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Bishop v. State ex rel. Department of Human Services

United States District Court, W.D. Oklahoma

May 12, 2017




         Timothy Marvin Bishop (Bishop) brings this action against the Oklahoma Department of Human Services (OKDHS) and several OKDHS workers for abuse he suffered at the hands of Marc Lewis, the foster parent selected for him by OKDHS. Bishop alleges that Defendant Robyn Singleton Szuba (Szuba) failed to adequately investigate prior allegations of sexual abuse by Lewis. Bishop's claims arise under 42 U.S.C. § 1983, the Oklahoma Constitution, and the common law. Before the Court is Defendant Szuba's Motion for Summary Judgment [Doc. No. 141]. She contends that (1) she is entitled to judgment as a matter of law on Bishop's constitutional claims and (2) she is entitled to qualified immunity in her individual capacity. Bishop has filed his response in opposition [Doc. No. 148], to which Szuba has replied [Doc. No. 153].[1] The matter is fully briefed and at issue.


         Unless otherwise stated, the following material facts are undisputed, and, along with all reasonable inferences, are viewed in the light most favorable to Bishop. Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017). OKDHS was created for the purpose of “administering and carrying into execution” all laws enacted by the Oklahoma Legislature pursuant to § 1 of Article XXV of the Oklahoma Constitution. OKDHS is also required to “perform such other duties as may from time to time be prescribed by law.” At the time of the events alleged in this case, these “other duties” included the duties to investigate reports of suspected child abuse and neglect, and to place children in foster care under certain circumstances. From 1995 to August 1999, Szuba was employed by OKDHS as a child welfare social worker.

         In 1997, Bishop (then known as Antonio Combs) was placed in the custody of OKDHS when he was seven years old. In March 1999, DHS received a referral that stated children in a foster home operated by Marc Lewis were being exposed to sexually explicit photos, deprived of food, staying out late, sleeping in pool halls, and being verbally abused when they lost pool games. Another referral alleged photographs were found of Lewis having sex with children. Szuba determined that the allegations of abuse were unsubstantiated (“ruled out”). In August 1999, OKDHS placed Bishop in Lewis' home. At the time Bishop was placed with Lewis, Szuba was no longer employed by OKDHS. Bishop was sexually molested by Lewis between August 1999 and January 2000, when he was eventually removed by OKDHS. An investigation by OKDHS of Lewis led to him being convicted of several counts of first-degree rape, forcible oral sodomy, and indecent or lewd acts with a child under sixteen. He was sentenced to four life sentences plus 390 years, to be served consecutively.


         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016) (quoting Fed.R.Civ.P. 56(a)). The movant may make such a showing through the pleadings, depositions, other discovery materials, and affidavits. Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1142 (10th Cir. 2013). At the summary judgment stage, the Court views all of the facts in the light most favorable to the non-movant and draws all reasonable inferences from the record in favor of the nonmoving party. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016).

         Although the nonmoving party is entitled to all reasonable inferences from the record, the nonmovant must still identify sufficient evidence requiring submission to the jury in order to survive summary judgment. Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). Thus, if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue. Water Pik, 726 F.3d at 1143-44. “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and “[a]n issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).


         The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. In this regard, § 1983 creates a private right of action against any person who, under color of state law, deprives another individual of any rights, privileges or immunities secured by the Constitution and laws. Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1122-23 (10th Cir. 2009). To establish a claim for individual liability under § 1983, a plaintiff must show the defendant personally participated in the alleged constitutional violation. Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir. 1997).

         “Generally, state actors are only liable for their own acts, not for acts of private violence.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989)). However, there are two exceptions to this general principle: (1) the “special relationship” doctrine and (2) the “state-created danger” theory. Id. (citing Liebson v. N.M. Corr. Dep't, 73 F.3d 274, 276 (10th Cir. 1996)). “The special relationship doctrine applies ‘when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.'” Schwartz, 702 F.3d at 579 (citing J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011)).[3] “Broadly, the state-created danger theory applies when the State creates or increases a harm of private violence to an individual.” Id. at 579-80 (citing Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th Cir. 1998)). Only the special relationship doctrine is relevant to this case.

         “The special relationship triggers a continuing duty which is subsequently violated if a state official ‘knew of the asserted danger to [a foster child] or failed to exercise professional judgment with respect thereto, ... and if an affirmative link to the injuries [the child] suffered can be shown.'” Schwartz, 702 F.3d at 580 (citing Yvonne L. ex rel. Lewis v. N.M. Dep't of Human Servs., 959 F.2d 883, 890 (10th Cir. 1992) (paraphrasing in original)). To this end, the Tenth Circuit has stated:

Whether the state official failed to exercise professional judgment requires more than mere negligence; the official must have abdicated her professional duty sufficient to shock the conscience. Conduct is shocking to the conscience when the degree of outrageousness and magnitude of potential or actual harm is truly conscience shocking. Conscience-shocking behavior evades precise definition and evolves over time.

Id. at 585-86 (internal citations and paraphrasing omitted); see also Kingsley v. Hendrickson, ___ U.S. ___, 135 S.Ct. 2466, 2472, 192 L.Ed.2d 416 (2015) (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”) (quoting County of ...

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