Opinion
No. CIV 02-1239 JB/KBM.
October 1, 2004
Paul J. Kennedy, Mary Y.C. Han, Adam S. Baker, Kennedy Han, P.C., Albuquerque, New Mexico, Attorneys for the Plaintiff.
Randolph Felker, Bill Winter, Felker, Ish, Ritchie Geer, Santa Fe, New Mexico, Attorneys for the Defendants Anne Holmes and Sonia Perez.
ORDER
THIS MATTER comes before the Court on the Defendants' oral motion for judgment as a matter of law pursuant to rule 50(a) of the Federal Rules of Civil Procedure. The Court heard argument on this motion from both parties on August 16 and 17, 2004. The primary issue is whether the Plaintiff has submitted sufficient evidence on each of the legal claims and against each of the Defendants such that a reasonable jury could find for the Plaintiff on each of the legal claims and against each of the Defendants. Because the Court finds that there is evidence in the record upon which a reasonable jury could base a finding against each Defendant on each legal claim, the Court will deny the motion.
RULE 50(a) STANDARDS
Rule 50(a) of the Federal Rules of Civil Procedure states:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
The Court, in deciding a motion under rule 50(a), should consider all of the evidence in the record and draw all reasonable inferences in favor of the non-moving party. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990). The Court should not make credibility determinations or weigh the evidence.See id.
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). "The court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Lantec, Inc. v. Novell, Inc., 146 F. Supp. 2d 1140, 1143 (D.Utah 2001) (internal quotation marks and citations omitted). Unless the evidence so overwhelmingly favors "the movant as to permit no other rational conclusion, judgment as a matter of law is improper." Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996).
ANALYSIS
I. LEGAL CLAIMS.
Both parties have acknowledged that the framework set forth by the Supreme Court of the United States in DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 196 (1989), forms the lens through which the Court views this case. DeShaney v. Winnebago County Dep't of Social Servs. establishes that the due process clause "generally confer[s] no affirmative right to governmental aid, even when such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." 489 U.S. at 196 (1989). In DeShaney v. Winnebago County Dep't of Soc. Servs., the Supreme Court held that the fact that the state once had custody of a child did not create a constitutional duty to protect the child after the return of the child to his father. See 489 U.S. at 201 ("[T]he State does not become the permanent guarantor of an individual's safety by having once offered him shelter."). The Tenth Circuit has recognized two exceptions to the DeShaney rule that the state is not constitutionally liable for injuries committed by third parties — the danger creation theory and the special relationship doctrine.
A. DANGER CREATION
The first exception — and the first theory on which the Plaintiff bases his claims — is the "danger creation" theory. Relying on dicta in DeShaney, the Tenth Circuit in Currier v. Doran, 242 F.3d 905, 917-18 (10th Cir. 2001), recognized a claim holding state officials liable for the acts of third parties when those officials created the danger that caused the harm. To make out a proper danger creation claim, the plaintiff must demonstrate that: (i) the charged state entity and the charged individual actors created the danger or increased the plaintiff's vulnerability to the danger in some way; (ii) the plaintiff was a member of a limited and specifically definable group; (iii) the defendants' conduct put the plaintiff at substantial risk of serious, immediate and proximate harm; (iv) the risk was obvious or known; (v) the defendants acted recklessly in conscious disregard of that risk; and (vi) such conduct, when viewed in total, is conscious shocking. Id.
In the context of a state's social work involving an abused child, the elements of a danger creation claim may be satisfied by showing that the state placed or left a child in the custody of an abuser based on a recommendation or other action by a state social worker that reflects a reckless and conscious disregard of an obvious or known substantial risk of serious, immediate, and proximate harm. See Currier v. Doran, 242 F.3d at 919-22. "The danger creation theory . . . focuses on the affirmative actions of the state in placing the plaintiff in harm's way. Plaintiffs cannot rely on Defendants' failure to intervene once custody [is] given to [the parent] to state a danger creation claim if the Defendants' affirmative conduct in placing the child with [the parent] does not satisfy the Armijo danger creation requirements." Id. at 919.
In Currier v. Doran, The Tenth Circuit affirmed Judge Black's denial of summary judgment for certain defendants on the issue of danger creation. The Tenth Circuit held that the failure to investigate abuse claims raised factual issues on the danger creation claim and that the plaintiffs had alleged sufficient facts to establish a constitutional violation. The Tenth Circuit also found that the actions of two of the defendants were conscience shocking.
As to defendant Doran, the Tenth Circuit stated that Doran's conduct met the danger creation theory of liability spelled out in Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1262, (10th Cir. 1998), holding that Doran created the danger or increased the plaintiffs' vulnerability to the danger through his failure to investigate numerous bruises and allegations of abuse and his responsibility for the court order granting legal custody to the natural father. Currier v. Doran, 242 F.3d at 920. In discussing the plaintiffs' complaints that Doran failed to act on particular allegations of abuse, the Tenth Circuit repeatedly used the phrase "failure to investigate allegations of abuse."See id. at 920 n. 7. The Tenth Circuit also cited Ford v. Johnson, 899 F. Supp. 227, 233 (E.D. Pa. 1995), which held that a constitutional claim was stated against defendant social workers who failed to investigate and report to juvenile court circumstances concerning a father given custody of a child he subsequently beat to death. The Tenth Circuit held that, "[b]y failing to investigate the allegations of child abuse and by recommending that the father assume legal custody, Doran's conduct put [the children] at obvious risk of serious, immediate, and proximate harm, a harm that Doran recklessly and consciously disregarded." 242 F.3d at 920.
A somewhat closer question for the Tenth Circuit in Currier v. Doran was whether Doran's conduct was "conscience shocking."See id. The Tenth Circuit "recognized three basic principles guiding the evaluation of substantive due process claims that are particularly relevant to th[e] determination [of whether a defendant's actions are conscious shocking]: (1) the general need for restraint; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policy decisions impacting public safety." Id. The Tenth Circuit stated that the plaintiff's allegations against Doran, if true, were at least as conscience-shocking as the facts in Armijo v. Wagon Mound Pub. Schs., where, contrary to school policy, school officials sent home a distraught and potentially suicidal student knowing that firearms were present at his house and that his parents were not home. 159 F.3d at 1256-7,1262. The court in Armijo v. Wagon Mound Pub. Schs. determined that the school officials' decision could be "construed as conscience-shocking, depending on context as determined after a full trial." Armijo v. Wagon Mound Pub. Schs., 159 F.3d at 1264. Based on Armijo v. Wagon Mound Pub. Schs., the Tenth Circuit in Currier v. Doran cautioned: "It is important to remember that Doran's conduct must be `viewed in total,' and thus the cumulative impression of Doran's conduct should be considered." Currier v. Doran, 242 F.3d at 920 (quoting Armijo v. Wagon-Mound Pub. Sch., 159 F.3d at 1264). The Tenth Circuit then pointed to three issues which, depending on their context, could make Doran's conduct rise to the level of conscience shocking: (i) the father's financial irresponsibility; (ii) numerous bruises; and (iii) numerous allegations of abuse.Currier v. Doran, 242 F.3d at 920. Thus, the Tenth Circuit held that the plaintiffs had alleged sufficient facts to support a danger creation claim against Doran.
The Defendants in this case attempt to distinguish Currier v. Doran by asserting that, while Doran did not investigate at all, the Defendants here actually did something. Despite the Tenth Circuit's use of the phrase "failure to investigate" in its analysis section, in its factual section, the court indicated several instances where Doran took some limited action. For example, on one occasion, Doran noticed a small bruise on the child's cheek, but, after receiving an explanation from the father's girlfriend, he did not investigate further. See 242 F.3d at 909. On another occasion, Doran interviewed the father and the father's girlfriend about the bruises. See id. at 910. Doran also prepared an affidavit for a meeting with his supervisor in which he indicated that the children would be subject to further abuse if permitted to stay with the father. See id. However, he failed "to strongly advocate" against the return of the children to their father.See id. He later referred another allegation of abuse to another social worker who investigated some bruises and determined that they weren't the result of abuse. See id.
Defendant Medina in Currier v. Doran was involved in the initial removal of the children from their mother's custody and the delivery of the children into CYFD's physical custody. The Tenth Circuit held that a danger creation claim was not satisfied on this involvement alone. See id. at 921. However, Medina also instructed the children's mother to stop making allegations of abuse against the father. Based on this action by Medina, the Tenth Circuit held that "[b]y discouraging [the mother] from reporting additional indications of abuse, Medina increased the children's vulnerability to [the father's] abuse," and thus, the plaintiffs had properly alleged a danger creation claim against Medina. Id. at 922.
Taking the evidence in the light most favorable to the Plaintiff, the Court believes that the Plaintiff has set forth sufficient evidence to get to the jury on the danger creation claim. The Defendants specifically challenge the third, fourth, fifth, and sixth elements. The third element of a danger creation claim requires a showing that the defendants' conduct put the plaintiff at substantial risk of serious, immediate and proximate harm. Given that the allegations inCurrier v. Doran were sufficient, the Court sees evidence in the record of a substantial risk of immediate and proximate harm. To the extent the Court is viewing the evidence in the light most favorable to the Plaintiff here, there is evidence in the record of some potential risk of harm. Such evidence could be construed as rising to the level required under this test.
The fourth element of a danger creation claim is the existence of obvious or known risks. There is evidence in the record that the risk was known. Moreover, the Plaintiff argues that the Defendants should have known — that the risk was obvious. Ginger Bowman, who conducted the investigation of the only abuse referral, concluded that the referral was unsubstantiated, but indicated that she might have done something different if she had known other facts. There is also evidence in the record that the Defendants should have been suspicious of other actual abuse or suspected abuse based on actual events. There is also evidence that the Defendants should have known Veronica Bogey was going to move in with Terry Bogey at some point and that an investigation of him was necessary. Thus, there is thus evidence in the record to support the fourth element.
The fifth element of a danger creation claim is that the Defendants acted in reckless or conscious disregard of a known risk. The Plaintiff has put forth evidence that the Defendants did not do enough in the face of a known or obvious risk. The Court recognizes evidence of this element.
The sixth and final element of a danger creation claim is that the Defendants' conduct is conscious shocking. The standard for determining this element is whether the Defendants' actions shock the conscience of the Court. "[T]o satisfy the `shock the conscience' standard, `the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscious shocking.'" Armijo v. Wagon Mound Pub. Schs., 159 F.3d at 1262 (citing Uhlrig v. Harder, 64 F.3d.567, 574 (10th Cir. 1995). The Court perceives evidence in the record with regard to the danger creation claims that constitutes conscious shocking evidence. Therefore, the Court will deny the Defendants' motion under rule 50 for judgment as a matter of law on the danger creation claims.
C. Special Relationship
The second exception — and the second basis on which the Plaintiff bases his claims — is the "special relationship" doctrine, which applies when children are in state legal custody and are placed without justification based on financial constraints or professional judgment in a foster home or institution known to be dangerous. See Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883, 893-94 (10th Cir. 1992). The special relationship doctrine is inapplicable when the child is not in state custody at the time of injury. See Currier v. Doran, 23 F. Supp. 2d 1277, 1280 (D.N.M. 1998) (finding special relationship exception inapplicable because child was not in state custody at the time he was killed), rev'd on other grounds, 242 F.3d 905, 919 (10th Cir. 2001). The "shocks the conscience" standard discussed above with regard to the danger creation theory also applies to the special relationship doctrine. See Radecki v. Barela, 146 F.3d 1227, 1230 (10th Cir. 1998).
The Plaintiff concedes that no special relationship existed in this case after the adoption on July 31, 2000. The Defendants, on the other hand, concede that a special relationship did exist before the adoption. The Plaintiff contends that all acts and omissions of which he complains and on which he bases alleged liability occurred during the time of the special relationship. The Court believes there is evidence in the record of the acts and omissions that the Plaintiff has pointed to and from which a reasonable jury might be able to find liability based on the existence of a special relationship existing between the Defendants and Grace. The Court will, therefore, deny the motion for judgment as a matter of law as to the special relationship claim.
II. DEFENDANT SONIA PEREZ SANCHEZ
The Plaintiff alleges that the following acts or omissions support liability against Sonia Perez Sanchez:
1. Sanchez did not do enough to ensure that the investigation of Mealand's referral regarding possible evidence of abuse.
2. Sanchez did not conduct enough home visits.
3. Sanchez did not talk to enough collateral sources such as Grace's doctor, nurses, day care workers, or other similar individuals to determine whether Veronica Bogey might be abusing Grace.
4. Sanchez did not investigate Terry Bogey at all, even though Veronica Bogey had discussed the possibility of moving to Wisconsin where her father was located.
5. Sanchez biased the investigation of Mealand's referral by letting Veronica Bogey know ahead of time that CYFD representatives would be coming to her house to investigate allegations of child abuse.
There is evidence in the record as to each of these allegations, and the allegations constitute a combination of acts and omissions that the Court believes a reasonable jury could find support liability against Sanchez. Therefore, the Court will deny the motion for judgment as a matter of law as to Sonia Perez Sanchez.
III. DEFENDANT ANNE HOLMES
The Plaintiff alleges the following acts or omissions support liability against Anne Holmes:
1. Holmes did not sufficiently investigate Charlene Blevin's concerns that (i) Veronica Bogey was a man masquerading as a woman and (ii) that Veronica Bogey, as a single, working mother, could not adequately care for a child with Grace's needs.
2. Holmes did not sufficiently respond to Nurse Janie Mealand's call regarding possible evidence of abuse and should have done more to ensure the complete investigation of Mealand's referral.
At the outset, it is important to note that the Plaintiff complains that the Defendants personally created the danger that the children faced. Thus, Holmes cannot escape liability in the same way that defendant Sentell did in the Currier v. Doran case. In Sutton v. Utah State Sch. for the Deaf Blind, 173 F.3d 1226, 1237 (10th Cir. 1999), the Tenth Circuit indicated that officials who created the danger might have a duty to rescue. The plaintiffs in Currier v. Doran did not argue that Sentell was personally involved in creating the danger the children faced. 242 F.3d at 920. Instead, the plaintiffs argued that Sentell was constitutionally required to rescue the children because she was aware that her fellow co-workers had created the danger. Sentell had a limited involvement in the matter and her involvement began after the father had been awarded both physical and legal custody. See Currier v. Doran 242 F.3d at 920. The Tenth Circuit indicated that Sentell's case was a closer case than the defendant in Sutton v. Utah State Sch. for the Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999), but found she had no duty to rescue the children.
The Court believes the Plaintiff has introduced evidence that Holmes' involvement in the adoption and other acts and omissions in this case were more extensive than Sentell's were in Currier v. Doran. Holmes' level of involvement and her acts and omissions are closer to those of defendant Doran in Currier v. Doran, which supported a denial of summary judgment. In other words, the Court believes a reasonable jury could find liability against Holmes based on the evidence in the record.
IT IS ORDERED that the Defendants' motion for judgment as a matter of law is denied.