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Loraine Campbell, Individually and As Personal Representative of the Estate of Justine Booth v. State of Washington Department of Social and Health Services

November 7, 2011

LORAINE CAMPBELL, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JUSTINE BOOTH, PLAINTIFF-APPELLANT,
v.
STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES, DEFENDANT, LASHONDA MARIE MITCHELL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY ACTING UNDER THE COLOR OF STATE LAW; MURINE LEE MCGENTRY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY ACTING UNDER THE COLOR OF STATE LAW; SONJA PATE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Senior District Judge, Presiding D.C. No. and 2:08-cv-00983-JCC

The opinion of the court was delivered by: Bybee, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted November 5, 2010-Seattle, Washington

Before: Betty B. Fletcher and Jay S. Bybee, Circuit Judges, and Claudia Wilken, District Judge.*fn1

Opinion by Judge Bybee;

Dissent by Judge B. Fletcher

OPINION

Plaintiff Loraine Campbell appeals the district court's grant of summary judgment in favor of Defendants Sonja Pate, Lashonda Mitchell, and Murine McGenty,*fn2 employees of the State of Washington's State Operated Living Alternative ("SOLA") program. Defendants were responsible for the care of Campbell's 33-year-old developmentally delayed daughter, Justine Booth, at the time Justine was found unconscious in her bathtub. Justine died one week later. Campbell sued Defendants on behalf of herself and Justine's estate under 42 U.S.C. § 1983, alleging that Defendants deprived Justine of her Fourteenth Amendment substantive due process right to safe physical conditions while in involuntary state custody.*fn3

The district court concluded that Campbell did not present a genuine issue of material fact as to her § 1983 claim because she did not proffer evidence that the state owed Justine an affirmative duty of care. The district court also held that Defendants were protected by qualified immunity. We likewise hold that Defendants had no constitutionally required duty of care towards Justine because (1) there was no special relationship between Justine and the state and (2) there was no state-created danger, and we affirm.

I

The circumstances of Justine's life, disability, and SOLA placement are relevant to our analysis, as are the final events leading up to her tragic accident and subsequent death. Accordingly, we discuss these facts in detail below.

A

At the time of Justine's death, she was a 33-year-old woman with a diagnosed severe seizure disorder and significant cognitive disability. According to Justine's neurologist, she had an IQ of 59, ranking her below the first percentile of the population.

Justine was a ward of the court previous to her eighteenth birthday. Because of her parents' drug and legal problems, as a child Justine lived variously with her mother, her natural father, and her stepmother; in foster care; and in state institutions. In 1987, at the age of fourteen, Justine was admitted to a school run by Washington State's Department of Social and Health Services ("DSHS"). Around Justine's eighteenth birthday, Loraine Campbell, Justine's birth mother, filed for and received legal guardianship over "the Person and Estate" of Justine, as ordered by the King County Superior Court.

Justine was enrolled in SOLA in 1990. Campbell and Justine requested the placement, which DSHS approved. Campbell testified that she and Justine chose SOLA so Justine could live a "somewhat independent, normal life" and "do as much as she could." Upon Justine's enrollment in SOLA, Campbell received a letter from DSHS thanking Justine for "deciding to participate in our program." The letter informed Campbell and Justine that Justine's "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 our Field Services Office (FSO) Case Manager."

In 1995, the King County Superior Court ordered Camp-bell's "guardianship [to be] terminated as to [Justine's] estate" because Campbell had failed to "properly complete the estate." Campbell claims that after December 1995, she stopped receiving Justine's SOLA-related paperwork from Justine's SOLA caregivers. Campbell further claims that after her estate guardianship was terminated, she no longer had the authority to terminate Justine's participation in SOLA. The record indicates that Campbell authorized SOLA to "seek and obtain medical treatment" for Justine, as well as to manage Justine's finances.

While in the SOLA program, Justine lived in a home she rented with two other developmentally disabled roommates, also in the SOLA program. Her placement in that particular home was chosen by the SOLA program, and Campbell alleges that it was done against Campbell's wishes. Justine received round-the-clock care from SOLA employees, who directed, monitored, and supervised her eating, dressing, bathing, and other activities. Campbell alleges that the SOLA caregivers put locks on the door to Justine's home to prevent Justine from wandering off without their permission. Despite this need for supervision, Justine was able to travel to Elder Care on a paratransit bus by herself, as she did on the day of her accident.

Every year, employees at SOLA conducted a needs assessment for Justine, resulting in the annual creation of a Personal Support Plan ("PSP"). These PSPs were typically drafted after a meeting attended by Justine, Campbell, and a variety of SOLA staff, consultants, and others. The PSPs were written in the first person and were meant to direct SOLA caregivers as they worked with Justine. Justine's PSPs included cautions related to Justine's use of the bathroom and bathtub in 1997, 2000, 2001, 2002, and 2003. These included warnings that Justine needed to be reminded to use her helmet while she bathed and that she needed to be monitored closely, including via baby monitor, while she was in the bathtub, e.g., "Staff needs to supervise Justine at all times when she is in the bathtub and encourage her to use a bath pillow." The 2006 PSP did not include a bath-specific protocol but did include a general instruction that Justine's caregivers should check regularly on Justine's safety, i.e. "Please do not!!; Leave me alone too long without checking on me."

Defendant Pate was the SOLA manager responsible for drafting Justine's PSPs from 2002 through 2006. Defendants Mitchell and McGenty began working regularly as Justine's daily caregivers in 2001 and 2002, respectively.

B

On Tuesday, October 10, 2006, the day of Justine's accident, Defendants Mitchell and McGenty began their shifts at 3 p.m.*fn4 At that time, Justine was not at home but was at Elder Care, as was her routine on Tuesday and Thursday afternoons. Justine returned home around 7:20-7:25 p.m. via the paratransit bus, which dropped her off directly at her residence. Upon returning home, she went to her room, where she played with string, as she liked to do.

Around 8 p.m., Mitchell heard McGenty tell Justine to take a bath. At this time, or shortly after, Mitchell was in the kitchen preparing to give 8 p.m. medications to Justine's roommate; while there, she could hear Justine running the bath water. After Mitchell heard the bath water stop running, she joined McGenty in the livingroom. McGenty went into the bathroom and told Justine she needed to start bathing; McGenty then returned to the livingroom. Sometime later, McGenty needed to use the bathroom, so she went back into the bathroom while Justine was "lounging" in the bathtub but was still not bathing.

When McGenty returned to the livingroom, she told Mitchell that Justine had not yet begun to bathe. Mitchell testified that when she went into the bathroom, she found Justine relaxing in the bathtub, as was Justine's practice. Justine was not wearing a helmet or using a bath pillow, nor was there a monitor in the bathroom, all of which had been required at one time or another under previous PSPs, but which were not required under the 2006 PSP. Mitchell told Justine to begin washing herself. Justine responded by picking up her soap and towel and starting to wash herself. Mitchell returned to the livingroom. At some point after this, Mitchell went ...


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