Davis v. Washington State Department of Social and Health Services et al
Filing
368
ORDER GRANTING IN PART AND DENYING IN PART 226 RIVERSIDE DEFENDANTS' AND 236 PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Salvador Mendoza, Jr. (AY, Case Administrator)
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7460 Page 1 of 29
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Jun 01, 2020
SEAN F. MCAVOY, CLERK
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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BARBARA DAVIS, as Personal
Representative of the Estate of G.B.,
deceased,
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Plaintiff,
v.
No. 2:17-cv-00062-SMJ
ORDER GRANTING IN PART
AND DENYING IN PART
RIVERSIDE DEFENDANTS’ AND
PLAINTIFF’S MOTIONS FOR
SUMMARY JUDGMENT
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 acting under
the color of state law; SUSAN
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 1
Case 2:17-cv-00062-SMJ
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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 acting 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
her official capacity acting under the
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 2
Case 2:17-cv-00062-SMJ
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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,
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Defendants.
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Before the Court, without oral argument,1 are the Riverside Defendants’2
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Having reviewed the record, the parties’ briefs, and the relevant legal authorities,
the Court is fully informed and finds the motions appropriate for decision without
oral argument. See LCivR 7(i)(3)(B)(iii).
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The Riverside Defendants include the Riverside School District, No. 416; Roberta
Kramer; Chris Nieuwenhuis; Roger Pratt; Gary Vanderholm; Wendy Supanchick;
Kristina Griffith; Ann Stopar; Melissa Reed; Tami Boone; Cheri McQuesten;
Caroline Raymond; and Sarah Ramsden. ECF No. 331 at 2–3. Defendant Sherry
Dornquast, a former Riverside School District employee, has joined in the Response
to Plaintiff’s motion for summary judgment. ECF No. 343.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 3
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Motion for Summary Judgment on All Claims, ECF No. 226, and Plaintiff Barbara
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Davis’s Motion for Summary Judgment Against Riverside School District and
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Related Individual Defendants, ECF No. 236. The Riverside Defendants seek
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summary judgment on each of Plaintiff’s claims, arguing Plaintiff cannot establish
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the causation element of any claim. ECF No. 226. Plaintiff seeks summary
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judgment on nine issues. ECF No. 236. Having reviewed the briefing and the file in
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this matter, the Court is fully informed. For the reasons that follow, the Court grants
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in part and denies in part each motion.
BACKGROUND
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A.
Factual history3
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This case arises out of the tragic death of G.B., a minor child, while in the
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custody of his aunt. G.B. was born in October 2009, and he lost both parents early
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in his life: his father was murdered in his home in June 2012, and his mother died of
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an apparently drug-related heart attack two years later. ECF No. 1 at 12–13.
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Following the death of his mother, G.B. and his siblings became dependents of the
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State of Washington. Id. at 13. In August 2014, G.B. and his younger brother were
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The parties’ filings on these motions do not provide detailed factual backgrounds,
possibly because the facts of this case have been exhaustively described in prior
motions and Court Orders. The Court similarly finds that a detailed discussion of
the factual background is not necessary in this Order. To the extent practicable, this
discussion of the case relies on the filings in the instant motions, but where
background facts are not provided, the Court relies on previous filings.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 4
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placed in the care of their paternal aunt, Cynthia Khaleel, who lived near Spokane,
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Washington. Id. at 13.
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In the fall of 2014, G.B. began attending Chatteroy Elementary School in
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the Riverside School District, where he qualified for special education programs due
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to his developmental delays in cognitive, communication, social and emotional, and
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adaptive skills. Id. During the 2014–15 school year, staff and teachers at Chatteroy
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Elementary School observed numerous signs that G.B. may have been suffering
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abuse and neglect:
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In early October 2014, one of G.B.’s teachers, Sheri Dornquast,
noticed bruising on G.B.’s forehead. ECF No. 171-3 at 20–21,
27. She took a photograph and called Chatteroy Principal Juanita
Murray into the 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 2014, during 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. Speech
Pathologist Sara Ramsden, family service coordinators Tami
Boon and Cheri McQuesten, and assistant lead teacher Ann
Stopar 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
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ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 5
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shortly after that incident showed G.B. with scabs on his
forehead. ECF No. 171-3 at 29; ECF No. 171-13.
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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, to 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 observed G.B. hitting his head
against things on several occasions. ECF No. 171-3 at 27.
At a Christmas concert on December 10, 2014, several staff
members observed bruising and scratches on G.B.’s face, and
Ramsend stated that she believed these injuries were signs of
abuse. ECF No. 171-4 at 12, 17. G.B. attended school for only
four days in December 2014. ECF No. 171-3 at 17–18. At this
same concert, Ramsend observed that G.B. and a sibling were
left alone in a stroller outside the school gymnasium. ECF
No. 171-4 at 25. This concerned her because both children were
“high-needs.” Id. at 25.
G.B. had a significant number of 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.
In February 2015, a school employee observed G.B. crying in
the parking lot with a bleeding scrape on the back of his head.
Khaleel stated that he had fallen out of the car and hit his head.
ECF No. 270 at 30.
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Only after the December 10, 2014 incident were any of these events reported.
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After Ramsend shared her concerns about the injuries G.B. had at the Christmas
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 6
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concert with assistant lead teacher Caroline Raymond and then school counselor
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Tiffany Zuck, Zuck submitted a report to DSHS on December 12, 2014 indicating
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that she believed G.B. and his siblings were being abused at home. ECF No. 135-9
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at 4. She reported that G.B. had multiple injuries consistent with abuse and that
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Khaleel did not adequately supervise him. Id. at 4. Specifically, she reported that
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G.B. had multiple bruises, injuries, and scratches to his face, cheeks, and forehead,
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but she noted that G.B. had severe disabilities and had harmed himself previously.
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ECF. No. 218-4 at 17. She also reported that Khaleel left G.B. and his younger
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sibling unattended in a school hallway for seven to eight minutes. Id. at 17.
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Additionally, Zuck relayed a concern expressed by G.B.’s bus driver that G.B.
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walked by himself to the bus stop and was often followed by two large dogs. Id.
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at 17. DSHS social worker Brina Carrigan investigated Zuck’s December 12
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referral, and ultimately closed the referral as unfounded on December 24, 2014. ECF
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No. 218-2 at 3–4; ECF No. 218-4 at 3–4.
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Following this incident, Khaleel came into the school and confronted Zuck,
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verbally attacking her, yelling profanities, and threatening her. ECF No. 135-15 at 5;
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ECF No. 171-4 at 9–10. Riverside Superintendent Kramer had a conversation with
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Khaleel in which she told Khaleel that she could not discuss Child Protective
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Services (CPS) reports and asked Khaleel to leave. ECF No. 171-2 at 9. Kramer
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subsequently instructed Murray to tell Zuck that her interactions were upsetting and
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 7
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disruptive to the family. Id. at 10. Consistent with Khaleel’s request not to have
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further involvement with Zuck, Zuck was instructed not to deal with Khaleel in the
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future, although Kramer does not recall specifically telling Zuck that she was
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prohibited from having any contact with the Khaleel family. Id. at 10. Zuck asserts
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that the District and administration told her not to have contact with G.B. or his
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siblings. ECF No. 135-15 at 5.
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It does not appear the February 2015 incident was reported to child protective
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services, nor were G.B.’s significant absences in January and March 2015. See ECF
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No. 270 at 30. Further, Zuck asserts that near the time of the December incident,
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G.B.’s grandmother, Barbara Davis, began calling to complain that G.B. and his
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siblings were being abused at home, but that Murray did not report the suspected
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neglect because Murray believed Davis was lying. Id. at 5. Murray denies these
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assertions. ECF No. 171-1 at 28–29. The Chatteroy Elementary School staff
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handbook at the time of the incident required staff to report suspected child abuse to
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the school counselor, rather than directly to Child Protective Services. ECF No. 135-
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6 at 6. This policy was revised after G.B.’s death to require staff to report suspected
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abuse directly to the Department of Social and Health Services rather than to a school
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counselor. ECF No. 171-1 at 10.
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On April 16, 2015, G.B. told Melissa Reed that his “mother punched” him in
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ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 8
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the head.4 ECF No. 171-3 at 24. Dornquast overheard this statement and asked G.B.
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what he said, and he repeated his mother had “punched [him] in the head.” Id.
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Dornquast denies seeing any evidence of injury or that G.B. reported he was in any
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pain. Id. Dornquast did not believe G.B.’s statement that Khaleel “punched” him,
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but thought Khaleel might have “popped . . . [or] flicked him [or] something.” Id.
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This incident was not immediately reported to DSHS or law enforcement. Id. Murray
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was not working on that day. ECF No. 171-1 at 24. Dornquast states that she would
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have reported the incident to Murray if she had not been out of town. ECF No. 171-3
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at 23.
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The following morning, on April 17, 2015, emergency medical providers
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arrived at the Khaleel residence and discovered G.B. in an unresponsive state. ECF
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No. 1 at 13. He was taken to Sacred Heart Medical Center, where medical staff
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discovered multiple skull fractures and traumatic injuries to his brain. Id. He died
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from these injuries the following day. Id. at 14. The Spokane County Medical
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examiner determined that G.B.’s cause of death was blunt force head injury and
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ruled the death a homicide. Id. G.B. also sustained multiple other traumas, including
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an abdominal injury that was the result of a forceful blow. Id. Khaleel was arrested
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Dornquast recalls G.B. saying, “Mom punched me in the head,” ECF No. 171-3
at 24, while Murray stated that she was told the statement was “my mommy punched
me in the head,” ECF No. 171-1 at 25.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 9
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in July 2015 and charged with second-degree murder. Id.
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C.
Relevant Procedural History
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This case has an extensive procedural history, which the Court only briefly
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summarizes. G.B.’s grandmother, on behalf of G.B.’s estate, brought this action on
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September 14, 2016 against DSHS and the Riverside School District, along with
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numerous employees of those agencies. ECF No. 1. Her claims against the Riverside
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Defendants include negligence, violation of G.B.’s substantive due process rights
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under 42 U.S.C. § 1983, violation of Washington mandatory reporting laws, and the
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tort of outrage. Id. at 40–45. On February 21, 2020, the case was transferred from
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the Western District of Washington, where it was filed, to the Eastern District of
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Washington. ECF Nos. 67, 68. The Court has already at least partially resolved eight
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motions seeking dispositive relief on claims filed by various Defendants, two of
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which were appealed and affirmed by the Ninth Circuit.5 ECF Nos. 99, 221, 223,
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281 & 291; ECF Nos. 311, 334.
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In June 2016, the Court denied the Riverside Defendants’ motion to dismiss
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Plaintiff’s § 1983 claims against the District, the Directors, Principal Murray, and
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Superintendent Roberta Kramer, but, with Plaintiff’s stipulation, granted the motion
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The Court also notes that since the filing of these motions, three more motions for
summary judgment or partial summary judgment have been filed, further
complicating the record in this case. ECF Nos. 347, 359 & 361.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 10
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to dismiss the § 1983 claims against the other individual Riverside Defendants. ECF
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No. 99. In January 2018, the Court granted in part and denied in part the Riverside
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Defendants’ motion for summary judgment on all claims, dismissing Plaintiff’s
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§ 1983 claims against the Riverside School District Directors and denying summary
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judgment on all other claims against the Riverside Defendants. ECF No. 221.
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The Riverside Defendants filed this motion for summary judgment on
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January 25, 2018, and Plaintiff filed her motion for summary judgment as to the
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Riverside Defendants on January 29, 2018. ECF Nos. 226, 236. The motions were
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stayed pending resolution of the appeal of the Court’s denial of Defendants Roberta
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Kramer’s and Juanita Murray’s claim of qualified immunity. ECF Nos. 252, 253.
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The stay was lifted on June 20, 2019. ECF No. 312. However, on September 24,
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2019, the Court granted the Riverside Defendants’ Motion to Continue Hearing on
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Summary Judgment Motions pending the deposition of Ms. Khaleel. ECF No. 327.
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After unsuccessful attempts to depose Ms. Khaleel, the parties jointly requested that
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hearing dates be set in July 2020 on these motions without her deposition testimony.
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ECF No. 335 at 7–8.
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LEGAL STANDARD
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The Court must grant summary judgment if “the movant shows that there is
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no genuine dispute as to any material fact and the movant is entitled to judgment as
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a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 11
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outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if “the evidence
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is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
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In ruling on a summary judgment motion, the Court must view the evidence
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in the light most favorable to the nonmoving party. See Tolan v. Cotton, 572
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U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
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(1970)). Thus, the Court must accept the nonmoving party’s evidence as true and
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draw all reasonable inferences in its favor. See Anderson, 477 U.S. at 255. The
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Court may not assess credibility or weigh evidence. See id. Nevertheless, the
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nonmoving party may not rest upon the mere allegations or denials of its pleading
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but must instead set forth specific facts, and point to substantial probative evidence,
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tending to support its case and showing a genuine issue requires resolution by the
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finder of fact. See Anderson, 477 U.S. at 248–49.
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DISCUSSION
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A.
Causation
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The Riverside Defendants assert, and Plaintiff does not contest, that each of
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Plaintiff’s causes of action require a showing of causation. ECF No. 226 at 67;
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ECF No. 342. The Riverside Defendants assert Plaintiff cannot establish that, had
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the Riverside Defendants reported each of the signs of abuse identified by Ms.
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Davis, G.B. would not have died in Khaleel’s home on the morning of April 17,
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 12
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2015.6 ECF No. 226 at 4. Plaintiff argues (1) this Court and the Ninth Circuit have
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determined that there is a causal link between the Riverside Defendants’ failure to
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report and G.B.’s death, so the law of the case doctrine precludes revisiting this
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issue, and (2) in any event, there is a dispute of material fact over whether, had the
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Riverside Defendants reported the signs of G.B.’s abuse earlier, he would have been
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removed from the Khaleel home in time to prevent his death. ECF No. 342 at 9.
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“The law of the case doctrine ordinarily precludes reconsideration of a
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previously decided issue.” United States v. Alexander, 106 F.3d 874, 876 (9th
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Cir. 1997).
The law of the case doctrine states that the decision of an appellate
court on a legal issue must be followed in all subsequent proceedings
in the same case. The doctrine is a judicial invention designed to aid in
the efficient operation of court affairs. Under the doctrine, a court is
generally precluded from reconsidering an issue previously decided by
the same court, or a higher court in the identical case. For the doctrine
to apply, the issue in question must have been decided explicitly or by
necessary implication in the previous disposition.
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United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (quoting
Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)).
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In this case, the Ninth Circuit, in affirming this Court’s decision, determined
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The Riverside Defendants originally also argued that Plaintiff could not provide
any facts in support of the argument that G.B.’s death was caused by abuse, rather
than an accidental injury. ECF No. 226 at 4. However, the Riverside Defendants
have withdrawn this argument. ECF No. 353 at 4.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 13
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that a reasonable juror could find “that had [Murray and Kramer] not discouraged
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staff from directly reporting suspected abuse, staff would have reported signs that
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G.B. was abused to authorities on several occasions between October 2014 and
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April 2015[], and the CPS would have intervened.” ECF No. 310 at 56 (footnote
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omitted). This determination was made in the context of evaluating Murray and
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Kramer’s arguments related to qualified immunity. See id. at 36. As such, the
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Ninth Circuit did not explicitly decide the issue raised in the instant motion for
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summary judgment: whether there is a dispute of material fact that, had CPS
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received reports of suspected abuse, either prior to or subsequent to the December
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report, G.B. would have been removed from Khaleel’s custody before April 17,
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2015. See id.
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However, the failure to report suspected abuse is a necessary link in the
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causal chain described by the Ninth Circuit. Thus the Ninth’s Circuit’s decision—
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that CPS may have intervened had there not been a policy discouraging direct
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reporting—necessarily included a determination that the failure to directly report
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caused CPS’s failure to intervene. As the Ninth Circuit observed in a footnote,
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“[t]here were several occasions where G.B. displayed signs of potential abuse,
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including bruising and a severe burn in October 2014, bilateral bruising in
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November 2014, significant absences in January and March 2015, and G.B.’s
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statement in April 2015 that ‘Mom punched me in the head.’” ECF No. 310 at 6
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 14
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n.4. Thus, this issue was decided by necessary implication, and the Court is
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precluded from revisiting it by the law of the case doctrine. See Thrasher, 483 F.3d
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at 981.
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Because the Court has already determined that there is a dispute of material
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fact going to the issue of causation raised in the Riverside Defendants’ motion for
6
summary judgment, summary judgment is not appropriate and the motion must be
7
denied. Similarly unavailing are the Riverside Defendants’ arguments that
8
Plaintiff’s state law claims against the school teachers and staff must be dismissed
9
because the December investigation severed the causal link between October and
10
November failures to report and G.B.’s death. The Riverside Defendant’s motion
11
for summary judgment is denied as to this argument.
12
B.
State Law Claims
13
The Riverside Defendants also move for summary judgment on various state
14
law claims against specified Riverside Defendants and on all claims against the
15
Riverside Defendants for the claim of outrage. ECF No. 226 at 1923.
16
1.
17
The Riverside Defendants argue that “Plaintiff can identify no facts which
18
establish any of the three elements of the tort of outrage.” ECF No. 226 at 23. “The
19
tort of outrage requires the proof of three elements: (1) extreme and outrageous
20
conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual
Outrage Claims Against All Defendants
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 15
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7475 Page 16 of 29
1
result to plaintiff of severe emotional distress.” Kloepfel v. Bokor, 66 P.3d 630, 632
2
(Wash. 2003). “Although the three elements are fact questions for the jury, this first
3
element of the test goes to the jury only after the court ‘determine[s] if reasonable
4
minds could differ on whether the conduct was sufficiently extreme to result in
5
liability.’” Robel v. Roundup Corp., 59 P.3d 611, 619 (Wash. 2002) (alteration in
6
original) (quoting Dicomes v. State, 782 P.2d 1002, 1013 (Wash. 1989)).
7
“[A]ny claim for intentional infliction of emotional distress must be
8
predicated on behavior ‘so outrageous in character, and so extreme in degree, as to
9
go beyond all possible bounds of decency, and to be regarded as atrocious, and
10
utterly intolerable in a civilized community.’” Kloepfel, 66 P.3d at 632 (quoting
11
Grimsby v. Samson, 530 P.2d 291, 295 (Wash. 1975)) (emphasis omitted). “In an
12
outrage claim, ‘the relationship between the parties is a significant factor in
13
determining whether liability should be imposed.’” Robel, 59 P.3d at 620 (quoting
14
Contreras v. Crown Zellerbach Corp., 565 P.2d 1173, 1176 (Wash. 1977)).
15
In this case, Plaintiff has not shown reasonable minds could differ over
16
whether the Riverside Defendant’s conduct was sufficiently extreme as to result in
17
liability. Plaintiff presents only one argument on this point, that “because of the
18
relationship between G.B. and the teachers and staff at Chattaroy Elementary
19
School, issues of material fact exist as to whether RSD Defendants’ conduct was
20
sufficiently extreme to result in liability.” ECF No. 342 at 22. First, Plaintiff fails
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 16
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1
to set forth specific facts or point to substantial probative evidence, tending to
2
support her case and showing a genuine issue requires resolution by the finder of
3
fact. See Anderson, 477 U.S. at 248–49.
4
Second, the single case on which Plaintiff relies in support of this argument
5
is distinguishable from the instant case in that it involved an employer or other
6
authority figures affirmatively using racial slurs, comments, or jokes. See Robel, 59
7
P.3d at 620. A case involving outrage in the context of failing to report abuse, Jane
8
Doe v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints,
9
167 P.3d 1193 (Wash. Ct. App. 2007), is similarly distinguishable in that there was
10
an additional egregious act beyond the failure to report which supported the
11
plaintiff’s claim of outrage. Specifically, in that case, a child being abused informed
12
a bishop she was being abused and the bishop discouraged her from pursuing
13
anything further because, in the trial court’s words, “the family would break up,
14
they’d be out on the streets, basically, everybody would be talking about her.” Id.
15
at 1206. As such, Plaintiff has not shown that there is a dispute of material fact and
16
summary judgment in favor of the Riverside Defendants is appropriate.
17
2.
Negligence Claims Against Board Members
18
The Riverside Defendants argue Plaintiff’s state law claims against the
19
Riverside School District Board Members Chris Nieuwenhuis, Roger Pratt, and
20
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 17
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7477 Page 18 of 29
1
Gary Vanderholm (“Board Members”) should be dismissed.7 ECF No. 226 at 19.
2
The Riverside Defendants also argue the negligence claim against Reed must be
3
dismissed. Plaintiff did not respond to either argument related to the Board
4
Members. See ECF No. 342. The remaining state law claims against the Board
5
Members are negligence and failure to report under Wash. Rev. Code § 26.440.030.
6
“The elements of negligence are duty, breach, causation, and injury.” Keller
7
v. City of Spokane, 44 P.3d 845, 848 (Wash. 2002) (citing Hartley v. State, 698 P.2d
8
77, 82 (Wash. 1985)). Plaintiff asserts the Board had a duty to remain involved in
9
policy implementation and to ensure the superintendent was executing her duties,
10
but failed to discuss with school staff how the reporting policies were being
11
implemented or “take any meaningful action to ensure [the superintendent] was
12
carrying out her duties.” ECF No. 344 at 36. However, this Court has already
13
determined in the context of Plaintiff’s § 1983 claims against the Board Members
14
that
15
[T]he [Board Members] are not supervisors and have no obligation to
supervise implementation of policies at individual schools. Under
Washington law, a school district board of directors is “vested with the
final responsibility for the setting of policies ensuring quality in the
content and extent of its educational program and that such program
16
17
18
19
20
7
The Riverside Defendants previously moved to dismiss claims against Defendants
Nieuwenhuis, Pratt, and Vanderholm as Board Members, but presented arguments
pertaining only to claims under § 1983. ECF No. 105. The Court granted the motion
as to the § 1983 claims but denied the motion as to the remaining claims. ECF
No. 221.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 18
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7478 Page 19 of 29
6
provide students with the opportunity to achieve those skills which are
generally recognized as requisite to learning.” Wash. Rev. Code []
§ 28A.150.230(1). But school boards may, and generally do, hire a
superintendent and other administrators and delegate administrative
authority to those officials. [Wash. Rev. Code] § 28A.330.100; ECF
No. 143 at 9–10. School boards are generally not equipped to provide
administrative supervision of superintendents or to provide oversight
of the details of specific policy implementation at individual schools.
ECF No. 143 at 10. Additionally, Plaintiff fails to provide any facts
supporting the allegation that the Directors adopted a policy that
caused a failure to train or supervise.
7
ECF No. 221 at 36–37. Thus, Plaintiff’s assertions that the Board had a duty to
8
supervise the superintendent’s implementation of their policies is contrary to the
9
Court’s prior findings. Plaintiff has not presented evidence that would support a
10
finding that the Board Members were negligent and summary judgment in favor of
11
the Board Members is appropriate.
1
2
3
4
5
12
3.
Negligence and failure to report against Reed
13
As to Defendant Reed, the Riverside Defendants argue the Court should find
14
Reed’s actions were “objectively reasonable” as a matter of law and dismiss both
15
the negligence and failure to report claims against her. ECF No. 226 at 22. The
16
Riverside Defendants present no legal authority supporting this determination in
17
their one-paragraph devoted to the issue and they fail to address the question of
18
whether any reasonable trier of fact could find her actions unreasonable. Id. They
19
even note that the issue of reasonableness is ordinarily left to the finder of fact. Id.
20
On April 16, 2015, G.B. told Reed that his “mother punched” him in the head, and
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 19
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7479 Page 20 of 29
1
Reed did not report this. ECF No. 171-3 at 24. Reed has provided facts supporting
2
her argument that she did not believe that this statement was a sign of abuse,
3
including that G.B. had difficulty communicating and regularly misused words, that
4
he was smiling and happy when he made the statement, that he had no marks on
5
his body, and that he had never showed signs of fear toward Khaleel. ECF No. 228
6
at 2–3. However, viewing the facts in the light most favorable to Plaintiff, a
7
reasonable juror could determine that despite these mitigating facts, Reed’s failure
8
to act on G.B.’s statement was not objectively reasonable and the Riverside
9
Defendants’ motion for summary judgment is denied on these claims.
10
4.
Failure to Report against Board Members, Murray, and Kramer
11
The Riverside Defendants assert the claims against the Board Members,
12
Murray, and Kramer for failing to report suspected abuse fail as a matter of law
13
because these defendants did not know about the signs of abuse until after G.B’s
14
death. ECF No. 226 at 1921. Plaintiff does not respond to this assertion as to the
15
Board Members, but argues the claims against Murray and Kramer should survive
16
summary judgment because there are genuine disputes of material fact.
17
Wash. Rev. Code § 26.44.030 requires certain listed persons who have
18
“reasonable cause to believe that a child has suffered abuse or neglect,” to “report
19
such incident, or cause a report to be made to the proper law enforcement agency
20
or to the department.” Wash. Rev. Code § 26.44.030(1)(a). Washington courts have
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 20
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7480 Page 21 of 29
1
found that this creates an implied civil cause of action against a mandatory reporter
2
who fails to report suspected abuse. Beggs v. Dep’t of Soc. & Health Servs., 247
3
P.3d 421, 425 (Wash. 2011). The statute defines “reasonable cause” as “a person
4
[who] witnesses or receives a credible written or oral report alleging abuse,
5
including
6
Code 26.44.030(1)(b)(iii).
sexual
contact,
or
neglect
of
a
child.”
Wash.
Rev.
7
The Riverside Defendants do not dispute that the individual Riverside
8
Defendants were mandatory reporters under Wash. Rev. Code § 26.44.030. See
9
ECF No. 226 at 19; see also ECF No. 339 at 6 (“The RSD Defendants do not
10
dispute that the individual defendants were mandatory reporters.”). However, as the
11
Riverside Defendants note, Plaintiff has not put forth evidence that the Board
12
Members were aware of the signs of G.B.’s alleged abuse and thus could not have
13
had reasonable cause to believe that a G.B. suffered abuse so as to trigger a reporting
14
responsibility under the statute. ECF No. 226 at 19; see Boone v. Dept’ of Soc. &
15
Health Servs., 403 P.3d 873, 881 (Wash. Ct. App. 2017) (where nothing in record
16
demonstrated defendant had reasonable cause to believe child had suffered abuse,
17
reporting requirements of statute were not triggered).
18
Similarly, as to Kramer, Plaintiff has not put forward any argument or fact
19
20
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 21
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7481 Page 22 of 29
1
showing that Kramer had reasonable cause to believe G.B. was being abused.8 As
2
to Kramer, there is evidence that she only became aware of the alleged evidence of
3
abuse after G.B.’s death. ECF No. 171-2 at 9. However, there is evidence that
4
Murray was aware of the alleged signs of abuse in October and November 2014
5
and, as such, the Riverside Defendants have not shown summary judgment is
6
appropriate for a claim for failure to report as to Murray. See ECF No. 171-10 at 2.
7
Thus, judgment as a matter of law in favor of the Board Members and Kramer is
8
appropriate as to their alleged failure to report under Wash. Rev. Code § 26.44.030,
9
though summary judgment is inappropriate as to Murray.
10
B.
Plaintiff’s motion for summary judgment
11
Plaintiff’s motion for summary judgment does not seek judgment on any
12
particular claim, but rather asks the Court to resolve certain legal and factual issues
13
under Plaintiff’s various claims as a matter of law. ECF No. 336. Specifically,
14
Plaintiff asks the Court to declare that
(1) [Wash. Rev. Code] § 26.44.030 provides for a civil remedy; (2) the
15
16
17
18
19
20
8
Of note, Plaintiff’s argument in opposition to summary judgment on these claims
is irrelevant to the issue of mandatory reporting. Plaintiff argues that “[b]ecause this
Court and the Ninth Circuit determined that Kramer’s actions could support a 42
U.S.C. § 1983 claim, issues of material fact exist as to whether her negligent
performance of her duties was causally linked to G.B.’s death.” ECF No. 342 at 20.
Plaintiff’s arguments in relation to Murray are similarly irrelevant to the issue of
failure to report. Id. at 2021. While these are disputes of material fact going to
negligence and § 1983 claims against Kramer and Murray, nothing in Plaintiff’s
arguments addresses the failure to report claim against these Defendants.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 22
Case 2:17-cv-00062-SMJ
1
2
3
4
5
6
7
8
ECF No. 368
filed 06/01/20
PageID.7482 Page 23 of 29
Individual RSD Defendants, and Riverside School District (“RSD”)
vicariously, were all subject to the duty to report under [Wash. Rev.
Code] § 26.44.030; (3) the Individual RSD Defendants, and RSD
vicariously, were all subject to the in loco parentis duty to take
reasonable care to protect students from foreseeable harm; (4) G.B.’s
death as a result of child abuse or neglect was foreseeable to RSD and
fell within the general field of danger flowing from that risk; (5) the
implementation of reporting practices at Chattaroy Elementary School
[] constitutes an “affirmative action” under the state created danger
doctrine; (6) the danger of child abuse and neglect to G.B. was “known
and obvious” to RSD and the Individual RSD Defendants; (7) Roberta
Kramer and Juanita Murray were “supervisors” for § 1983 purposes;
(8) Kramer and Murray were the “final policymakers” for RSD in the
in the area of implementing reporting procedures at CES; and (9) the
constitutional right alleged here is well-established so the Individual
RSD Defendants are not entitled to qualified immunity.
9
ECF 336 at 34.
10
11
12
1.
Undisputed assertions
Certain of Plaintiff’s requests are not in dispute. First, Wash. Rev. Code
§ 26.44.030 creates an implied civil cause of action against a mandatory reporter
13
14
who fails to report suspected abuse. Beggs, 247 P.3d at 425. The Riverside
Defendants do not dispute that the statute creates a civil remedy for statutory
15
16
17
18
19
20
beneficiaries. ECF No. 339 at 56. The Court reserves ruling on the issue of
whether Plaintiff is entitled to recover under this theory as a statutory beneficiary.
Second, the statutes identifies “professional school personnel” as required
reporters. Wash. Rev. Code § 26.44.030(1)(a). The Riverside Defendants do not
dispute that the individual Riverside Defendants were mandatory reporters under
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 23
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7483 Page 24 of 29
1
Wash. Rev. Code § 26.44.030. ECF No. 339 at 6. As such, the Court finds it
2
appropriate to determine that the individual Riverside Defendants were mandatory
3
reporters under Washington law. However, the Court is not determining whether
4
any individual defendant had reasonable cause under the statute to believe G.B. was
5
being abused.
6
Third, a public entity is not liable for negligence unless it owes a duty to the
7
plaintiff individually rather than the public in general. Vergeson v. Kitsap County,
8
186 P.3d 1140, 1145 (Wash. 2008). Where school attendance is mandatory, “the
9
protective custody of teachers is mandatorily substituted for that of the parent.”
10
McLeod v. Grant County Sch. Dist., 255 P.2d 360, 362 (Wash. 1953); see also
11
Johnson v. State, 894 P.2d 1366, 1370 (Wash. Ct. App. 1995) (citing McLeod, 255
12
P.2d at 362). Thus, a “school district must ‘take certain precautions to protect the
13
pupils in its custody from dangers reasonably to be anticipated.’” (citing McLeod,
14
255 P.2d at 362). The Riverside Defendants do not dispute that they had a legal duty
15
to protect G.B. from foreseeable harm, nor do they assert the “public duty doctrine”
16
applies. ECF No. 339 at 6. The Court thus finds the Riverside Defendants had a
17
duty to protect G.B. from foreseeable harm.
18
Finally, in § 1983 claims, supervisory liability can be imposed only if (1) the
19
supervisor was personally involved in the constitutional deprivation, or (2) there is
20
a sufficient causal connection between the supervisor’s wrongful conduct and the
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 24
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7484 Page 25 of 29
1
constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989). The
2
Riverside Defendants do not dispute that Kramer and Murray were supervisors for
3
the purpose of § 1983 but argue that there are underlying factual disputes over
4
whether they participated or had knowledge of the violations and failed to act. ECF
5
No. 339 at 1920. Because the Riverside Defendants do not dispute that Murray
6
and Kramer were supervisors for the purposes of § 1983, the Court will grant the
7
motion. The Court reserves the issue of whether Murray and Kramer are subject to
8
liability under § 1983 in their role as supervisors.
9
2.
Assertions requiring the Court to find G.B. was abused
10
Plaintiff also asks the Court to find that “G.B.’s death as a result of child
11
abuse or neglect was foreseeable to RSD and fell within the general field of danger
12
flowing from that risk,” and that the danger of child abuse and neglect to G.B. was
13
“known and obvious” to the Riverside Defendants. ECF No. 336 at 34, 1011, 15.
14
The Riverside Defendants correctly note that for the Court to determine that
15
G.B.’s death was a foreseeable harm, it must determine that G.B. was abused and
16
that his death was caused by abuse. ECF No. 339 at 67. The question of whether
17
G.B. was abused and whether the Riverside Defendants knew or should have known
18
that he was being abused are at the core of this litigation. The Riverside Defendants
19
have presented facts that, when viewed in the light most favorable to them as the
20
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 25
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7485 Page 26 of 29
1
nonmoving parties, could support a finding that G.B. was not abused and his death
2
was accidental. These include the DSHS’s finding that the reported abuse was
3
unfounded, ECF No. 199-2, and the Riverside Defendants’ expert reports
4
presenting alternative explanations for G.B.’s death, ECF No. 341-6; ECF
5
No. 341-7. Further, the Riverside Defendants have put forward evidence that would
6
support a finding that G.B.’s abuse and death were not foreseeable. This includes
7
the alternative explanations for his injuries and multiple staff members’ testimony
8
that they did not believe G.B. was being abused. ECF No. 171-1 at 19, 25; ECF
9
No. 171-3 at 20, 27. Thus, a dispute over material fact exists as to these issues and
10
summary judgment is not appropriate.
11
3.
Claims barred by the law of the case doctrine
12
Finally, Plaintiff asks the Court to rule as a matter of law that (1) “the
13
implementation of reporting practices at Chattaroy Elementary School [] constitutes
14
an ‘affirmative action’ under the state created danger doctrine,” (2) “Kramer and
15
Murray were the ‘final policymakers’ for RSD in the in the area of implementing
16
reporting procedures at [Chattaroy Elementary School],” and (3) “the constitutional
17
right alleged here is well-established” so the individual Riverside Defendants are
18
not entitled to qualified immunity. ECF No. 236 at 34, 1321.
19
As described in more detail above, “the law of the case doctrine ordinarily
20
precludes reconsideration of a previously decided issue.” Alexander, 106 F.3d
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 26
Case 2:17-cv-00062-SMJ
ECF No. 368
filed 06/01/20
PageID.7486 Page 27 of 29
1
at 876. The Court previously determined that material factual questions remain as
2
to whether the reporting practices at Chattaroy Elementary School constituted an
3
affirmative action under the state created danger doctrine. ECF No. 221 at 27. The
4
Court has also previously determined that
5
6
7
8
9
10
11
12
material disputed issues of fact remain concerning (1) the nature of the
child-abuse reporting practices employed at Chatteroy Elementary
School, including whether staff were required to report suspected
abuse only to designated staff or administrators and whether staff were
encouraged to delay or avoid reporting suspected abuse; (2) whether
such practices affirmatively placed G.B. in danger; and (3) whether
adopting and implementing such practices amounted to deliberate
indifference. And there is little question that Kramer and Murray were
responsible for adopting and implementing whatever practices were in
place at Chatteroy Elementary School. Issues of fact therefore remain
concerning whether their actions affirmatively placed G.B. at risk of
harm and amounted to deliberate indifference to a known or obvious
risk of danger. And because issues of fact preclude summary judgment
on the basis that Kramer and Murray had no obligation to protect G.B.
from harm by a third party, the same factual questions preclude
qualified immunity at this stage.
13
14
ECF No. 221 at 3738. Plaintiff fails to identify any material facts that have arisen
15
since this Order that would merit deviating from the Court’s prior findings. As such,
16
the Court finds, consistent with its prior Order, that a dispute over material fact
17
exists as to each of the identified issues and the motion is denied as to these issues.
18
Accordingly, IT IS HEREBY ORDERED:
19
1.
20
The Riverside Defendants’ Motion for Summary Judgment on All
Claims, ECF No. 226, is GRANTED IN PART and DENIED IN
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 27
Case 2:17-cv-00062-SMJ
ECF No. 368
1
A.
PageID.7487 Page 28 of 29
PART as follows:
2
filed 06/01/20
Plaintiff’s claims for outrage against each of the Riverside
Defendants are dismissed.
3
4
B.
Plaintiff’s claims for failure to report under Wash. Rev. Code
5
§ 26.44.030 against the Board Members and Kramer are
6
dismissed.
7
C.
Plaintiff’s claims for negligence against the Board Members are
dismissed.
8
9
D.
The Riverside Defendants’ motion for summary judgment is
10
denied to the extent they seek to dismiss all claims for failure to
11
show causation, as to Plaintiff’s state law claims against Reed
12
and the teachers and staff, her claims for negligence against the
13
Board Members, and her claim against Murray for failure to
14
report.
15
2.
Plaintiff’s Motion for Summary Judgment Against Riverside School
16
District and Related Individual Defendants, ECF No. 236, is
17
GRANTED IN PART and DENIED IN PART as described above.
18
19
20
3.
The Court determines the following:
A.
There is an implied civil cause of action against a mandatory
reporter who fails to report suspected abuse.
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 28
Case 2:17-cv-00062-SMJ
1
B.
C.
6
7
PageID.7488 Page 29 of 29
The individual Riverside Defendants were mandatory reporters
The Riverside Defendants had a duty to protect G.B. from
foreseeable harm.
4
5
filed 06/01/20
under Washington law.
2
3
ECF No. 368
D.
Defendants Murray and Kramer were supervisors for the
purpose of the § 1983 claims against them.
IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
8
provide copies to counsel for all parties.
9
DATED this 1st day of June 2020.
10
11
_________________________
SALVADOR MENDOZA, JR.
United States District Judge
12
13
14
15
16
17
18
19
20
ORDER GRANTING IN PART AND DENYING IN PART RIVERSIDE
DEFENDANTS’ AND PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT – 29
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