Patel v. Kent Sch. Dist.

• Decision Date: 11 July 2011
• Docket Number: No. 10–35430.,10–35430.
• Citation: 648 F.3d 965,11 Cal. Daily Op. Serv. 8701,271 Ed. Law Rep. 51,2011 Daily Journal D.A.R. 10422
• Parties: Madhuri PATEL, individually and on behalf of A.H., a developmentally disabled minor, Plaintiff–Appellant,v.KENT SCHOOL DISTRICT, a Washington municipal corporation; Francine Wilhelm; Kent Youth and Family Services, a Washington corporation and healthcare provider; Marnee Crawford, a healthcare provider; Dennis Ballinger, a healthcare provider, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

648 F.3d 965

271 Ed. Law Rep. 51

11 Cal. Daily Op. Serv. 8701

2011 Daily Journal D.A.R. 10,422

Madhuri PATEL, individually and on behalf of A.H., a developmentally disabled minor, Plaintiff–Appellant,

v.KENT SCHOOL DISTRICT, a Washington municipal corporation; Francine Wilhelm; Kent Youth and Family Services, a Washington corporation and healthcare provider; Marnee Crawford, a healthcare provider; Dennis Ballinger, a healthcare provider, Defendants–Appellees.

No. 10–35430.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2011.Filed July 11, 2011.

David P. Moody, Marty D. McLean, Shayne C. Stevenson (argued), Hagens Berman Sobol Shapiro LLP, Seattle, WA, Lafcadio H. Darling, Mikkelborg, Broz, Wells & Fryer PLLC, Seattle, WA, for plaintiff–appellant Patel.Mark S. Northcraft, Andrew T. Biggs, Sam B. Gorden (argued), Northcraft, Bigby & Biggs, PC, Seattle, WA, for defendant–appellee Wilhelm.Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. 2:09–cv–01223–JCC.Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

A.H., a developmentally disabled high-school student, had several sexual encounters with another developmentally disabled student in a school bathroom. Her mother alleges these encounters were the result of the school's failure to properly supervise A.H. We must decide whether the mother, individually and on behalf of A.H., has a cognizable Fourteenth Amendment due process claim against A.H.'s special-education teacher. The district court found she did not and granted summary judgment to the teacher. We agree and affirm.

The Fourteenth Amendment's Due Process Clause generally does not require government actors to protect individuals from third parties. As we hold below, neither of two exceptions to this general rule—the “special relationship” exception or the “state-created danger” exception—applies here. If A.H. and her mother have viable claims, those claims arise under state tort law, not the federal Constitution.

I

A

A.H. is a former student at Kentridge High School (KHS) in the Kent School District (Kent, Washington). Her mother is plaintiff-appellant Madhuri Patel. At age three, A.H. was diagnosed with developmental disabilities, including cognitive and intellectual delays. She is classified as mildly mentally retarded. A.H. spent her entire school career in special education within the Kent School District.

During the relevant time, A.H.'s disabilities affected her day-to-day life in various ways.¹ She was sometimes unable to complete basic tasks like holding her eating utensils correctly, blowing her nose, and zipping her clothes. Socially, A.H. had difficulty maintaining an appropriate physical distance from other people, refraining from talking about personal or embarrassing things, and conveying an age-appropriate understanding of etiquette. Patel alleged that her daughter frequently was “not aware of the potential danger of situations and [did] not necessarily use caution when encountering risky social situations.” Patel also worried that A.H. would often attempt to fit in with her peers by allowing herself to be easily manipulated or mistreated.

In April 2006, A.H.'s freshman year at KHS, Patel discovered a series of troubling emails between A.H. and three other students. Patel learned the students were coercing A.H. to steal money from Patel's purse. The emails also contained several graphic sexual references, particularly between A.H. and a boy named Eric. Patel gave the emails to school administrators, who concluded after investigation that Eric “was extorting money from [A.H.] but no sexual encounters had occurred at school.” The three students were suspended, and Eric never returned to KHS.

A month after Patel discovered the emails, KHS established an Individualized Education Plan (IEP) for A.H. A.H. was put in a self-contained classroom taught by defendant-appellee Francine Wilhelm, a special-education teacher. The school invoked a “no contact” order to prevent any further physical contact between A.H. and other students. School staff were required to escort A.H. to Wilhelm's classroom when she arrived in the morning, to any classes outside Wilhelm's classroom, and to the bus at the end of the day. At a staff meeting discussing the IEP, Wilhelm said she was “closely monitoring [A.H.] with regards to the young men in the class.” Wilhelm also said she was “[k]eeping an eye out for social concerns for [A.H.]” The IEP continued for the remainder of A.H.'s freshman year.

When A.H. began her sophomore year in fall 2006, KHS did not immediately resume the IEP. In an email to school administrators, Patel said she was “quite disappointed that [the] school would drop [the] ball on [the] previous arrangement of [A.H.]'s safety plan without including me or my permission.” She asked the school to resume the IEP.

In response to Patel's concerns, KHS held a meeting in September 2006. Wilhelm attended this meeting. A representative from Kent Youth and Family Services informed school officials that A.H.'s safety might be compromised if she was left “in any unsupervised times.” This included “lunch, passing times, and especially bathroom time.” After the meeting, the school agreed to resume the IEP and drafted a written agreement to that effect. According to Patel's declaration, had the school not done so, she would have removed her daughter from KHS.

The incidents leading directly to this lawsuit occurred the following semester, spring 2007. Although KHS's principal, Mike Albrecht, believed A.H. was under “complete adult supervision throughout the entire day,” that semester Wilhelm had been allowing A.H. (then age sixteen) to go on her own to a bathroom immediately adjacent to Wilhelm's classroom. At least five times during these unsupervised trips to the bathroom, A.H. had sex with a boy named Matt, another developmentally disabled student in Wilhelm's class. A counselor determined the sex might be “consensual” even though both students were developmentally disabled.

Despite her recognition that the IEP called for constant supervision, Wilhelm believed allowing A.H. to use the bathroom on her own as a sophomore was an important step in fostering her development:

Our primary charge is to prepare our [special-education] students for transition when they age out or graduate. [A.H.] will be a junior next year, and allowing her to use the restroom ... would be considered a step toward full transition .... [and] toward more independence.

According to Wilhelm, because the bathroom was next-door to her classroom, she could hear students inside talking and the toilets flushing. Wilhelm also claimed she would watch the clock to make sure A.H. did not take too long. Under these circumstances, Wilhelm considered it appropriate to allow A.H. to make quick trips to the bathroom without an escort.

Wilhelm did not know A.H. was having sex with Matt in the bathroom, but she was aware the two potentially had some type of relationship. On Matt's first day at KHS in March 2007, another teacher had emailed Wilhelm to tell her that A.H. was very interested in Matt, talking and laughing with him during class. Wilhelm asked the other teacher to “document the behavior and send it to [her].” Wilhelm also relayed this information to Patel via email. Then, about two months later, a vice principal told Wilhelm that she had seen the two students hugging in the hallway. Wilhelm spoke separately with each student about the incident.

A few days later, Wilhelm saw Matt leave her classroom just a few seconds after A.H. had gone to the bathroom. Wilhelm “raced out of the room,” called to A.H. from outside the bathroom, and escorted her back to class. Wilhelm said A.H. was “very angry” with Wilhelm for “interfering with her.” At the school's direction, Wilhelm again emailed Patel to explain the incident. A school official later thanked Wilhelm privately for her “vigilant” efforts.

As it turned out, this second email from Wilhelm to Patel may have been the catalyst in revealing A.H.'s sexual relationship with Matt. After receiving the email, Patel asked her daughter whether she was having a relationship with another student. A.H. admitted she and Matt had sex in the bathroom at least twice. Having heard this, Patel sent two emails to KHS, one to Wilhelm and one to Principal Albrecht. These emails disclosed A.H.'s sexual relationship with Matt and expressed Patel's anger about the situation. In the email to Wilhelm, Patel wrote, “FRANCINE I AM IN SHOCK, [A.H.] WILL NOT COME BACK TO SCHOOL TILL THESE ISSUES [ARE] WORKED OUT.” Likewise, in the email to Principal Albrecht, Patel wrote that the school had “not provided [the] supervision [A.H.] needs.”

Patel's email to Principal Albrecht also revealed for the first time that, contrary to the results of the school's previous investigation, A.H. and Eric had sex in a different school bathroom during her freshman year. Patel's email ambiguously claimed school officials knew this all along: “She had sex with [Eric] on the bathroom floor in [the] new [building] last year ... school knows about this as they did their investigation last year.”

But as the district court correctly noted, there was no evidence school officials knew that A.H. had sex at school her freshman year until Patel told them so in these spring 2007 emails. Rather, the school's prior investigation had concluded that Eric exploited A.H. for money, but no sex occurred on campus. In an internal email, a school official said, “[We] have met with [Patel] numerous times,” she “would not tell us what happened last year,” and “we had no knowledge of [A.H.] having sex.” Similarly, Wilhelm herself stated that she and other teachers knew A.H. had done something inappropriate in the bathrooms her freshman year, but they did not know exactly what...