L.W. v. Grubbs

• Decision Date: 03 September 1992
• Docket Number: No. 91-35449,91-35449
• Citation: 974 F.2d 119
• Parties: L.W. * , Plaintiff-Appellant, v. Dee GRUBBS, Thomas Nelson; Marlin Hutton; Richard Hill; James Nanson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 119

974 F.2d 119

61 USLW 2162

L.W. ^*, Plaintiff-Appellant, v. Dee GRUBBS, Thomas Nelson; Marlin Hutton; Richard Hill;

James Nanson, Defendants-Appellees.

No. 91-35449.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 1992.

Decided Sept. 3, 1992.

Thomas K. O'Shaughnessy, Kerry M. Smith, Black Helterline, Portland, Or., for plaintiff-appellant.

Rives Kistler, Asst. Atty. Gen., Salem, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: GOODWIN, Senior Circuit Judge, TANG and THOMPSON, Circuit Judges.

GOODWIN, Senior Circuit Judge:

L.W., a registered nurse employed by the State of Oregon at a medium security custodial institution for young male offenders, was raped and terrorized by an inmate. She sued under 42 U.S.C. § 1983 for damages, and appeals the district court's judgment of dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim against defendants Dee Grubbs, Thomas Nelson, Marlin Hutton, Richard Hill and James Nanson (collectively, "Defendants"). We reverse.

Defendants are state employees who served as L.W.'s supervisors at the custodial institution. According to L.W.'s complaint, which, for Rule 12 purposes, we must accept as true, Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), Defendants hired her to work in the institution's medical clinic and led her to believe that she would not be required to work alone with violent sex offenders. On August 15, 1989, however, Defendants selected inmate David Blehm to work with L.W. alone in the clinic. Blehm was a violent sex offender who had failed all treatment programs at the institution. According to his files, Blehm was considered very likely to commit a violent crime if placed alone with a female. Once alone with L.W. in the clinic, Blehm assaulted, battered, kidnapped and raped her. He also stole certain of her personal belongings.

In her complaint, L.W. alleged that the foregoing facts constituted conduct, under color of state law, which deprived her of her right to liberty without due process of law. L.W. sued on the theory that the government actors violated her constitutional rights by intentionally placing her in a position of known danger, that is, in unguarded proximity with an inmate whose record they knew included attacks upon women.

Defendants moved to dismiss the case for failure to state a claim, arguing that no due process right of L.W. was affected because she was not in custody. The district court granted the motion, agreeing that only a person in official custody could state a section 1983 claim when injured by a third party. In addition to its Rule 12 motion, Defendants had also moved the court for summary judgment on the ground that res judicata bars L.W.'s action because she accepted worker's compensation for the incident. The district court did not reach this motion. We will first consider the motion to dismiss.

I. Section 1983 and Third Party Harm

To state a section 1983 claim, the plaintiff must allege that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a constitutional right. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988) (as amended). In this case involving harm inflicted by a third party who was not a state actor, Defendants argue that L.W.'s claim is barred for three reasons. First, Defendants assert that, under DeShaney v. Winnebago County, Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the absence of a custodial relationship between L.W. and the Defendants bars her claim. Second, Defendants argue that, under Collins v. City of Harker Heights, --- U.S. ----, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), L.W.'s status as an employee of the Defendants bars her claim. Finally, Defendants argue that L.W.'s complaint is insufficient because it alleges "mere negligence."

A. Custody

Relying on DeShaney, the district court ruled that victim custody was a prerequisite to L.W.'s claim. In so ruling, the court misread DeShaney and overlooked circuit case law to the contrary.

As a general rule, members of the public have no constitutional right to sue state employees who fail to protect them against harm inflicted by third parties. DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004; Ketchum v. County of Alameda, 811 F.2d 1243, 1247 (9th Cir.1987).

This general rule is modified by two exceptions: (1) the "special relationship" exception; and (2) the "danger creation" exception. Although some cases have blended the two exceptions together, see, e.g., Ketchum, 811 F.2d at 1247, the distinction is important.

After the state has created a special relationship with a person, as in the case of custody or involuntary hospitalization, cases have imposed liability under a due process theory, premised on an abuse of that special relationship. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 314-325, 102 S.Ct. 2452, 2457-2463, 73 L.Ed.2d 28 (1982), (patient in custodial facility for the mentally retarded denied protection from violence); Estelle v. Gamble, 429 U.S. 97, 103-104, 97 S.Ct. 285, 290-291, 50 L.Ed.2d 251 (1976), (prisoner denied Eighth Amendment right to medical care).

The "danger creation" basis for a claim, by contrast, necessarily involves affirmative conduct on the part of the state in placing the plaintiff in danger. See Wood v. Ostrander, 879 F.2d 583, 588-90 (9th Cir.1989) (plaintiff not in custody but state officer created the danger), cert. denied, --- U.S. ----, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990); cf. DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006 (plaintiff not in custody and state officer did not create the danger). DeShaney did not rule that custody was required where the state affirmatively causes the harm. In addition to pointing out that Joshua DeShaney was not in state custody when injured, the Court noted that "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. (emphasis added). DeShaney thus suggests that had the state created the danger, Joshua might have recovered even though he was not in custody.

In the Ninth Circuit, the law concerning the "danger creation" exception begins with Wood, supra. In Wood (decided after DeShaney), we held that a woman who was raped by a third party could hold a police officer liable under section 1983. In that case, the officer had stopped the car in which the plaintiff was riding, arrested and removed the driver, impounded the car, and left the plaintiff stranded in a high crime area. She was subsequently raped. Even though the plaintiff had not been in state custody, we allowed her claim to go forward because the jury could have found that the defendant officer had affirmatively created the particular danger that exposed her to third party violence.

Similarly, in the present case, the actions of the Defendants created the danger to which L.W. fell victim by elevating Blehm to cart boy status. According to the complaint, the Defendants knowingly assigned Blehm to work with L.W. despite their knowledge that: (1) Blehm was not qualified to serve as a cart boy; (2) Blehm had an extraordinary history of unrepentant violence against women and girls; (3) Blehm was likely to assault a female if left alone with her; (4) L.W. would be alone with Blehm during her rounds; and (5) L.W. would not be prepared to defend against or take steps to avert an attack because she had not been informed at hiring that she would be left alone with violent offenders. The Defendants, like the officer in Wood, thus used their authority as state correctional officers to create an opportunity for Blehm to assault L.W. that would not otherwise have existed. The Defendants also enhanced L.W.'s vulnerability to attack by misrepresenting to her the risks attending her work.

These allegations support section 1983 liability. L.W. is not seeking to hold Defendants liable for Blehm's violent proclivities. Rather, L.W. seeks to make Defendants answer for their acts that independently created the opportunity for and facilitated Blehm's assault on her. Cf. Wood, 879 F.2d at 587-88; see also Cornelius v. Town of Highland Lake, 880 F.2d 348, 354-59 (11th Cir.1989) (City and prison officials' actions in operating prisoner work squad in populated area could form basis for section 1983 liability where, despite knowledge of prisoners' violent dispositions, officials failed to exercise adequate control and supervision, resulting in kidnapping and terrorizing of a city resident; the officials "significantly increased both the risk of harm to the plaintiff, and the opportunity for the inmates to commit the harm"), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990).

Because custody is not a prerequisite to the "danger creation" basis for a section 1983 third party harm claim, see also Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir.1990); Cornelius, 880 F.2d at 354-55, and because Defendants affirmatively created the dangerous situation which resulted in L.W.'s assault, the district court erred in dismissing L.W.'s claim for a failure to allege a custodial relationship between her and the Defendants.

B. Employment

Defendants next argue that L.W.'s status as a state employee should bar her claim. Defendants mistakenly rely on Collins, --- U.S. ----, 112 S.Ct. 1061.

In Collins, city sanitation employee Collins died of asphyxia after entering a...