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Davis v. Washington State Department of Social and Health Services

United States District Court, E.D. Washington

January 16, 2018

BARBARA DAVIS, as Personal Representative of the Estate of G.B., deceased, Plaintiff,
v.
WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES; JENNIFER STRUS, individually and in her official capacity acting under the color of state law; HEIDI KAAS, individually and in her official capacity acting under the color of state law; MELISSA KEHMEIER, individually and in her official capacity acting under the color of state law; JAMES DESMOND, individually and in his official capacity acting under the color of state law; CASSIE ANDERSON, individually and in her official capacity acting under the color of state law; BRINA CARRIGAN, individually and in her official capacity acting under the color of state law; MAGGIE STEWART, individually and in her official capacity acting under the color of state law; LORI BLAKE, individually and in her official capacity acting under the color of state law; SHANNON SULLIVAN, individually and in her official capacity acting under the color of state law; SUSAN STEINER, individually and in her official capacity acting under the color of state law; CAMERON NORTON, individually and in his official capacity acting under the color of state law; SARAH OASE, individually and in her official capacity acting under the color of state law; RANA PULLOM, individually and in her official capacity acting under the color of state law; DONALD WILLIAMS, individually and in his official capacity under the color of state law; CHRIS MEJIA, individually and in his official capacity acting under the color of state law; RIVERSIDE SCHOOL DISTRICT NO. 416, a Municipal corporation duly organized and existing under the laws of Washington State; JUANITA MURRAY, individually and in her official capacity acting under the color of state law; ROBERTA KRAMER, individually and in her official capacity acting under the color of state law; SARAH RAMSDEN, individually and in her official capacity acting under the color of state law; CAROLINE RAYMOND, individually and in her official capacity acting under the color of state law; CHERI MCQUESTEN, individually and in her official capacity acting under the color of state law; SARAH RAMSEY, individually and in her official capacity acting under the color of state law; TAMI BOONE, individually and in her official capacity acting under the color of state law; MELISSA REED, individually and in her official capacity acting under the color of state law; ANN STOPAR, individually and in her official capacity acting under the color of state law; KRISTINA GRIFFITH, individually and in her official capacity acting under the color of state law; WENDY SUPANCHICK, individually and in her official capacity acting under the color of state law; SHERRY DORNQUAST, individually and in her official capacity acting under the color of state law; GARY VANDERHOLM, individually and in his official capacity acting under the color of state law; ROGER PRATT, individually and in his official capacity acting under the color of state law; CHRIS NIEUWENHUIS, individually and in his official capacity acting under the color of state law and JOHN DOES 1-50, individually and in their official capacities acting under the color of state law, Defendants.

          ORDER RE RIVERSIDE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In August 2014, after five-year-old G.B.'s father was murdered and his mother died of an apparent drug overdose, the Washington Department of Social and Health Services (DSHS) placed G.B. in the care of his aunt, Cynthia Khaleel. G.B. attended Chatteroy Elementary School for the 2014-15 school year. Over the course of that year, G.B exhibited numerous signs of abuse and neglect, including bruising and scratches on his face and head, burns, aggressive and aberrant behavior, and excessive absence. On April 16, 2015, G.B. told two teachers “my mom punched me in the head.” School staff did not immediately report this incident to DSHS or law enforcement. That night, G.B. was beaten to death.

         Plaintiff Barbara Davis (Plaintiff), G.B.'s grandmother and representative of his estate, filed this action against DSHS and the Riverside School District, as well as numerous employees of those organizations, alleging a number of state and federal claims. This order addresses the Riverside Defendants'[1] motions for summary judgment on Plaintiff's 42 U.S.C. § 1983 claims against (1) Riverside School District Directors Chris Nieuwenhuis, Roger Pratt, and Gary Vanderholm (the Directors), [2] ECF No. 105; (2) Superintendent Roberta Kramer and Chatteroy Elementary School Principal Juanita Murray, ECF No. 151; and (3) the Riverside School District (the District), ECF No. 157.[3]

         42 U.S.C. § 1983 creates a cause of action against those who, acting pursuant to state government authority, violate federal law. To establish § 1983 liability, a plaintiff must show (1) deprivation of a right secured by the Constitution and laws of the United States and (2) that the deprivation was committed by a person acting under color of state law. Chudacoff v. Univ. Med. Cntr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011). Plaintiff's underlying theory of § 1983 liability against each of the defendants at issue in these motions relies on application of the state-created-danger exception to the general rule that government actors have no duty to protect individuals from harm caused by a third party. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 196-97 (1989). The state-created-danger exception applies only where there is (1) “‘affirmative conduct on the part of the state in placing the plaintiff in danger, '” and (2) “the state acts with ‘deliberate indifference' to a ‘known or obvious danger.'” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) (quoting Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000); L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).

         The Court previously concluded Plaintiff's allegations that child-abuse and neglect policies and practices in place at Chatteroy Elementary School permitted and encouraged staff to report suspected abuse only to specified school officials and to delay reporting to DSHS or law enforcement, accepted as true, demonstrate affirmative conduct placing G.B. in danger and deliberate indifference to a known or obvious danger. ECF No. 99 at 10-13. Accordingly, the principal question underlying each of the motions now before the Court is whether, viewing the facts in the record in the light most favorable to Plaintiff, a reasonable trier of fact could conclude that child-abuse reporting policy or practice in place at Chatteroy Elementary School affirmatively placed G.B. in danger and constituted deliberate indifference to a known or obvious danger. The answer to that question is yes. On the record before the Court, material factual questions 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.

         Because the Directors' only role was adopting the district-wide child abuse, neglect, and exploitation policies and practices, which required immediate reporting of suspected abuse, and they had no direct supervisory obligations relating to the implementation of those policies and practices by district staff at individual schools, Plaintiff's § 1983 claims against the Directors must be dismissed. Murray and Kramer, by contrast were directly involved with implementing the abuse-reporting practices at Chatteroy Elementary School and they are not immune from liability.

         Issues of fact therefore preclude summary judgment on the § 1983 claims against Murray and Kramer. Additionally, because the alleged harm here was caused by District policy, practice, or custom, or by final policy makers, the District is a proper § 1983 defendant.

         II. BACKGROUND

         A. G.B.'s family history and time at Chattaroy Elementary School

         G.B. was born in Port Angeles, Washington in October 2009. ECF No. 1 at 12. G.B.'s father was murdered in his home in June 2012, and his mother died of an apparently drug-related heart attack two years later, in July 2014. Id. at 12-13. Following the death of his mother, G.B. and his siblings became dependents of the State of Washington. Id. at 13. In August, 2014, G.B. and his younger brother were placed in the care of their paternal aunt, Cynthia Khaleel near Spokane, Washington. Id. at 13.

         In fall 2014 G.B. began attending Chatteroy Elementary School in the Riverside School District, where he was enrolled in the Early Childhood and Education Assistance (ECEAP) pre-school program. Id. at 13; ECF No. 171-3 at 3- 4. Because of developmental disabilities, G.B. also participated in an Individualized Educational Program (IEP). ECF No. 1 at 13; ECF No. 171-3 at 7. G.B. had serious difficulties with aggression, self-control, and communication, ECF No. 171-3 at 14- 15; ECF No. 171-12, although staff at Chatteroy Elementary indicated that he made progress on these issues during his time there. ECF No. 171-3 at 14-15, ECF No. 171-4 at 6-7; ECF No. 171-12. He also made continual academic progress. ECF No. 171-12 at 5-6, 15-16. G.B. reportedly enjoyed coming to school. ECF No. 171-4 at 16.

         Numerous school staff had contact with G.B. through ECEAP, IEP, and other school services. Sheri Dornquast was the lead teacher in the G.B's ECEAP classroom during that school year, and Chatteroy Principal Juanita Murray was the ECEAP director. ECF No. 171-3 at 3-4. Ann Stopar and Carolyn Raymond were assistant lead teachers in G.B.'s ECEAP classroom. ECF No. 171-3 at 7; ECF No. 171-6. Christina Griffith was an IEP teacher and Melissa Reed was an IEP aid at Chatteroy who worked with G.B. ECF No. 171-3 at 7. Sara Ramsden was a speech pathologist who worked with children in ECEAP, including G.B. ECF No. 171-4 at 4. Carolyn Raymond was a psychologist who worked with ECEAP students, including G.B. ECF No. 171-3 at 8. Wendy Supanchick was the school nurse, and examined G.B. on at least one occasion. Id. at 8. Tami Boon and Cheri McQuesten were family service coordinators. ECF No. 171-5 at 5; 171-7 at 5. A number of other specialists also worked G.B. during the course of the school year. ECF No. 171-3 at 8.

         During the 2014-15 school year, staff and teachers at Chatteroy Elementary School observed numerous signs that G.B. may have been suffering abuse and neglect:

. In early October 2014, Sheri Dornquast noticed bruising on G.B.'s forehead. ECF No. 171-3 at 20-21, 27. She took a photograph and called Murray into the ECEAP classroom to look at the bruising. ECF No. 171-1 at 18-20; ECF No. 171-3 at 20. Dornquast discussed G.B.'s injuries with several other staff members, some of whom also saw G.B. and observed the bruises. ECF No. 171-3 at 27. Murray decided not to contact DSHS and denies suspecting that the bruises were signs of abuse. ECF No. 171-1 at 19.
. Later in October, at a pumpkin-patch field trip, Dornquast noticed G.B. had a bandage covering his entire forehead. ECF No. 171-3 at 20, 27. She asked Khaleel about the bandage, and Khaleel stated that G.B. had gotten a very bad sunburn. Id. at 20. Later, when Dornquast saw G.B. without the bandage, she observed a pink mark and peeling skin consistent with a burn. Id. at 28. Ramsden, Boon, Stopar, and McQuesten also remembered seeing a burn or red inflamed area on G.B.'s forehead around that time. ECF No. 171-4 at 13; ECF No. 171-5 at 12; ECF No. 171-6 at 6; ECF No. 171-7 at 12, 18. Dornquast told them that Khaleel had told her it was a sunburn. ECF No. 171-4 at 13; ECF No. 171-6 at 6. A photograph taken shortly after that incident showed G.B. with scabs on his forehead. ECF No. 171-3 at 29; ECF No. 171-13.
. On November 20, 2014, Dornquast noticed bruising on G.B.'s ears and arm. ECF No. 171-3 at 21, 32. Dornquast again contacted Murray about G.B.'s injuries. ECF No. 171-1 at 21; ECF No. 171-3 at 22. Dornquast asked Murray if she should report the incident, and Murray told her she would take care of it. ECF No. 171-3 at 22, 32. Murray asked the school nurse, Wendy Supanchick, examine G.B. ECF No. 171-1 at 21. No. report was made to DSHS concerning this incident. Id. at 22.
. Dornquast indicated that she had observed G.B. hitting his head against things on several occassions. ECF No. 171-3 at 27.
. At a Christmas concert on December 10, 2014, several staff observed bruising and scratches on G.B.'s face. ECF No. 171-4 at 12, 17. Ramsend stated that she believed these injuries were signs of abuse. G.B. attended school for only four days in December 2014. ECF No. 171-3 at 17-18. at 12. At this same concert, Ramsend observed that G.B. and a sibling were left alone in a stroller outside the school gymnasium. ECF No. 171-4 at 25. This concerned her because both children were “high-needs.” Id. at 25.
. G.B. had significant absences in December 2014 and January 2015, ECF No. 171-4 at 20, and was absent for all but three school days in March 2015. ECF No. 171-1 at 18.

         Only one of these incidents was reported to DSHS. After Ramsend shared her concerns about the injuries G.B. had at the Christmas concert with Caroline Raymond and then Tiffany Zuck, on December 12, 2014, Zuck submitted a report to DSHS indicating that she believed G.B. and his siblings were being abused at home. ECF No. 135-9 at 4. She reported that G.B. had multiple injuries consistent with abuse and that Khaleel did not adequately supervise him. Id. at 4. Following this incident, Khaleel came into the school and confronted Zuck, verbally attacking her, yelling profanities, and threatening her. ECF No. 135-15 at 5; ECF No. 171-4 at 9-10.

         Riverside Superintendent Kramer had a conversation with Khaleel in which she told Khaleel that she could not discuss CPS reports and asked Khaleel to leave. ECF No. 171-2 at 9. Kramer subsequently instructed Murray to tell Zuck that her interactions were upsetting and disruptive to the family. Id. at 10. Consistent with Khaleel's request not to have further involvement with Zuck, Zuck was instructed not to deal with Khaleel in the future, although Kramer does not recall specifically telling Zuck that she was prohibited from having any contact with the Khaleel family. Id. at 10. Zuck asserts that the District and administration told her not to have contact with G.B. or his siblings. ECF No. 135-15 at 5. Zuck also asserts that Murray declined to report complaints about abuse and neglect in the Khaleel home from G.B.'s grandmother, Barbara Davis, because Murray suspected Davis was lying. Id. at 5. Murray denies these assertions. ECF No. 171-1 at 28-29.

         B. G.B.'s death

         On the morning of April 16, 2015, G.B. told Melissa Reed that “Mom punched me in the head, ”[4] and he gesticulated to indicate a punch to the head. ECF No. 171-3 at 23. Dornquast overheard this statement and asked Reed to confirm what he said, which she did. Id. Dornquast asked G.B. what he had said, and he repeated “punched me in the head.” Id. Dornquast denies seeing any evidence of injury or that G.B. reported he was in any pain. Id. Dornquast did not believe G.B. that Khaleel “punched” him, but thought she might have “popped, you know, flicked him [or] something.” Id. This incident was not immediately reported to DSHS or law enforcement. Id. Murray was not working on that day. ECF No. 171-1 at 24.

         Dornquast states that she would have reported the incident to Murray if she had not been out of town. ECF No. 171-3 at 23.

         On the morning of April 17, 2015, emergency medical providers arrived at the Khaleel residence and discovered G.B. in an unresponsive state. ECF No. 1 at 13. He was taken to Sacred Heart Medical Center, where medical staff discovered multiple skull fractures and traumatic injuries to his brain. Id. He died from these injuries the following day. Id. at 14. The Spokane County Medical examiner determined that G.B.'s cause of death was blunt force head injury, and ruled the death a homicide. Id. G.B. also sustained multiple other traumas, including an abdominal injury that was the result of a forceful blow. Id. Khaleel was arrested in July 2015, and charged with second-degree murder. Id.

         C. The Riverside School District's Board of Directors' policymaking authority and process

         The School Board of Directors is the final policymaking authority for the District. ECF No. 149 at 6-7. Adopted policies are “directive[s] to the superintendent to work with her administrators to come up with the procedure.” Id. The Directors have authority to hire and terminate the superintendent and have sole oversight authority over the superintendent. Id. at 7. But the Directors do not engage in administrative supervision of district operations or policy implementation. ECF No. 143 at 9.

         The Washington State School Directors Association (WSSDA) provides policy services to member districts. ECF No. 149 at 4-5. These services include reviewing legislative enactments and Washington Administrative Code (WAC) updates and providing notifications and guidance to school districts on policy and procedure implications of changes in the law. Id. The WSSDA also provides model policies and procedures to all member districts. Id. at 4. Nearly all Washington School Districts subscribe to WSSDA's services, including the Riverside School District. Id. at 5-6. The Riverside School District's practice is to promptly adopt WSSDA model policies without change. Id. at 6.

         D. District-wide child abuse, neglect, and exploitation policy

         The District adopted the WSSDA's model child abuse, neglect and exploitation policy and procedures without change as Policy No. 3421 and Procedure No. 3421P in December 2013. ECF No. 109 at 2; ECF No. 149 at 6. These policies were in effect during the 2014-15 school year. ECF No. 149 at 6.

         Policy No. 3421 provides:

Child abuse, neglect and exploitation are violations of children's human rights and an obstacle to their educational development. The board directs that staff will be alert for any evidence of such abuse, neglect or exploitation. For purposes of this policy, “child abuse, neglect or exploitation” will mean:
A. Inflicting physical injury on a child by other than accidental means, causing death, disfigurement, skin bruising, impairment of physical or emotional health, or loss or impairment of any bodily function;
B. Creating a substantial risk of physical harm to a child's bodily functioning;
C. Committing or allowing to be committed any sexual offense against a child as defined in the criminal code, or intentionally touching, either directly or through the clothing, the genitals, anus or breasts of a child for other than hygiene, child care or health care purposes;
D. Committing acts which are cruel or inhumane regardless of observable injury. Such acts may include, but are not limited to, instances of extreme discipline demonstrating a disregard of a child's pain or mental suffering;
E. Assaulting or criminally mistreating a child as defined by the criminal code:
F. Failing to provide food, shelter, clothing, supervision or health care necessary to a child's health or safety;
G. Engaging in actions or omissions resulting in injury to, or creating a substantial risk to the physical or mental health or development of a child; or
H. Failing to take reasonable steps to prevent the occurrence of the preceding actions.
Child abuse can include abuse by another minor and so may be included in incidents of student misconduct.
When feasible, the district will provide community education programs for prospective parents, foster parents and adoptive parents on parenting skills and on the problems of child abuse and methods to avoid child abuse situations. The district will also encourage staff to participate in in-service programs that deal with the issues surrounding child abuse.
The superintendent will develop reporting procedures, including sample indicators of abuse and neglect, and will disseminate the procedures to all staff. The purpose is to identify and report as soon as possible to the proper authorities all evidence of child abuse or neglect. Staff will receive training regarding reporting obligations during their initial orientation and every three years after initial employment.
Classified and certified staff are legally responsible for reporting all suspected cases of child abuse and neglect. A certified or classified school employee who has knowledge or reasonable cause to believe that a student has been a victim of physical abuse or sexual misconduct by another school employee will report such abuse or misconduct to the appropriate school administrator. The administrator will report to the proper law enforcement agency if he or she has reasonable cause to believe that the misconduct or abuse has occurred as required under RCW 26.44.030. Under state law staff are free from liability for reporting instances of abuse or neglect and professional staff are criminally liable for failure to do so.
Staff need not verify that a child has in fact been abused or neglected. Any conditions or information that may reasonably be related to abuse or neglect should be reported. Legal authorities have the responsibility for investigating each chase and taking such action as is appropriate under the circumstances.

ECF No. 109-1.

         Procedure 3421P provides:

Each school principal will develop and implement an instructional program that will teach students:
A. How to recognize the factors that may cause people to abuse others;
B. How one may protect oneself from incurring abuse; and
C. What resources are available to assist an individual who does or may encounter ...

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