United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
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]. The matter is fully briefed and at
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.
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.
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).
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).
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).
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)). “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.
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 ...