June 15, 2019

Tenth Circuit: In Death of a Child, Summary Judgment in Favor of Social Worker on Qualified Immunity Grounds Inappropriate

The Tenth Circuit published its opinion in The Estate of B.I.C. v. Gillen on Wednesday, December 19, 2012.

This case stems from the death of a minor child, 23-month-old Brooklyn Coons (“B.I.C.”) at the hands of her father’s girlfriend. Plaintiffs-Appellants, Larry and Mary Crosetto and the Estate of B.I.C., filed an action alleging that a social worker, Defendant-Appellee, Linda Gillen, created the danger that resulted in the death of their granddaughter and denied them their rights to familial association. The district court granted summary judgment in favor of Ms. Gillen on qualified immunity grounds. Plaintiffs appeal.

On appeal, Plaintiffs argue that qualified immunity was unwarranted on their state danger-creation and familial association claims.

Qualified Immunity

Qualified immunity protects government employees from suit, except those who are plainly incompetent or those who knowingly violate the law. A plaintiff may only overcome a government official’s immunity by showing first that the official violated the plaintiff’s federal statutory or constitutional rights, and that the rights in question were clearly established at the time of their alleged violation.

The Due Process clause of the Fourteenth Amendment protects an individual’s life, liberty, and property against government actions. Generally, it does not require the state to protect life, liberty, and property of its citizens against invasion by private actors. There are two exceptions to this rule.  First, state officials may be liable for the acts of private parties when the state has assumed a special relationship with and control over an individual. Second, state officials can be liable for the acts of private parties where those officials created the very danger that caused the harm. The Crosettos argue that the danger-creation exception applies here.

A showing of affirmative conduct and private violence are preconditions necessary to invoking the state-created danger theory. Here it is undisputed that B.I.C.’s death was caused by an act of violence by a private party. There is, however, a question as to whether there is sufficiently affirmative conduct on the part of the state in placing B.I.C. in danger. Mere negligence or inaction is not enough. A social worker who fails to act may be negligent but does not forfeit immunity when there is no affirmative action.

The Tenth Circuit held there remained an issue here as to whether Ms. Gillen purposefully, maliciously, and intentionally failed to act—therefore placing B.I.C. in harm’s way. The evidence viewed in the light most favorable to the plaintiffs indicates a deliberate decision to ignore. There were numerous, specific indications of abuse and a deliberate decision not to remove B.I.C. or respond in any way to the extensive evidence of abuse. A rational trier of fact could find that Ms. Gillen’s conduct went well beyond merely allowing unreasonable risks to persist, but was deliberate, affirmative conduct in light of her specific knowledge of real danger to B.I.C. These facts, taken in the light most favorable to the Crosettos, could constitute violations of due process rights at trial.

Familial Association

The Crosettos also claimed that their due process rights to familial association were violated by Ms. Gillen’s actions. In order to show deprivation of the right to familial association, a plaintiff must show that the state actor intended to deprive him or her of a specially protected familial relationship. Plaintiff must show that by specified acts and conduct, defendant intentionally, or with conscious disregard for plaintiff’s rights, deprived them of associational rights, with the qualification immediately following that specifically, Defendant knew, or should have known that by her actions, death was likely to occur, and the plaintiffs would be denied the companionship and association of the decedent. Because it was undisputed that Ms. Gillen had no specific intent to cause the death of B.I.C., the Crosettos’ familial association claims failed.

Accordingly, the Tenth Circuit REVERSED in part, holding that qualified immunity was not appropriate on the state danger-creation claim. The Tenth Circuit AFFIRMED summary judgment on the familial association claim.

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