Stopar, and McQuesten also remembered
seeing a burn or red inflamed area on G.B.’s forehead around
that time. ECF No. 171-4 at 13; ECF No. 171-5 at 12; ECF No.
171-6 at 6; ECF No. 171-7 at 12, 18. Dornquast told them that
Khaleel had told her it was a sunburn. ECF No. 171-4 at 13; ECF
No. 171-6 at 6. A photograph taken shortly after that incident
showed G.B. with scabs on his forehead. ECF No. 171-3 at 29;
ECF No. 171-13.
14
15
16
17
18
19
20
On November 20, 2014, Dornquast noticed bruising on G.B.’s
ears and arm. ECF No. 171-3 at 21, 32. Dornquast again
contacted Murray about G.B.’s injuries. ECF No. 171-1 at 21;
ECF No. 171-3 at 22. Dornquast asked Murray if she should
report the incident, and Murray told her she would take care of
it. ECF No. 171-3 at 22, 32. Murray asked the school nurse,
Wendy Supanchick, examine G.B. ECF No. 171-1 at 21. No
report was made to DSHS concerning this incident. Id. at 22.
Dornquast indicated that she had observed G.B. hitting his head
against things on several occassions. ECF No. 171-3 at 27.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 9
At a Christmas concert on December 10, 2014, several staff
observed bruising and scratches on G.B.’s face. ECF No. 171-4
at 12, 17. Ramsend stated that she believed these injuries were
signs of abuse. G.B. attended school for only four days in
December 2014. ECF No. 171-3 at 17–18. at 12. At this same
concert, Ramsend observed that G.B. and a sibling were left
alone in a stroller outside the school gymnasium. ECF No. 1714 at 25. This concerned her because both children were “highneeds.” Id. at 25.
1
2
3
4
5
G.B. had significant absences in December 2014 and January
2015, ECF No. 171-4 at 20, and was absent for all but three
school days in March 2015. ECF No. 171-1 at 18.
6
7
8
Only one of these incidents was reported to DSHS. After Ramsend shared her
9
concerns about the injuries G.B. had at the Christmas concert with Caroline
10
Raymond and then Tiffany Zuck, on December 12, 2014, Zuck submitted a report
11
to DSHS indicating that she believed G.B. and his siblings were being abused at
12
home. ECF No. 135-9 at 4. She reported that G.B. had multiple injuries consistent
13
with abuse and that Khaleel did not adequately supervise him. Id. at 4. Following
14
this incident, Khaleel came into the school and confronted Zuck, verbally attacking
15
her, yelling profanities, and threatening her. ECF No. 135-15 at 5; ECF No. 171-4
16
at 9–10.
17
Riverside Superintendent Kramer had a conversation with Khaleel in which
18
she told Khaleel that she could not discuss CPS reports and asked Khaleel to leave.
19
ECF No. 171-2 at 9. Kramer subsequently instructed Murray to tell Zuck that her
20
interactions were upsetting and disruptive to the family. Id. at 10. Consistent with
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 10
1
Khaleel’s request not to have further involvement with Zuck, Zuck was instructed
2
not to deal with Khaleel in the future, although Kramer does not recall specifically
3
telling Zuck that she was prohibited from having any contact with the Khaleel
4
family. Id. at 10. Zuck asserts that the District and administration told her not to have
5
contact with G.B. or his siblings. ECF No. 135-15 at 5. Zuck also asserts that Murray
6
declined to report complaints about abuse and neglect in the Khaleel home from
7
G.B.’s grandmother, Barbara Davis, because Murray suspected Davis was lying. Id.
8
at 5. Murray denies these assertions. ECF No. 171-1 at 28–29.
9
B.
G.B.’s death
10
On the morning of April 16, 2015, G.B. told Melissa Reed that “Mom
11
punched me in the head,”4 and he gesticulated to indicate a punch to the head. ECF
12
No. 171-3 at 23. Dornquast overheard this statement and asked Reed to confirm what
13
he said, which she did. Id. Dornquast asked G.B. what he had said, and he repeated
14
“punched me in the head.” Id. Dornquast denies seeing any evidence of injury or
15
that G.B. reported he was in any pain. Id. Dornquast did not believe G.B. that Khaleel
16
“punched” him, but thought she might have “popped, you know, flicked him [or]
17
something.” Id. This incident was not immediately reported to DSHS or law
18
enforcement. Id. Murray was not working on that day. ECF No. 171-1 at 24.
19
20
4
Murray stated that she was told the statement was “my mommy punched me in the
head.” ECF No. 171-1 at 25
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 11
1
Dornquast states that she would have reported the incident to Murray if she had not
2
been out of town. ECF No. 171-3 at 23.
3
On the morning of April 17, 2015, emergency medical providers arrived at
4
the Khaleel residence and discovered G.B. in an unresponsive state. ECF No. 1 at
5
13. He was taken to Sacred Heart Medical Center, where medical staff discovered
6
multiple skull fractures and traumatic injuries to his brain. Id. He died from these
7
injuries the following day. Id. at 14. The Spokane County Medical examiner
8
determined that G.B.’s cause of death was blunt force head injury, and ruled the
9
death a homicide. Id. G.B. also sustained multiple other traumas, including an
10
abdominal injury that was the result of a forceful blow. Id. Khaleel was arrested in
11
July 2015, and charged with second-degree murder. Id.
12
C.
The Riverside School District’s Board of Directors’ policymaking
authority and process
13
The School Board of Directors is the final policymaking authority for the
14
District. ECF No. 149 at 6–7. Adopted policies are “directive[s] to the
15
superintendent to work with her administrators to come up with the procedure.” Id.
16
The Directors have authority to hire and terminate the superintendent and have sole
17
oversight authority over the superintendent. Id. at 7. But the Directors do not engage
18
in administrative supervision of district operations or policy implementation. ECF
19
No. 143 at 9.
20
The Washington State School Directors Association (WSSDA) provides
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 12
1
policy services to member districts. ECF No. 149 at 4–5. These services include
2
reviewing legislative enactments and Washington Administrative Code (WAC)
3
updates and providing notifications and guidance to school districts on policy and
4
procedure implications of changes in the law. Id. The WSSDA also provides model
5
policies and procedures to all member districts. Id. at 4. Nearly all Washington
6
School Districts subscribe to WSSDA’s services, including the Riverside School
7
District. Id. at 5–6. The Riverside School District’s practice is to promptly adopt
8
WSSDA model policies without change. Id. at 6.
9
D.
District-wide child abuse, neglect, and exploitation policy
10
The District adopted the WSSDA’s model child abuse, neglect and
11
exploitation policy and procedures without change as Policy No. 3421 and
12
Procedure No. 3421P in December 2013. ECF No. 109 at 2; ECF No. 149 at 6. These
13
policies were in effect during the 2014–15 school year. ECF No. 149 at 6.
14
Policy No. 3421 provides:
15
Child abuse, neglect and exploitation are violations of children’s
human rights and an obstacle to their educational development. The
board directs that staff will be alert for any evidence of such abuse,
neglect or exploitation. For purposes of this policy, “child abuse,
neglect or exploitation” will mean:
16
17
18
19
20
A.
Inflicting physical injury on a child by other than
accidental means, causing death, disfigurement,
skin bruising, impairment of physical or emotional
health, or loss or impairment of any bodily
function;
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 13
B.
Creating a substantial risk of physical harm to a
child’s bodily functioning;
C.
1
Committing or allowing to be committed any
sexual offense against a child as defined in the
criminal code, or intentionally touching, either
directly or through the clothing, the genitals, anus
or breasts of a child for other than hygiene, child
care or health care purposes;
D.
Committing acts which are cruel or inhumane
regardless of observable injury. Such acts may
include, but are not limited to, instances of extreme
discipline demonstrating a disregard of a child’s
pain or mental suffering;
E.
Assaulting or criminally mistreating a child as
defined by the criminal code:
F.
Failing to provide food, shelter, clothing,
supervision or health care necessary to a child’s
health or safety;
G.
Engaging in actions or omissions resulting in injury
to, or creating a substantial risk to the physical or
mental health or development of a child; or
H.
Failing to take reasonable steps to prevent the
occurrence of the preceding actions.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Child abuse can include abuse by another minor and so may be included
in incidents of student misconduct.
When feasible, the district will provide community education programs
for prospective parents, foster parents and adoptive parents on
parenting skills and on the problems of child abuse and methods to
avoid child abuse situations. The district will also encourage staff to
participate in in-service programs that deal with the issues surrounding
child abuse.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 14
1
2
3
The superintendent will develop reporting procedures, including
sample indicators of abuse and neglect, and will disseminate the
procedures to all staff. The purpose is to identify and report as soon as
possible to the proper authorities all evidence of child abuse or neglect.
Staff will receive training regarding reporting obligations during their
initial orientation and every three years after initial employment.
4
5
6
7
8
9
Classified and certified staff are legally responsible for reporting all
suspected cases of child abuse and neglect. A certified or classified
school employee who has knowledge or reasonable cause to believe
that a student has been a victim of physical abuse or sexual misconduct
by another school employee will report such abuse or misconduct to the
appropriate school administrator. The administrator will report to the
proper law enforcement agency if he or she has reasonable cause to
believe that the misconduct or abuse has occurred as required under
RCW 26.44.030. Under state law staff are free from liability for
reporting instances of abuse or neglect and professional staff are
criminally liable for failure to do so.
10
11
12
Staff need not verify that a child has in fact been abused or neglected.
Any conditions or information that may reasonably be related to abuse
or neglect should be reported. Legal authorities have the responsibility
for investigating each chase and taking such action as is appropriate
under the circumstances.
13
14
15
16
17
ECF No. 109-1.
Procedure 3421P provides:
Each school principal will develop and implement an instructional
program that will teach students:
A.
How to recognize the factors that may cause people
to abuse others;
B.
How one may protect oneself from incurring abuse;
and
C.
What resources are available to assist an individual
18
19
20
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 15
who does or may encounter an abuse situation.
1
2
To facilitate such a program, staff development activities may include
such topics as:
3
1.
Child growth and development;
2.
Identification of child abuse and neglect;
3.
Effects of child abuse and neglect on child growth
and development;
4.
Personal safety as it relates to potential child abuse
and neglect;
5.
Parenting skills;
4
5
6
7
8
9
10
6.
Life situations/stressors which may lead to child
maltreatment; or
11
7.
Substance abuse.
12
13
Reporting Responsibilities
14
15
16
Staff are expected to report every instance of suspected child abuse or
neglect. Since protection of children is the paramount concern, staff
should discuss any suspected evidence with the principal or nurse
regardless of whether the condition is listed among the indicators of
abuse or neglect.
17
18
19
20
Staff are reminded of their obligation as district employees to report
suspected child abuse, and professional staff are reminded of their legal
obligation to make such reports. Staff are also reminded of their
immunity from potential liability for doing so. The following
procedures are to be used in reporting instances of suspected child
abuse:
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 16
A.
When there is reasonable cause to believe that a
student has suffered abuse or neglect, staff or the
principal will immediately contact the nearest
office of the Child Protective Services (CPS) of the
Department of Social and Health Services (DSHS).
If this agency cannot be reached, the report will be
submitted to the police, sheriff, or prosecutor’s
office. Such contact must be made within fortyeight (48) hours. Staff will also advice the principal
regarding instances of suspected abuse or neglect
and reports of suspected abuse that have been made
to state authorities or law enforcement. In his/her
absence the report will be made to the nurse or
counselor.
B.
1
A written report will be submitted promptly to the
agency to which the phone report was made. The
Report will include:
2
3
4
5
6
7
8
9
10
1.
The name, address and age of the
child;
2.
The name and address of the parent or
person having custody of the child;
3.
The nature and extent of the suspected
abuse or neglect;
4.
Any evidence of previous abuse or any
other information that may relate to
the cause or extent of the abuse or
neglect;
5.
The identity, if known, of the person
accused of inflicting the abuse.
11
12
13
14
15
16
17
18
19
20
C.
The district will within forty-eight (48) hours of
receiving a report alleging sexual misconduct by a
school employee notify the parents of a student
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 17
alleged to be the victim, target or recipient of the
misconduct.
1
2
Abuse Indicators
3
Physical abuse indicators:
4
1.
Bilateral bruises, extensive bruises, bruises of
different ages, patterns of bruises caused by a
particular instrument (belt buckle, wire, straight
edge, coat hanger, etc.);
2.
Burn patterns consistent with forced immersion in
a hot liquid (a distinct boundary line where the burn
stops), burn patterns consistent with a spattering by
hot liquids, patterns caused by a particular kind of
implement (electric iron, etc.) or instrument
(circular cigarette burns, etc.);
3.
Lacerations, welts, abrasions;
4.
Injuries inconsistent with information offered by
the child;
5.
Injuries inconsistent with child’s age; or
6.
5
Injuries that regularly appear after absence or
vacation.
6
7
8
9
10
11
12
13
14
15
16
Emotional Abuse indicators
17
1.
Lags in physical development;
18
2.
Extreme behavior disorder;
19
3.
Fearfulness of adults or authority figures; or
20
4.
Revelations of highly inappropriate adult behavior,
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 18
i.e., being enclosed in a dark closet, forced to drink
or eat inedible items.
1
2
.
.
.5
3
Physical Neglect Indicators
4
1.
Inappropriate clothing in inclement weather; or
6.
9
Poor hygiene on a regular basis;
5.
8
Lack of essential health care and high incidence of
illness;
4.
7
Inadequate supervision (unattended);
3.
6
Lack of basic needs (food, clothing, shelter);
2.
5
Abandonment.
10
11
Some Behavioral Indicators of Abuse:
12
1.
Wary of adult contact;
2.
Frightened of parents;
3.
Afraid to go home;
4.
Habitually truant or late to school;
5.
Arrives at school early and remains after school
later than other students;
6.
Wary of physical contact by adults;
13
14
15
16
17
18
19
20
5
Sexual abuse indicators are omitted because they are not relevant in this case.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 19
1
7.
Shows evidence of overall poor care;
2
8.
Parents describe child as “difficult” or “bad”;
3
9.
Inappropriately dressed for the weather—no coat or
shoes in cold weather or long sleeves and high
necklines in hot weather (possibly hiding marks of
abuse); or
10.
Exhibit behavioral extremes: crying often or never,
unusually aggressive or withdrawn and fearful.
4
5
6
7
Note: Behavioral indicators in and of themselves do not prove abuse
has occurred. Together with other indicators they may warrant a
referral.
8
9
Child abuse as defined by the statutes can be inflicted “by any person”
and may include student-on-student abuse. These cases also require
reporting to CPS, DSHS or law enforcement. Child abuse in this and
all other cases requires two elements. First, there must be injury, sexual
abuse, sexual exploitation, negligent treatment or maltreatment.
Second, there must be harm to the child’s health, welfare or safety.
10
11
12
13
ECF No. 109-2.
14
E.
15
16
17
18
19
20
Implementation of child abuse reporting policy and procedure at
Chatteroy Elementary School
Defendant Roberta Kramer was the Riverside School District superintendent
during the 2014–15 school year and was in charge of implementing district policies,
including District Policy 3421 and Procedure 3421P. ECF No. 171-2 at 5; ECF No.
195 at 3.
Defendant Juanita Murray was the Principal at Chatteroy Elementary School
during the 2014–15 school year. She reported directly to Kramer and regularly
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 20
1
discussed implementation of district policy with Kramer. ECF No. 171-1 at 16.
2
Kramer does not recall specifically discussing implementation of the District’s
3
child-abuse reporting policy with Murray prior to G.B.’s death. ECF No. 171-2 at 7.
4
Chatteroy Elementary School has a staff handbook providing guidance to
5
school staff on a number of personnel, policy, conduct, and other issues. ECF No.
6
135-6. The handbook was developed by the school without input or review by
7
Kramer. ECF No. 171-2 at 5. In the 2014–15 school year, Chatteroy Elementary
8
School’s staff handbook addressed reporting of suspected abuse or neglect as
9
follows:
10
11
12
13
ANY school personnel who has “reasonable cause” to believe that a
child is suffering injuries, suffering physical neglect, or sexual abuse,
MUST report this to the CES counselor, first, and then the counselor
will then report to the Department of Child Protective Services. ALL
CES PERSONNEL MUST BE INVOLVED IN REPORTING. IF A
CHILD IS HARMED AND AN EMPLOYEE HAD PREVIOUS
KNOWLEDGE THAT ABUSE WAS TAKING PLACE, THE
STATE CAN AND WILL TAKE YOUR CREDENTAL.
14
ECF No. 135-6 at 6. Murray updated the handbook after G.B.’s death to require staff
15
to report suspected abuse directly to DSHS rather than a school counselor. ECF No.
16
171-1 at 10.
17
Former school counselor Tiffany Zuck asserts that staff at Chatteroy were
18
encouraged “to read Riverside’s official policy as telling staff to report all suspected
19
cases of child abuse, neglect, and exploitation to ‘the appropriate school
20
administrator’ only—i.e. them—because they didn’t want DSHS to get involved.”
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 21
1
ECF No. 135-15 at 4. She explains that supervisors implemented a policy of
2
reporting to Murray, who would either call the parent or instruct the employee to
3
call the parent, and then if the problem could not be resolved, would ask Zuck to get
4
involved. Id. She also indicates that Principal Murray and Superintendent Kramer
5
established a practice of waiting up to 48 hours to report signs of abuse in order to
6
first attempt to “work it out” with parents. Id. at 5. She states she was told by Murray
7
that with regard to personally and immediately reporting suspected abuse at
8
Chatteroy to DSHS, “we don’t do that out here.” Id. at 4. Zuck indicates she believes
9
this policy was implemented by Murray and Kramer because they did not like being
10
confronted by hostile parents. Id. at 5.
11
In deposition testimony, Zuck expresses less certainty about Murray and
12
Kramer’s role in setting and implementing the described reporting procedure. She
13
explains that she cannot remember Murray or Kramer directly telling her to report
14
suspected abuse only internally. ECF No. 142-1 at 35–36, 41. Instead, she recalls
15
being told by other teachers and staff that it was the practice to report suspected
16
abuse to Murray only, and that Murray would then decide whether to make a report
17
to DSHS. Id. at 36. But she also reaffirms that she believes it was the policy and
18
practice in the school to report only to school administrators and to delay reporting
19
in order to contact parents. Id. at 39–40. She states that, in addition to being told that
20
was the practice by other staff and teachers, the practice was implied by the actions
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 22
1
and statements of other employees. Id. at 40. She also cites two examples she is
2
aware of where an employee went to Murray with an incident of suspected abuse
3
and Murray contacted the parent or directed the employee to do so rather than report
4
the incident. Id.
5
Before she was involved in this case, on March 13, 2016, Zuck submitted a
6
complaint detailing concerns with Principal Murray’s conduct. ECF No. 135-14 at
7
2–3. She alleged that Murray (1) did not want CPS called regarding students; (2)
8
prevented Zuck from having contact with students who required counseling; (3)
9
prevented implementation of a school-wide behavior plan; and (4) prevented Zuck
10
from working with neglected and abused children, including G.B. Id. She also
11
indicated that she had been aware of abuse concerning G.B. and that she was
12
concerned that serious incidents were not being properly reported to DSHS. Id. at 9–
13
10. The Northeast Washington Educational Service District investigated these
14
complaints and found insufficient evidence that Murray violated any professional
15
duties. Id. at 5.
16
Several other teachers or staff state or imply that the practice at Chatteroy
17
Elementary School was to report suspected abuse to Murray rather than directly to
18
DSHS. Sherry Dornquast states that the District’s official child-abuse reporting
19
policy was not followed at Chatteroy. ECF No. 171-3 at 10. Instead, she states that
20
the policy was “to talk to the counselor and the principal.” Id. She explains that “I
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 23
1
always went to the principal, and then the counselor would come see me. I always
2
went to [the principal] first because she was our director of ECEAP.” Id. She further
3
explains that Murray would then decide whether to report to DSHS. Id. She also
4
notes that it was Murray’s practice to talk to parents about incidents like the ones
5
involving G.B. in the fall of 2014, and she suspects that Murray talked to Khaleel
6
after the incident where G.B. exhibited bruising on his ears and arm in November
7
2014. Id. at 22.
8
Chatteroy Elementary family services specialist Cheri McQuesten also states
9
that suspected abuse would be reported to Murray, or if she was unavailable, a school
10
counselor, who would then decide whether to contact DSHS. ECF No. 171-7 at 6–
11
8. Chatteroy speech pathologist Sarah Ramsden similarly states that she would call
12
Murray first if she suspected a child was being abused, and indicates she was
13
concerned that if she reported suspected abuse directly to DSHS or law enforcement
14
it “could have jeopardized [her] relationship with Juanita Murray” ECF No. 171-4
15
at 10–11.
16
Murray denies that she expected teachers and staff to report suspected abuse
17
to her rather than directly reporting to DSHS. ECF No. 171-1 at 29. But in the only
18
report to DSHS, other than the one regarding G.B., that Murray could remember, a
19
teacher came to Murray with the suspected abuse, and Murray decided to make the
20
report to DSHS. Id. at 6. Dornquast also recalls reporting other incidents of suspected
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 24
1
child abuse to Murray. ECF No. 171-3 at 10–11. Additionally, Dornquast came to
2
Murray with each of her concerns about G.B.’s injuries. ECF No. 171-1 at 18–19;
3
ECF No. 171-3 at 19–22.
4
In this case, numerous signs of abuse and neglect of G.B. were not reported
5
to DSHS or law enforcement. ECF No. 171-1 at 17 (aggression), 20 (bruising on
6
head); 171-3 at 14 (self-harm and aggression), 22 (bruising on ears and arm), 28–29
7
(burn); ECF No. 171-4 at 14 (self-harm); ECF No. 171-10 at 1–3 (bruises and
8
statements that mother hurt him); ECF No. 171-14 (significant absences).
9
C.
Procedural History
10
Plaintiff, G.B.’s grandmother, brought this action against DSHS and the
11
Riverside School District, along with numerous employees of those agencies. ECF
12
No. 1. Her claims against the Riverside Defendants include negligence, violation of
13
G.B.’s substantive due process rights pursuant to § 1983, violation of Washington
14
mandatory reporting laws, and the tort of outrage. In June 2016, the Court denied
15
the Riverside Defendants’ motion to dismiss Plaintiff’s § 1983 claims against the
16
District, the Directors, and Murray and Kramer, but, with Plaintiff’s stipulation,
17
granted the motion to dismiss the § 1983 claims against the other individual
18
Riverside Defendants. ECF No. 99.
19
20
III.
LEGAL STANDARD
Summary judgment is appropriate if the “movant shows that there is no
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 25
1
genuine dispute as to any material fact and the movant is entitled to judgment
2
as a matter of law.” Fed. R. Civ. P. 56(a). Once a party has moved for summary
3
judgment, the opposing party must point to specific facts establishing that there
4
is a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
5
If the nonmoving party fails to make such a showing for any of the elements
6
essential to its case for which it bears the burden of proof, the trial court should
7
grant the summary judgment motion. Id. at 322. “When the moving party has
8
carried its burden under Rule [56(a)], its opponent must do more than simply
9
show that there is some metaphysical doubt as to the material facts. . . . [T]he
10
nonmoving party must come forward with ‘specific facts showing that there is
11
a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
12
475 U.S. 574, 586–87 (1986) (internal citation omitted). When considering a
13
motion for summary judgment, the Court does not weigh the evidence or assess
14
credibility; instead, “the evidence of the non-movant is to be believed, and all
15
justifiable inferences are to be drawn in his favor.” Sgt. Anderson v. Liberty
16
Lobby, Inc., 477 U.S. 242, 255 (1986). “In short, what is required to defeat
17
summary judgment is simply evidence ‘such that a reasonable juror drawing all
18
inferences in favor of the respondent could return a verdict in the respondent’s
19
favor.’” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (quoting Reza
20
v. Pearce, 806 F.3d 497, 505 (9th Cir. 2015)).
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 26
1
IV.
DISCUSSION
2
The Riverside Defendants’ primary argument in favor of summary judgment
3
on Plaintiff’s § 1983 claims is the same for the Directors, Superintendent Kramer
4
and Principal Murray, and the District—that Plaintiff fails to establish that the state-
5
created-danger exception to the general rule that a government actor has no
6
constitutional obligation to protect an individual from harm done by a third party
7
applies to permit liability against any Riverside Defendant. The state-created-
8
danger exception applies “when the state affirmatively places the plaintiff in danger
9
by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’” Patel, 648
10
F.3d at 971–72 (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.
11
189, 198–202 (1989); Grubbs, 92 F.3d at 900). In its order on the Riverside
12
Defendants’ motion to dismiss, the Court concluded Plaintiff’s allegations,
13
accepted as true, supported application of the state-created-danger exception. ECF
14
No. 99 at 10–13. Accordingly, the principal question underlying each of the motions
15
now before the Court is whether, viewing the facts in the record in the light most
16
favorable to Plaintiff, a reasonable trier of fact could conclude that the state-created-
17
danger exception applies to permit liability against any of the Riverside Defendants.
18
Because the answer to that question is yes—material factual questions
19
remain concerning (1) the nature of the child-abuse reporting practices employed
20
at Chatteroy Elementary School; (2) whether such practices affirmatively placed
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 27
1
G.B. in danger; and (3) whether adopting and implementing such practices
2
amounted to deliberate indifference—whether the § 1983 claims against the
3
Directors and Defendants Murray and Kramer should proceed turns on whether
4
those defendants (1) were involved with adopting and implementing the alleged
5
Chatteroy Elementary abuse-reporting policies and practices, or (2) are qualifiedly
6
immune from liability. Whether the § 1983 claims against the School District may
7
proceed turns on whether, in this context, the District is a person capable of being
8
sued under § 1983.
9
The Directors’ only role here was in adopting the district-wide child abuse,
10
neglect, and exploitation policies and practices, which required immediate reporting
11
of suspected abuse, and they had no direct supervisory obligations relating to the
12
implementation of those policies and practices by district staff at individual schools;
13
Plaintiff’s § 1983 claims against the Directors must therefore be dismissed. Murray
14
and Kramer, by contrast, were directly responsible for implementing the abuse-
15
reporting practices at Chatteroy Elementary School and they are not immune from
16
liability. Issues of fact preclude summary judgment on the § 1983 claims against
17
Murray and Kramer. Because the alleged harm here was caused by District policy,
18
practice, or custom, or by final policy makers, the District is a proper § 1983
19
defendant.
20
A.
Issues of fact remain concerning whether the child-abuse reporting
policy or practice in place at Chatteroy Elementary School affirmatively
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 28
placed G.B. in danger and was implemented with deliberate indifference
to a known or obvious danger.
1
2
As the Court has already explained, ECF No. 99, “[t]o establish § 1983
3
liability, a plaintiff must show both (1) deprivation of a right secured by the
4
Constitution and laws of the United States, and (2) that the deprivation was
5
committed by a person acting under color of state law.” Chudacoff, 649 F.3d at 1149.
6
A government actor generally has no constitutional obligation to protect an
7
individual from harm done by a third party. See DeShaney, 489 U.S. at 196–97.
8
There are two exceptions: “(1) when a ‘special relationship’ exists between the
9
plaintiff and the state (the special-relationship exception), . . . and (2) when the state
10
affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’
11
to a ‘known or obvious danger’ (the state-created danger exception).” 6 Patel, 648
12
F.3d at 971–72 (quoting DeShaney, 489 U.S. at 198–202; Grubbs, 92 F.3d at 900).
13
The state-created-danger exception applies only where there is (1)
14
“affirmative conduct on the part of the state in placing the plaintiff in danger,” and
15
(2) “the state acts with ‘deliberate indifference’ to a ‘known or obvious danger.’”
16
Patel, 648 F.3d at 974 (quoting Munger, 227 F.3d at 1086; Grubbs, 92 F.3d at 900)).
17
18
19
20
It is clear that the special-relationship exception does not apply here. This
exception applies where the state “takes a person into its custody and holds him
there against his will.” DeShaney, 489 U.S. at 199–200. Compulsory school
attendance is insufficient to create a “special relationship” under the DeShaney
standard. Patel, 648 F.3d at 973.
6
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 29
1
2
3
4
Deliberate indifference is a very stringent standard:
Deliberate indifference requires a culpable mental state. The state actor
must recognize an unreasonable risk and actually intend to expose the
plaintiff to such risks without regard to the consequences to the
plaintiff. In other words, the defendant knows that something is going
to happen but ignores the risk and exposes the plaintiff to it.
5
Patel, 648 F.3d at 974 (citations and quotation marks omitted). And, as the Court
6
explained in denying the Riverside Defendants’ motion to dismiss on this same
7
basis, ECF No. 99, the facts of cases where courts have found deliberate indifference
8
are extreme. See, e.g., Munger, 227 F.3d 1082 (police wouldn’t allow intoxicated
9
man to drive home or reenter bar and he died of hypothermia from minus 20 to 25
10
degree temperatures); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir.
11
1997) (man died after police officers found him on his porch in need of medical
12
attention and cancelled a paramedic call, moved him inside, and left); Grubbs, 974
13
F.2d 119 (RN who worked in a state prison was raped when she was put in a situation
14
where she was working alone with a violent sex offender.); Wood v. Ostrander, 879
15
F.2d 583 (9th Cir. 1989) (officer arrested driver of a vehicle for DUI and left
16
passenger alone in a known dangerous location, where she was then raped).
17
The Court previously concluded that the alleged facts here were severe
18
enough to demonstrate affirmative action and deliberate indifference. The Court
19
explained:
20
A five-year-old boy had serious bruises on his head (and a history of
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 30
1
2
3
4
5
6
7
8
signs of abuse) and told his teacher that his mother punched him. Rather
than report this to DSHS, or the police, immediately, the employees
apparently followed policy and waited to report the incident to school
officials who were absent that day. As a result, the child was beaten to
death.
Based on the facts as alleged, it is plausible that Riverside policy
makers and employees knew that these policies in general would result
in children being harmed, and it is likely that employees knew that in
this case G.B. would suffer harm if they followed established policy
and custom and did not immediately report the signs of abuse. They
likely did not know G.B. would be killed, but it is certainly probable
that they knew he would be harmed.
No. 99 at 12–13.
9
On the factual record now before the Court, material factual questions remain
10
concerning (1) the nature of the child-abuse reporting practices employed at
11
Chatteroy Elementary School, including whether staff were required to report
12
suspected abuse only to designated staff or administrators and whether staff were
13
encouraged to delay or avoid reporting suspected abuse; (2) whether such practices
14
affirmatively placed G.B. in danger; and (3) whether adopting and implementing
15
such practices amounted to deliberate indifference.
16
Tiffany Zuck asserts that Murray and Kramer encouraged staff “to read
17
Riverside’s official policy as telling staff to report all suspected cases of child abuse,
18
neglect, and exploitation to ‘the appropriate school administrator’ only—i.e. them—
19
because they didn’t want DSHS to get involved.’” ECF No. 135-15 at 4. She also
20
indicates that Murray and Kramer established a practice of delaying reporting signs
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 31
1
of abuse in order to first contact parents and attempt to “work it out.” Id. at 5. Zuck
2
also states that she was told by Murray that with regard to personally and
3
immediately reporting suspected abuse at Chatteroy to DSHS, “we don’t do that out
4
here.” Id. at 4. Zuck believes this policy was implemented by Murray and Kramer
5
because they did not like being confronted by hostile parents. Id. at 5.
6
As discussed, infra, the practices Zuck describes are inconsistent with the
7
Riverside School District child abuse, neglect, and exploitation policy and procedure
8
adopted by the Directors, but her assertions are partially corroborated by the
9
Chatteroy Elementary School Staff Handbook, which provides, as relevant here:
10
11
ANY school personnel who has “reasonable cause” to believe that a
child is suffering injuries, suffering physical neglect, or sexual abuse,
MUST report this to the CES counselor, first, and then the counselor
will then report to the Department of Child Protective Services.
12
ECF No. 135-6 at 6 (emphasis added). Zuck’s allegations are further supported by
13
the fact that Murray updated the School’s handbook after G.B.’s death to require
14
reporting suspected abuse directly to DSHS. ECF No. 171-1 at 10. Moreover, Zuck
15
is not the only staff person who stated or implied that a policy of reporting directly
16
to Murray existed at Chatteroy Elementary School. Sherry Dornquast, Cheri
17
McQuesten, and Sarah Ramsden each made statements indicating that staff were
18
expected to report suspected abuse to Murray rather than going directly to DSHS or
19
law enforcement. ECF No. 171-3 at 10; ECF No. 171-4 at 10–11; ECF No. 171-7 at
20
7–8. Further, the fact that numerous signs that G.B. was being abused went
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 32
1
unreported also supports the assertion that a practice of avoiding and delaying
2
reporting to DSHS or law enforcement was in place at the school. And these
3
assertions are consistent with Murray’s description of how reporting occurred in an
4
incident involving another child in 2014–15, ECF No. 171-1 at 6, and with the
5
actions of teachers and staff after observing G.B.’s injuries. ECF No. 171-1 at 18–
6
19.
7
This evidence, viewed in the light most favorable to Plaintiff, would permit a
8
reasonable fact finder to conclude that the child-abuse reporting practice at
9
Chatteroy Elementary School affirmatively placed G.B. in danger and that the
10
practice was adopted and implemented with deliberate indifference to a known or
11
obvious risk of danger.
12
B.
The record does not support § 1983 liability against the Directors.
13
Plaintiff’s claims against the Directors and District appear to be based solely
14
on the Directors’ policymaking and oversight actions, not on any action specifically
15
related to G.B. None of the Directors had any personal knowledge or awareness of
16
suspected abuse, neglect, or exploitation of G.B. at Chattaroy Elementary School. 7
17
18
19
20
7
Nieuwenhuis did receive an email from Khaleel expressing concerns about how
she and her children were being treated by the District and Khaleel attended a
December 2014 board meeting where she expressed these concerns. Superintendent
Kramer also stated to Nieuwenhuis that she was concerned for the Khaleel family.
ECF No. 149 at 3–4, 7–8. But Plaintiff’s § 1983 claims against the Directors are not
predicated on these facts.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 33
1
ECF No. 149 at 3.
2
The Directors argue that Plaintiff fails to identify any constitutional right that
3
was violated by a policy the Directors adopted. ECF No. 105 at 6. Plaintiff asserts
4
that policies and customs adopted by the Directors, as well as failure of oversight
5
and training, deprived G.B. of his right to substantive due process under a state-
6
created-danger theory of § 1983 liability. ECF No. 133 at 10–11. As discussed,
7
issues of fact remain regarding the nature of the child abuse reporting practices at
8
Chatteroy Elementary School, whether the practices affirmatively placed G.B. in
9
danger, and whether the practices were adopted with deliberate indifference to a
10
known or obvious danger. But even accepting Plaintiff’s description of the practices
11
at Chatteroy, the practices plainly are inconsistent with the district-wide child abuse,
12
neglect, and exploitation procedure adopted by the board of directors. That
13
procedure, as relevant here, provides:
14
15
16
17
18
When there is reasonable cause to believe that a student has suffered
abuse or neglect, staff or the principal will immediately contact the
nearest office of the Child Protective Services (CPS) of the Department
of Social and Health Services (DSHS). If this agency cannot be reached,
the report will be submitted to the police, sheriff, or prosecutor’s office.
Such contact must be made within forty-eight (48) hours. Staff will also
advice the principal regarding instances of suspected abuse or neglect
and reports of suspected abuse that have been made to state authorities
or law enforcement. In his/her absence the report will be made to the
nurse or counselor.
19
ECF No. 109-1 at 1 (emphasis added).
20
Viewing the facts in the light most favorable to Plaintiff, G.B.
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 34
1
demonstrated obvious and serious signs of abuse that clearly supported
2
reasonable cause to believe he had suffered abuse. Under Procedure 3421P,
3
staff or Murray were therefore obligated to contact DSHS or law enforcement
4
immediately. That did not happen here, instead, school staff and officials
5
delayed reporting or failed to report G.B.’s signs of abuse, and on April 16,
6
2015, when G.B. said his mom punched him and both Murray and Zuck were
7
unavailable, no report was made to DSHS. While District procedure may not
8
prohibit having a designated official report suspected abuse to DSHS, the
9
procedure clearly does not permit delay in reporting because such an official
10
is unavailable.
11
The problem with Plaintiff’s claim against the Directors is that the Directors’
12
role here was limited to adopting the district-wide child abuse, neglect, and
13
exploitation policies and procedures. And Plaintiff has provided no basis to conclude
14
that the Directors, in adopting those policies and procedures, were deliberately
15
indifferent to a known and obvious danger to G.B. or other students. Indeed, as
16
discussed, Procedure 3421P requires the reporting Plaintiff argues should have
17
occurred here. Further the District’s child abuse, neglect, and exploitation policies
18
and procedures provide a clear and expansive definition of child abuse, specific
19
examples of signs of abuse, and clear reporting requirements and procedures. ECF
20
Nos. 109-1 & 109-2. And those policies and procedures are identical to WSSDA’s
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 35
1
model child abuse, neglect, and exploitation policies, which presumably have been
2
adopted by many other districts throughout the state. The possible constitutional
3
violation by the District or its staff, as alleged by Plaintiff, occurred because the
4
Procedure 3421P was not followed. No authority supports Plaintiff’s argument that
5
the Directors are liable for District staff or officials’ allegedly unreasonable
6
interpretation or implementation its policy.
7
Plaintiff also argues that the Directors failed to provide meaningful
8
supervision or oversight and failed to provide adequate training to district
9
employees. ECF No. 133 at 14–19. “A supervisor can be liable in his individual
10
capacity for his own culpable action or inaction in the training, supervision, or
11
control of his subordinates; for his acquiescence in the constitutional deprivation; or
12
for conduct that showed a reckless or callous indifference to the rights of others.”
13
Henry A. v. Willden, 678 F.3d 991, 1004 (9th Cir. 2012) (quoting Starr v. Baca, 652
14
F.3d 1202, 1208 (9th Cir. 2011)) (internal quotation marks omitted). A policy of
15
inadequate training is also actionable under § 1983. Bergquist v. Cty. of Cochise,
16
806 F.2d 1364, 1371 (1986). But the Directors are not supervisors and have no
17
obligation to supervise implementation of policies at individual schools. Under
18
Washington law, a school district board of directors is “vested with the final
19
responsibility for the setting of policies ensuring quality in the content and extent of
20
its educational program and that such program provide students with the opportunity
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 36
1
to achieve those skills which are generally recognized as requisite to learning.”
2
Wash. Rev. Code (RCW) § 28A.150.230(1). But school boards may, and generally
3
do, hire a superintendent and other administrators and delegate administrative
4
authority to those officials. RCW § 28A.330.100; ECF No. 143 at 9–10. School
5
boards are generally not equipped to provide administrative supervision of
6
superintendents or to provide oversight of the details of specific policy
7
implementation at individual schools. ECF No. 143 at 10. Additionally, Plaintiff
8
fails to provide any facts supporting the allegation that the Directors adopted a policy
9
that caused a failure to train or supervise.
10
C.
Issues of fact preclude summary judgment on the claims against Cramer
and Murray.
11
Defendants Kramer and Murray argue that Plaintiff fails to state a § 1983
12
claim against them because no exception to the rule that a government actor has no
13
constitutional obligation to protect an individual from harm by a third party applies
14
to them and, in the alternative, because they are entitled to qualified immunity. ECF
15
No. 151 at 4–5. As discussed, material disputed issues of fact remain concerning (1)
16
the nature of the child-abuse reporting practices employed at Chatteroy Elementary
17
School, including whether staff were required to report suspected abuse only to
18
designated staff or administrators and whether staff were encouraged to delay or
19
avoid reporting suspected abuse; (2) whether such practices affirmatively placed
20
G.B. in danger; and (3) whether adopting and implementing such practices amounted
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 37
1
to deliberate indifference. And there is little question that Kramer and Murray were
2
responsible for adopting and implementing whatever practices were in place at
3
Chatteroy Elementary School. Issues of fact therefore remain concerning whether
4
their actions affirmatively placed G.B. at risk of harm and amounted to deliberate
5
indifference to a known or obvious risk of danger. And because issues of fact
6
preclude summary judgment on the basis that Kramer and Murray had no obligation
7
to protect G.B. from harm by a third party, the same factual questions preclude
8
qualified immunity at this stage.
9
“The doctrine of qualified immunity protects government officials ‘from
10
liability for civil damages insofar as their conduct does not violate clearly
11
established statutory or constitutional rights of which a reasonable person would
12
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
13
Fitzgerald, 457 U.S. 800, 818, (1982)). To determine whether an official is entitled
14
to qualified immunity, courts generally apply a two-part inquiry: “First, do the facts
15
the plaintiff alleges show a violation of a constitutional right? Second, was the right
16
‘clearly established’ at the time of the alleged misconduct.” Carrillo v. Cty. of L.A.,
17
798 F.3d 1210, 1218 (9th Cir. 2015) (citations omitted). “An officer cannot be said
18
to have violated a clearly established right unless the right’s contours were
19
sufficiently definite that any reasonable official in his shoes would have understood
20
that he was violating it, meaning that existing precedent placed the statutory or
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 38
1
constitutional question beyond debate.” Id. (quoting City & Cty. of S.F. v. Sheehan,
2
135 S. Ct. 1765, 1774 (2015)).
3
As discussed, issues of fact remain concerning whether Kramer and Murray
4
were deliberately indifferent to the a known or obvious risk of danger—that
5
children would be abused—by implementing a policy of encouraging reporting
6
suspected abuse internally and unnecessarily delaying reporting to DSHS or law
7
enforcement. Acting with deliberate indifference to such a known or obvious harm
8
violates clearly established federal law. See Kennedy v. City of Ridgefield, 439 F.3d
9
1055, 1066 (9th Cir. 2006) (holding that it is clearly established law for the purpose
10
of qualified immunity that state officials can be held liable for affirmatively and
11
with deliberate indifference placing an individual in danger she would not otherwise
12
have faced.)
13
D.
The Riverside School District is a proper defendant under § 1983.
14
The School District argues that Plaintiff fails to establish a § 1983 claim
15
against it because (1) no exception to the rule that a government actor has no
16
constitutional obligation to protect an individual from harm by a third party applies
17
to it and, (2) because Plaintiff fails to establish liability under Monell v. Department
18
of Social Services, 436 U.S. 658 (1978). ECF No. 157 at 4–6. As discussed, material
19
issues of fact preclude summary judgment on the first basis. As to the second, if
20
there is § 1983 liability for harm caused by the individual Riverside Defendants, the
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 39
1
School District may also be held liable because the allegedly unlawful actions
2
involve implementing a District policy or custom and the actions of final
3
policymakers—Murray and Kramer.
4
“[A] municipality cannot be held liable under § 1983 on a respondeat superior
5
theory.” Monell, 436 U.S. at 691. Instead, a municipality is responsible for its
6
officials’ unconstitutional conduct under § 1983 only if the conduct was caused by
7
a municipal policy, practice, or custom. Menotti v. City of Seattle, 409 F.3d 1113,
8
1147 (9th Cir. 2005). A plaintiff may establish a municipal policy, practice, or
9
custom in one of three ways: (1) “the plaintiff may prove that a [municipal]
10
employee committed the alleged constitutional violation pursuant to a formal
11
government policy or a longstanding practice or custom which constitutes the
12
standard operating procedure of the [city]”; (2) the plaintiff may show “that the
13
individual who committed the constitutional tort was an official with final
14
policy-making authority”; or (3) “the plaintiff may prove that an official with final
15
policy-making authority ratified a subordinate’s unconstitutional decision or action
16
and the basis for it.” Hooper v. City of Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001).
17
In this case Plaintiff’s claims clearly implicate school district policy, practice,
18
or custom, and the actions of final policymakers. And, as discussed, disputed issues
19
of material fact preclude summary judgment on those claims.
20
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 40
1
E.
Motions to Strike Declarations of Tiffany Zuck and Lisa Chan
2
1.
Declaration of Tiffany Zuck
3
In their reply in support of their motion for summary judgment on Plaintiff’s
4
claims against the Directors, the Riverside Defendants move to strike specific
5
portions of the Declaration of Tiffany Zuck. ECF No. 140 at 9–10. The Directors
6
argue that Zuck’s declaration contains inadmissible opinions and hearsay and lacks
7
foundation. Id. at 9. The Directors also argue that. Zuck’s declaration is contradicted
8
by her deposition testimony. Id. at 9.
9
In her deposition, Zuck qualifies or arguably changes her understanding of
10
state law regarding child abuse reporting, and whether practices she observed
11
violated RCW § 26.44.030. ECF No.142-1 at 11–14, 19–25. But Zuck’s
12
interpretation of state law is irrelevant here. What matters is her factual account of
13
the child-abuse reporting procedures at Chatteroy Elementary School.
14
Zuck’s deposition testimony does contradict some aspects of her declaration
15
on these facts. Most importantly, Zuck expresses less certainty about Murray and
16
Kramer’s role in setting and implementing the described child-abuse reporting
17
procedure at Chatteroy Elementary School. She explained that Murray and Kramer
18
did not directly tell her to report suspected abuse only internally. ECF No. 142-1 at
19
35–36. Instead, she recalls being told by other teachers and staff that that it was the
20
practice to report suspected abuse to Murray only, and that Murray would then
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 41
1
decide whether to make a report to DSHS. Id. at 36. She also acknowledges
2
incorrectly stating that ECEAP employees at Chatteroy did not receive training on
3
child-abuse reporting, clarifying that she was not aware whether employees other
4
than herself did not receive training. Id. at 15–18. Zuck also said she couldn’t
5
remember being told at new-employee training that she was only to report suspected
6
abuse or neglect to administrators. Id. at 35–36.
7
But Zuck’s testimony also reaffirms much of her declaration. She makes clear
8
that she believed it was the policy and practice in the school to report only to school
9
administrators and to delay reporting in order to contact parents. Id. at 39–40. She
10
states that, in addition to being told that was the practice by other staff and teachers,
11
the policy was implied by the actions and statements of other employees. Id. at 40.
12
She also cites two examples she was aware of where an employee went to Murray
13
with an incident of suspected abuse and Murray contacted the parent or directed the
14
employee to do so rather than report the incident. Id. at 40.
15
The Riverside Defendants cite no authority for the position that inconsistent
16
testimony is a basis to strike a declaration. Instead, they appear to infer that position
17
from the uncontroversial principle that inconsistent statements by a plaintiff alone
18
do not create an issue of fact, see Radobenko v. Automated Equipment Corp., 520
19
F.2d 540, 543–44 (9th Cir.1975) (“[I]f a party who has been examined at length on
20
deposition could raise an issue of fact simply by submitting an affidavit contradicting
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 42
1
his own prior testimony, this would greatly diminish the utility of summary
2
judgment as a procedure for screening out sham issues of fact.”). But there is no
3
logical basis for extending that principle to strike the portion of inconsistent
4
statements that one party would prefer not to have in the record.
5
In any case, the inconsistencies between Zuck’s declaration and deposition
6
testimony are not sufficient to discount her declaration. As noted, she reaffirms her
7
general view of the factual circumstances and abuse-reporting practice at Chatteroy
8
in her deposition. Moreover, Zuck’s assertions in her declaration are consistent with
9
the testimony of several other Chatteroy Elementary School teachers and staff, who
10
also indicated that staff were expected to report suspected abuse to Murray rather
11
than going directly to DSHS or law enforcement.
12
On the question of admissibility, the bulk of Zuck’s statements are based on
13
personal knowledge, and the statements of others she references are primarily by
14
defendants in this case. Additionally, Plaintiff has adequately demonstrated a
15
foundation for Zuck’s personal knowledge about child-abuse reporting practices at
16
Chatteroy Elementary. The relevant portions of Zuck’s declaration are admissible
17
and may be considered on summary judgment.
18
19
The Riverside Defendants’ motion to strike the Declaration of Tiffany Zuck
is denied.
20
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 43
1
2.
Declarations of Lisa Chan and Dr. Ronald Stephens
2
In their reply in support of their motion to dismiss the § 1983 claims against
3
the District, the Riverside Defendants move to strike the declarations of Lisa Chan
4
and Dr. Ronald Stephens, which Plaintiff submitted in response to the Riverside
5
Defendants’ motion. ECF No.196 at 2–3. The Riverside Defendants argue that the
6
statements in Chan’s declaration are inadmissible and misleading, ECF No. 209 at
7
1–2, and that Dr. Stephen’s declaration is irrelevant, ECF No. 196 at 3.
8
As with Zuck, the Riverside Defendants point to inconsistencies between
9
Chan’s declaration and her deposition testimony to support their argument that her
10
declaration is misleading. ECF No. 209 at 2–5. And as with Zuck, her statements are
11
based on personal knowledge as an employee at Chatteroy Elementary School and
12
most of the statements of others she references appear to be by defendants in this
13
case.
14
With respect to the declaration of Dr. Stephens, his statements regarding
15
proper school district child-abuse reporting policy implementation and training are
16
plainly
17
18
19
20
relevant,
and
will
not
be
stricken.
The Riverside Defendants’ motion to strike the declarations of Lisa Chan and
Dr. Ronald Stephens is denied.
CONCLUSION
For the reasons discussed, IT IS HEREBY ORDERED:
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 44
1
1.
The Riverside Defendants’ Motion for Summary Judgment to Dismiss
2
Board of Directors, ECF No. 105, is GRANTED IN PART AND
3
DENIED IN PART as follows:
4
A.
Plaintiff’s § 1983 claims against the Directors are DISMISSED;
5
B.
The Riverside Defendant’s motion for summary judgment with
6
respect to Plaintiff’s state-law claims against the Directors is
7
DENIED.
8
2.
Defendants Murray and Kramer, ECF No. 151, is DENIED.
9
10
3.
4.
15
16
17
18
19
20
The Riverside Defendants’ Motion to Strike the Declaration of Tiffany
Zuck is DENIED.
13
14
The Riverside Defendants’ Motion for Summary Judgment to Dismiss
Riverside School District No. 416, ECF No. 157, is DENIED.
11
12
The Riverside Defendants’ Motion for Summary Judgment to Dismiss
5.
The Riverside Defendants’ Motion to Strike the Declarations of Lisa
Chan and Dr. Ronald Stephens is DENIED.
IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
provide copies to all counsel.
DATED this 16th day of January 2018.
__________________________
SALVADOR MENDOZA, JR.
United States District Judge
ORDER RE RIVERSIDE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT- 45
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?