Campbell v. State of Washington Department of Social and Health Services et al

Filing 120

ORDER by Judge John C Coughenour. Defendant Pate's Motion for Summary Judgment (Dkt. No. 59 ), and Defendants Mitchell and McGenty's Motion for Partial Summary Judgment (Dkt. No. 60 ), are hereby GRANTED. Defendant's Motion for Leav e to File Excess Pages (Dkt. No. 83 ) and Plaintiff's Motion to Exclude [Expert Witness] Testimony (Dkt. No. 116 ) are DENIED as moot. Plaintiff's Notice of Supplemental Authority (Dkt. No. 95 ) is DENIED; Defendants Motion to Strike this authority is GRANTED. (KL)

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THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

LORAINE CAMPBELL, individually and as personal representative of the Estate of JUSTINE BOOTH, CASE NO. C08-0983-JCC Plaintiff, ORDER

STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, including but not limited to the Division of Developmental Disabilities; LASHONDA MARIE MITCHELL, individually and in her official capacity acting under color of state law; MURINE LEE MCGENTY, individually and in her official capacity acting under color of state law; SONJA PATE, individually and in her official capacity acting under color of state law, Defendants.

This matter comes before the Court on Defendant Sonja Pate's Motion for Summary Judgment (Dkt. No. 59), Plaintiffs' Response (Dkt. No. 74), and Defendant's Reply (Dkt. No. 81); as well as Defendants Lashonda Marie Mitchell and Murine Lee McGenty's Motion for Partial Summary Judgment (Dkt. No. 60), Plaintiffs' Response (Dkt. No. 74), and Defendants'

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Reply (Dkt. No. 72). 1 The Court has carefully considered these papers, their supporting declarations and exhibits, and the balance of relevant materials in the case file, and has determined that oral argument is not necessary. For the reasons explained below, the Court hereby GRANTS Defendants' motions and rules as follows. I. BACKGROUND The facts of this case are undeniably tragic. Plaintiff Lorraine Campbell's developmentally disabled daughter, Justine Booth, died soon after she was found partially drowned in a bathtub while she was under in-home care of state employees through Washington's State Operated Living Alternatives program ("SOLA"). Plaintiff brought suit under 42 U.S.C. § 1983 against officials of the State of Washington Department of Social and Health Services ("DSHS"), which operated the SOLA program, claiming that the officials responsible for Justine's care violated her due process rights under the Fourteenth Amendment by failing to provide Justine with reasonably safe conditions while she was in state custody. (Pl.'s Resp. 2 (Dkt. No. 74).) Plaintiff also claims that the State deprived her of her own due process rights by denying her the companionship of her child. (First Am. Compl. 1011 (Dkt. No. 24).) At the time of her death, Justine was a 33-year-old woman diagnosed with a severe seizure disorder and significant cognitive disability, who received residential supported living services from individuals trained and employed by DSHS through the SOLA program. (First Am. Compl. ¶ 18 (Dkt. No. 24).) Defendants Mitchell and McGenty were attendant care professionals, employed by SOLA, who were responsible for Justine's care on the night in

Plaintiff's attempt to submit Supplemental Authority (Dkt. No. 95) was neither timely nor relevant for purposes of deciding these Motions. Accordingly, Defendants Motion to Stike Plaintiff's Notice of Supplemental Authority is GRANTED. Because the Court is granting summary judgment on all outstanding claims, Defendant's Motion for Leave to File Excess Pages (Dkt. No. 83) and Plaintiff's Motion to Exclude [Expert Witness] Testimony (Dkt. No. 116) are DENIED as moot. ORDER PAGE - 2

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question. (See Def. Mitchell & McGenty Mot. 3 (Dkt. No. 60).) As the Attendant Counselor Manager ("AC Manager") for the SOLA program, Defendant Pate oversaw the provision of services, supervising and ensuring the competency of employees, including Mitchell and McGenty. (Pate Decl. ¶ 3 (Dkt. No. 59-3).) Pate also developed and monitored the Individual Support Plans ("ISPs") for Justine and other clients. The SOLA program provides assisted living services to clients in private homes that they themselves lease. (Id.) Justine leased a home in Kent with two other SOLA clients. (Def. Mitchell & McGenty Mot. 3­4 (Dkt. No. 60).) Justine and Campbell selected the SOLA program in 1990, (see 4/17/90 DSHS Letter (Dkt. No. 75 at 18)), in part because Campbell wanted Justine to live a "somewhat independent, normal life," and "do as much as she could." (Campbell Dep. 157:24­158:12 (Dkt. No. 85 at 12­13)). While living in the SOLA home in Kent, Justine had round-the-clock care, but she also frequently rode a van to visit Campbell on her own. (Id. at 156:12­18.) Upon enrolling Justine in SOLA in 1990, Plaintiff received a letter from DSHS, thanking Justine for "deciding to participate in our program." (4/17/90 DSHS Letter (Dkt. No. 75 at 18).)The letter clearly informed Justine and Campbell that "your participation in the DDD Region 4 ­ State Operated Living Alternatives (SOLA) is voluntary, and that you may withdraw your request for services at any time by contacting your Field Services Office (FSO) Case Manager." (Id.) According to Defendant Mitchell's witness statement, shortly after 8:00 p.m. on the night of Justine's death, McGenty told Justine to take her bath and began running bath water for her, filling the tub to approximately five or six inches. (Mitchell Witness Statement 7­8, 12, 36 (Dkt. No. 62 at 9­10, 14, 38).) Mitchell reported that they were able to hear Justine while she was in the tub, but there was no baby monitor in the bathroom. (SOLA Investigation Report 35 (Dkt. No. 75 at 129).) Justine got in the bath at around 8:05 or 8:06 p.m. (Mitchell Witness Statement 36 (Dkt. No. 62).) The caregivers then attended to the other residents (for ORDER PAGE - 3

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example, giving one of the other residents a piece of pie) and watched TV in the living room, periodically entering the room where Justine was bathing and reporting to each other on the status of Justine's washing. (See id. at 8­13, 38 (Dkt. No. 62 at 10­15, 40).) McGenty discovered Justine unconscious and not breathing at approximately 8:20 p.m. (Id. at 37 (Dkt. No. 62 at 39).) During these twenty minutes, the attending caregivers had checked on Justine three times. (See id. at 8­12, 36­37.) Justine never regained consciousness and died one week after the incident. (First Am. Compl. ¶ 49­51 (Dkt. No. 24).) II. DISCUSSION Defendants Pate, Mitchell, and McGenty have moved for summary judgment on a collective total of seven theories. Two of these, however, are ultimately dispositive. All Defendants have argued that Plaintiff's complaint does not state a viable constitutional cause of action, because Justine was voluntarily receiving care services from the State. (Def. Mitchell & McGenty's Mot. 10­12 (Dkt. No. 60); Def. Pate's Mot. 2 (Dkt. No. 59) (adopting Mitchell & McGenty's arguments). ) In the alternative, all Defendants have argued that they are entitled to qualified immunity because the conduct in question did not violate a clearly established constitutional right. (Id.) Because the Court finds that: (1) Justine's participation in the SOLA program was voluntary, and, as a consequence, the State of Washington did not owe her a duty to provide reasonably safe conditions, and (2) even assuming that Justine had such a right, it was not clearly established, it is unnecessary to consider Defendants' other arguments. Accordingly, the Court GRANTS summary judgment to Defendants on all federal constitutional claims. A. Summary Judgment Standard Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the nonmoving party, the Court determines there are no genuine issues of material fact. FED. R. CIV. P. 56(c). There is no genuine issue of fact for a trial where the record, taken ORDER PAGE - 4

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as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court must inquire into "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251­52 (1986). The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is in fact a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323­24. B. Justine's Due Process Claims: Reasonably Safe Conditions In order to state a claim under 42 U.SC. § 1983, a plaintiff must show that: (1) the defendant acted under color of state law; and (2) the defendant's conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330­31 (1981).) In this case, it is undisputed that Defendants were acting under color of state law while engaged in administering the SOLA program. (See Pl.'s Resp. 13 (Dkt. No. 74).) The issue before the Court, therefore, is whether Defendants deprived Justine of any legally cognizable right secured by the Fourteenth Amendment's Due Process Clause. The Due Process Clause forbids the States from depriving a person of "life, liberty or property without due process of the law . . ." U.S. CONST. amend. XIV, cl. 1. In general, mere lack of due care by a state official does not deprive an individual of her due process rights, Daniels, 474 U.S. at 330­31, because the clause "confer[s] no affirmative right to governmental aid." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 ORDER PAGE - 5

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(1989). The Due Process Clause is "a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." Id. at 195­96. That is, the government generally has no affirmative duty to provide safe conditions, even if nonfeasance results in grave injury. In DeShaney, for example, the Supreme Court held that county officials did not violate a young boy's due process rights when, despite repeated warnings, they failed to take action to protect a boy from beatings by his father. Id. at 191. However, the Supreme Court has articulated a limited exception to this principle when the government takes a person into custody and holds him there against his will, either through incarceration or through involuntary civil commitment. Id. at 200. This "special relationship" gives rise to affirmative duties on the part of the Government to provide reasonably safe conditions and other fundamentals of care. For example, in Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Court found that the government had an obligation under the Eighth Amendment to provide medical care for incarcerated persons. Youngberg v. Romeo, 457 U.S. 307, 324 (1982), extended Estelle, holding that an involuntarily committed individual had a constitutionally protected interest in reasonably safe conditions and freedom from unreasonable restraint. The Supreme Court in DeShaney articulated its reasoning for the exceptions it had provided in Estelle and Youngberg: The rationale for this principle is simple enough: when the State by an affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs--e.g. food, shelter, medical care, and reasonable safety--it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expression of intent to help him, but from the limitation which it has imposed on his freedom. DeShaney, 489 U.S. at 200 (citations omitted). In other words, unless the State has taken affirmative steps to restrain an individual so that she is unable to protect or care for herself, the State has no affirmative constitutional duty of care.

ORDER PAGE - 6

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In interpreting this precedent, decisions from the First, Second, Third, Fifth, and Eighth Circuit Court of Appeals have held that a developmentally disabled, or mentally ill, individual who is free to leave state custody has no Youngberg due process rights. 2 Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 991 (1st Cir. 1992) ("Here, where no such involuntary commitment has occurred, [Plaintiff's] "special relationship" argument is without force."); Brooks v. Giuliani, (84 F.3d 1454, 1466 (2d Cir. 1996) ("[I]t is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty--which is the "deprivation of liberty" triggering . . . the Due Process Clause . . . Plaintiffs here are under no state-imposed restraint."); Torisky v. Schweiker, 446 F.3d 438 (3d Cir. 2006) ("We hold that the District Court erred in concluding that the state owes an affirmative due process duty of care to residents of a state institution who are free to leave state custody); Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir. 1995) ("[i]n short, this `special relationship' does not arise solely because the state exercises custodial control over an individual when a person voluntarily resides in a state facility under its custodial rules") (emphasis in original); Kennedy v. Shaffer, 71 F.3d 292, 295 (8th Cir. 1995) (summary judgment was inappropriate where material fact remained as to whether mental health patient on suicide watch may have effectively become an involuntary patient). Most courts have looked beyond the official label of "voluntary" versus "involuntary" in a patient's relationship with the State to determine whether the plaintiff's liberty was truly restrained, thus giving rise to an affirmative obligation of care. In Kennedy, for example, a case in which a mentally ill minor committed suicide while under state custody, the court noted that Missouri law allowed the State to refuse the release of a voluntary mental patient upon a determination that the patient is a risk to herself or others. Kennedy, 71 F.3d at 295. Because

2

The Court can find no Ninth Circuit decisions on this issue.

ORDER PAGE - 7

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the State could have restricted the patient's liberty, the question of fact as to the voluntariness of her commitment precluded summary judgment. Id. 3 Likewise, in Monahan, the First Circuit looked beyond the patient's "voluntary" status for a relationship whereby the plaintiff was a "de facto ward of the state," such that the "sufficient combination of helplessness on the part of the deceased, and wanton callousness on the part of those caring for her," would give rise to due process obligations toward a voluntary mental patient. Monahan, 961 F.2d at 992. Because the plaintiff's mental condition alone was the limiting factor on his freedom, and not any affirmative action on the part of the State, the court found that the plaintiff had not stated a constitutional claim. And in Brooks, even though the patients' commitment to out-of-state treatment facilities did not give rise to Youngberg rights, an "involuntary transfer" to in-state facilities would "restrict plaintiffs' liberty" and thereby "implicate the Due Process Clause." 84 F.3d at 1467. In Torisky, the case relied on most heavily by Plaintiff, the plaintiffs were guardians of twenty mentally handicapped adults who were voluntary patients of state-run institution. Id. at 441. The State had tried to transfer these handicapped adults to private facilities against the will of their guardians. Id. During the protested transfer, state police raised a physical blockade to separate the patients from their parents, guardians, and other family. The Torisky court noted that the Supreme Court in Youngberg had emphasized the need to focus on the facts and circumstances of each case, and accordingly allowed that some voluntarily committed persons may find themselves in "de facto involuntary status" if they were no longer allowed to leave state custody. Torisky, 446 F.3d at 446­48. The court found that the combination of "physical and psychological force" used by state employees during the course of the transfer indicated

In so holding, the Eighth Circuit declined to pass on the issue of whether a voluntary mental patient enjoys the same due process protections as an involuntary patient, as it was unnecessary, at that time, to consider this "difficult constitutional question." Kennedy, 71 F.3d at 295. ORDER PAGE - 8

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that "plaintiffs may be able to prove facts . . . that would establish a deprivation of liberty and a violation of Youngberg's duty of care and protection." Id. at 448. On balance, these cases suggest that, depending on the facts and circumstances of the case, a voluntarily committed patient can become a de facto involuntary patient if her freedom was--or, in some circuits, could have been--curtailed by the power of the State. 4 The Court finds these cases to be, on the whole, well-reasoned. DeShaney, in no uncertain terms, limited the due process obligation to provide affirmative care to cases where the State "takes a person into its custody and holds him there against his will." DeShaney, 489 U.S. at 199­200. The key to the due process obligation to provide care, therefore, is the State's affirmative steps in restraining the individual's liberty, in spite of her desires to the contrary. The State only acquires an affirmative constitutional obligation to provide a safe environment to a developmentally disabled individual when the State prevents that individual from leaving its custody. In this case, Plaintiff seems to acknowledge that her daughter's initial participation in SOLA was officially voluntary, but asserts that her custody become de facto involuntary based

It is, in fact, a generous reading of DeShaney to assume that the mere power to restrain is equivalent to the exercise of that power. See Kennedy, 71 F.3d at 295. The Court declines, however, to pass on this constitutional question, because the facts of this case do not require the Court to consider it. Cf. Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945). Justine was neither barred from leaving, nor is there any evidence to suggest that she could have been so barred under Washington law. Involuntary detention in a residential treatment facility is generally prohibited in this state. WASH. REV. CODE 11.92.190. If a person who has been voluntarily admitted presents "an imminent likelihood of serious harm, or is gravely disabled," then the staff of the residential treatment facility may detain that person for a limited time for further authorization and evaluation. WASH. REV. CODE 71.05.050. Unlike in Kennedy, where the deceased was on Precautionary Suicide Watch and, under a similar Missouri statute, the State could have prevented her from leaving, the parties have not argued here that Justine was in "imminent likelihood of serious harm" as a result of her condition, nor have they argued that her developmental disabilities meant that she rose to the level of "gravely disabled." Plaintiff has presented no evidence, and indeed has not argued, that the state could have involuntarily committed her under Washington law. ORDER PAGE - 9

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on the attendant facts and circumstances. (Pl.'s Resp. 5­6, 16­17 (Dkt. No. 74).) Plaintiff's evidence in support of this proposition is sparse. Even overlooking the evidentiary issues raised by Defendants, for purposes of argument, the Court finds that Plaintiff's constitutional claims cannot withstand summary judgment. In a summary judgment motion, the moving party bears the initial burden of showing that there is no evidence to support the nonmovant's claims. Celotex, 477 U.S. at 322. Justine entered the SOLA program voluntarily; she chose SOLA with her mother in 1990, and her welcome letter from DSHS declared her voluntary status in no uncertain terms. (4/17/90 DSHS Letter (Dkt. No. 75 at 18).) Defendant Pate notes, correctly, that there is no evidence that would demonstrate a change in the legal relationship between Justine and the State after the date of her voluntary enrollment. (Pate Reply 3 (Dkt. No. 81).) Although the Court will look beyond the label of "voluntary" versus "involuntary" to determine whether the State had taken an affirmative act to keep Justine in its care against her will, the official terms of her SOLA care are persuasive. Pate also points out that SOLA is a Medicare waivered services program, meaning that service recipients like Justine are required by law to be given free choice of providers, and may choose to disenroll from the waiver. 42 U.S.C. § 1396; see also Wash. Admin. Code § 388-845-0060(1)(e). Finally, Defendants Mitchell and McGenty assert, and Plaintiff agreed, that a cornerstone of SOLA is its focus on independence and normal living. (See Def. Mitchell & McGenty Mot. 11 (Dkt. No. 60); Campbell Dep. 157­58 (Dkt. No. 85 at 13).) On balance, Defendants have met their initial burden; they have demonstrated that the State had not taken any affirmative steps, nor could it take those steps, to restrict Justine's freedom to choose whether to remain in the SOLA program. Once the movant has met her burden, the nonmoving party must show that there is a genuine issue of material fact in order to prevent summary judgment. Anderson, 477 U.S. at 250. In the present case, Plaintiff has not raised evidence sufficient to show there is a genuine issue of material fact for trial. Plaintiff repeats that Justine was under "state custody and ORDER PAGE - 10

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control," (see, e.g., Pl.'s Resp. 16 (Dkt. No. 74)), but this assertion misses the point--the question is not whether Justine was under state care, but whether she was involuntarily in that care, such that the State either did, or could have, prevented her from exiting the SOLA program, despite her wishes to the contrary. Looking at Plaintiff's assertions in the light most favorable to her case, the facts she alleges created a de facto involuntary commitment are as follows. First, Plaintiff alleges that SOLA placed locks on the door of Justine's SOLA home so that she could not run away. (Pl.'s Resp. 16­17 (Dkt. No. 74).) Plaintiff also alleges that SOLA maintained exclusive control over Justine's bathing, transportation, diet, and wardrobe. (Id. at 17). Second, Justine was cognitively limited, and, in fact, legally incompetent under Washington Revised Code Section 11.88 because Justine was "incapable of managing either her property or herself and is in need of a full guardian over her person and estate." (Id.; see also Order Appointing Guardian (Dkt. No. 75 at 12­13).) Third, Plaintiff alleges--unsupported by evidence--that Justine was not authorized to move herself out of her SOLA home, or decline services, of her own free will. (Pl's. Resp. 17 (Dkt. No. 74).) Finally, Plaintiff points to the fact that she was stripped of her guardianship rights over Justine in 1995. (See Order on Citation for Contempt of Court (Dkt. No. 75 at 20).) Plaintiff, therefore, alleges that she could not remove Justine from SOLA. (Pl.'s Resp. 17 (Dkt. No. 74).) The divestment of her guardianship rights also meant that Plaintiff was not consulted when SOLA moved Justine to Kent, and, indeed, that Justine was moved against Plaintiff's objections; it also meant that Plaintiff was not present at Justine's 2006 ISP meeting, despite a request to postpone that meeting so that she could attend. (Id.) Even assuming that Plaintiff can prove this body of evidence at trial, there is no genuine issue of material fact here. Justine was not a de facto involuntary patient. First, Plaintiff points primarily to facts that simply ensured Justine's day-to-day safety and care. The facts that Justine relied heavily on SOLA caretakers, and that they put locks on her doors at night, reflect precautions and protocols that were part of her participation in the ORDER PAGE - 11

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program--precautions that were tailored to Justine's particular needs. Justine had a propensity to "elope," and was found headed to the freeway on more than one occasion. (See Admission Medical Evaluation (Dkt. No. 61 at 4).) Under these circumstances, it may have been negligent for her caretakers not to have attempted to curtail Justine's potentially dangerous wanderings. Indeed, Justine appears to have had as much freedom as her medical conditions would safely allow; for example, when her seizure disorder permitted it, she was free to leave the SOLA home, alone, to visit her mother and participate in community activites. (See, e.g., Witness Statement 5­6 (Dkt. No. 62 at 7­8) (describing the open atmosphere of the SOLA home and Justine's participation in Elder Care activities); Campbell Dep. 156:12­24 (Dkt. No. 85 at 11) (describing Justine visiting Plaintiff at her house by taking an Access van).) Most importantly, safety measures, such as locks on her doors at night, do not speak to the legal conclusion that is necessary to find a custodial relationship between Justine and the State--Justine's freedom to exit the SOLA program altogether (not just exit her room) if she, or her guardian, so chose. To hold otherwise would be to open the door to arguments that, for example, elementary school students are in involuntary state "custody" because they are provided with free lunch and prevented from exiting school grounds. The Court therefore holds, as a matter of law, that safety, care, and maintenance precautions alone do not indicate de facto involuntary status. See, e.g., Walton, 44 F.3d at 1299 (stating that Youngberg's protections do not arise solely because the State exercises custodial control over an individual when a person voluntarily resides in a state facility under its custodial rules). Plaintiff's second argument that Justine's mental and legal incapacity rendered her custody involuntary also fails as a matter of law. The Court agrees with the other courts that considered the issue: Incapacity alone does not create de facto involuntary commitment, because this too only speaks to the individual's condition, not the State's power. Only the latter is an appropriate locus for a due process inquiry. As in Monahan, it appears that it was Justine's own mental disability that restricted her freedom to leave SOLA care, not the State. ORDER PAGE - 12

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Monahan, 961 F. 2d at 992. Justine's legal status as an incompetent also does not address the State's actions to restrain her liberty. Legally incompetent individuals are not automatically involuntary wards of the State. See WASH. REV. CODE 11.92.190 (preventing the State from detaining any individual against her will, without involuntary commitment procedures). Third, Plaintiff makes bare assertions that Justine was not free to leave state custody. Plaintiff alleges in her declaration that, as a result of her incapacity, Justine was unable to terminate her participation in the SOLA program, (Campbell Decl. ¶ 22 (Dkt. No. 79 at 4)), but does not provide any documentation to support that contention. Former SOLA employee Bonny Oborn agrees that "because of her legal incapacity, Justine did not have the authority to terminate her participation in SOLA," (Oborn Decl. ¶ 21 (Dkt. No. 78 at 4)), but again this conclusion is unsupported by documentation or authority indicating that the State could have prevented Justine from leaving. Finally, Plaintiff's expert Joan Ramon makes the bare assertion that "it is apparent that Justine's cognitive impairment prevented her from controlling her own participation in the SOLA program." (Ramon Decl. ¶ 25 (Dkt. No. 76).) First, these statements are naked, unsupported assertions of a legal conclusion that the Court could appropriately disregard on a motion for summary judgment. See Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1061 (9th Cir. 2009); F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). These allegations therefore do not provide the evidentiary support necessary to withstand summary judgment under Celotex. More importantly, each of these statements rests its conclusion on an argument already rejected by the Court. Each one states that Justine was not free to exit SOLA custody by reason of her incompetence. As already discussed, Justine's mental impairment is insufficient, as a matter of law, to make her an involuntary ward of the State of Washington, because it speaks only to Justine's own condition, not to the State's power. See Monahan, 961 F. 2d at 992. Nothing in any of these declarations indicates that SOLA employees could prevent Justine from leaving the program, if she--or someone authorized to make decisions on her behalf--choose to do so. ORDER PAGE - 13

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Finally, the most perplexing issue in this constellation of facts has to do with Plaintiff's status as Justine's guardian. Plaintiff asserts that her guardianship over Justine's "person and estate" was terminated by court order in 1995. (Campbell Decl. ¶ 14, 15, 16 (Dkt. No. 79 at 3). 5 She states that, after her guardianship lapsed, her treatment by SOLA officials changed; she states that she was not permitted to delay the 2006 meeting as to her ISP to permit her attendance, and that Justine was moved out of Seattle, and to Kent county, over her objections. (See id; see also Campbell Decl. ¶ 15 (Dkt. No. 79 at 3).) 6 However, even if Plaintiff were divested of the guardianship over Justine's person, the fact that Plaintiff was no longer Justine's legal guardian does not necessarily mean that no one could remove her from SOLA--that the State, by virtue of Plaintiff's lapsed guardianship, somehow became vested with the authority to prevent Justine from leaving SOLA care. Again, the focus in this due process inquiry is not on Justine, or on her guardian--it is on the power of the State to hold Justine against her will. See Deshaney, 489 U.S. at 195 (the Due Process

The Court is skeptical that termination of guardianship of estate somehow left Justine, a legally incompetent individual, without a guardian over her person. Plaintiff was appointed guardian of Justine's "person and estate" as of November 13, 1991. (Order Appointing Guardian 2 (Dkt. No. 75 at 13).) In 1995, Plaintiff was apparently held in contempt of court for failing to "properly complete the estate"; the applicable court order indicates that "guardian as to the estate is terminated." (Order on Citation for Contempt of Court ¶ 3, 6A (Dkt. No. 75 at 20) (emphasis added).) Guardianship as to estate, and guardianship as to person, are distinct in Washington. The latter requires the guardian to marshal the ward's assets and make certain filings, WASH. REV. CODE 11.92.040, which Plaintiff apparently failed to do (Campbell Dep. 65 (Dkt. No. 85 at 5)), while the former requires the guardian to "care for and maintain the incompetent." WASH. REV. CODE 11.92.043. However, all parties assumed that Plaintiff's guardianship had lapsed in its entirety. (Campbell Dep. 65­66 (Dkt. No. 85 at 5-6).) Neither party has briefed the Court on what effect the termination of Plaintiff's guardianship over Justine's estate had over Justine's legal status--i.e. who, precisely, was Justine's legal guardian after Plaintiff's guardianship lapsed (if it did)--so that issue is not properly before the Court. As explained, however, the resolution of this puzzle is not material for the disposition of this case. 6 Plaintiff's evidence indicates that she was, in fact, present at nearly every one of Justine's annual ISP meetings from 1995, when her guardianship lapsed, to 2006, when Justine died. (See Def. Repl. 6 (Dkt. No. 84).) ORDER PAGE - 14

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Clause duties only arise out of the "limitation which [the State] has imposed on [the patient's] freedom to act on his own behalf"). It would be illogical--not to mention bad precedent--to hold that a family member can convert a voluntary placement into an involuntary one by letting paperwork lapse. As discussed, the State must make some affirmative act in restraining a person against her wishes in order to incur positive obligations of care under the Due Process Clause. In sum, these facts speak to Justine's legal relationship with her mother, not with the State, and are insufficient as a matter of law to establish that Justine's home care through SOLA was de facto involuntary commitment. Taken as a whole, Plaintiff's evidence is simply insufficient to demonstrate that the State itself, rather than Justine's own disabilities and Plaintiff's failure to complete the guardianship paperwork, prevented her from leaving SOLA care. Ultimately, Plaintiff has not provided sufficient evidence that would allow a rational trier of fact to conclude that the State took the affirmative steps necessary to eliminate Justine's freedom and choice. Because Justine received SOLA care voluntarily, under DeShaney and its progeny, Justine had no due process liberty interest in safe conditions that the government was obliged to protect. Plaintiff's § 1983 claim for violations of her constitutional rights must therefore fail as a matter of law. 7 C. Campbell's Due Process Claims: Companionship The Ninth Circuit has recognized a parent's liberty interest in the companionship and society of his or her child, and that state interference with that interest without due process creates a cause of action under 42 U.S.C. § 1983. Lee v. City of Los Angeles, 250 F.3d 688, 685 (9th Cir. 2001); see also Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir. 2001) (allowing parents of an adult child who had been shot and killed by police to proceed with their § 1983

Because the Court finds that Justine was voluntarily under state care, the Court does not reach the question of whether Defendants acted with the "deliberate indifference," not mere negligence, required to state a cause of action under § 1983. ORDER PAGE - 15

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action alleging deprivation of companionship and society with their child). The Ninth Circuit has also declined to require a showing of specific intent to deprive parents of companionship or interfere with the parent-child relationship. Rentz v. Spokane County, 438 F. Supp. 2d 1252, 1265 (E.D. Wash. 2006) (citing Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1998)). Plaintiff is therefore correct to assert that she has an interest in the companionship and society of her daughter that is protected by the Due Process Clause. However, her interest only arises where the underlying state action against her daughter rises to the level of a constitutional violation. See, e.g., Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (denying parents' § 1983 claim because state action against their son was not a constitutional violation); Corales v. Bennett, 488 F. Supp. 2d 975 (C.D. Cal. 2007) ("To be actionable under this theory, claims [for violation of the liberty interest in companionship] must be based on underlying wrongful governmental conduct that amounts to a constitutional deprivation.") As discussed above, there was no due process violation of her daughter's rights. Plaintiff's personal claims must therefore also fail as a matter of law. D. Qualified Immunity Even if Plaintiff or Justine had constitutionally protected interests, Defendants are entitled to qualified immunity. Qualified immunity protects a state official from personal liability where her conduct does not violate clearly established state or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where a court determines that the right at issue was not clearly established at the time of the alleged violation, qualified immunity protects the government official. See Callahan v. Pearson, 129 S.Ct. 808, 818 (2009) (no longer requiring courts first to determine whether Plaintiff has shown a general constitutional violation before determining whether that right is clearly established) (overruling Saucier v. Katz, 533 U.S. 194 (2001)). The relevant inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable official that her conduct was unlawful in the situation she confronted. Friedman v. Boucher, 568 F.3d 1119, 1130 (9th Cir. 2009). ORDER PAGE - 16

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Plaintiff bears the burden of showing that the rights she claims were clearly established at the time of the violation. Moran v. State of Wash., 147 F.3d 839 (9th Cir. 1998) (citing Davis v. Scherer, 468 U.S. 183, 197 (1984)). In the present case, Plaintiff has not met that burden. As discussed above, the duty owed to a developmentally disabled person who has been voluntary placed in state care is still in flux. To the extent that Youngberg put Defendants on notice of the duty to provide reasonably safe conditions for developmentally disabled persons, nearly every case interpreting Youngberg--and every one that the Court is aware of at the circuit level--has limited that case's scope to involuntarily committed individuals. As discussed above, SOLA was a voluntary program. Defendants were not reasonably on notice that failing to remain in the bathroom with Justine while she bathed was a constitutional violation. Even if Defendants had interfered with a protected right, this right was not a clearly established one. Defendants are therefore entitled to qualified immunity. III. CONCLUSION For the foregoing reasons, Defendant Pate's Motion for Summary Judgment (Dkt. No. 59), and Defendants Mitchell and McGenty's Motion for Partial Summary Judgment (Dkt. No. 60), are hereby GRANTED. Defendant's Motion for Leave to File Excess Pages (Dkt. No. 83) and Plaintiff's Motion to Exclude [Expert Witness] Testimony (Dkt. No. 116) are DENIED as moot. As explained above, Plaintiff's Notice of Supplemental Authority (Dkt. No. 95) is DENIED; Defendant's Motion to Strike this authority is GRANTED. DATED this 14th day of September, 2009.

A
ORDER PAGE - 17

John C. Coughenour UNITED STATES DISTRICT JUDGE