FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:14-CV-01568-RM-MJW)
D. Ringel (Gillian Dale, with him on the briefs), Hall &
Evans, LLC., Denver, Colorado, appearing for Appellant.
Factor, Allen & Vellone, P.C., Denver, Colorado,
appearing for Appellee.
BRISCOE, EBEL, and MATHESON, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
sued Kelcey Patton under 42 U.S.C. § 1983 for violating
his right to substantive due process. He relies on a
"danger-creation theory, " which provides that
"state officials can be liable for the acts of third
parties where those officials created the danger that caused
the harm." Currier v. Doran, 242 F.3d 905, 917
(10th Cir. 2001) (quotations omitted).
Patton, a social worker for the Denver Department of Human
Services ("DDHS"), was one of those responsible for
removing T.D., a minor at the time, from his mother's
home, placing him into DDHS's custody, and recommending
T.D. be placed and remain in the temporary custody of his
father, Tiercel Duerson. T.D. eventually was removed from his
father's home after DDHS received reports that T.D. had
sexual contact with his half-brother, also Mr. Duerson's
son. DDHS later determined that during T.D.'s placement
with Mr. Duerson, T.D. had suffered severe physical and
sexual abuse at the hands of his father.
Patton moved for summary judgment on the ground that she is
entitled to qualified immunity. The district court denied the
motion. This interlocutory appeal followed. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm. Viewing
the facts in the light most favorable to T.D., we conclude
that, under Currier, Ms. Patton violated T.D.'s
clearly established substantive due process constitutional
right to be free of a state official's creation of danger
from a private actor.
agree with the district court that Ms. Patton violated
T.D.'s substantive due process right by knowingly placing
T.D. in a position of danger and knowingly increasing
T.D.'s vulnerability to danger. She recommended to the
juvenile court that T.D. be placed and remain in Mr.
Duerson's temporary custody despite her admitted concerns
about T.D.'s safety in the home, her knowledge of Mr.
Duerson's criminal history that included a conviction for
attempted sexual assault against a minor in his care, and
notice of evidence that Mr. Duerson was potentially abusing
T.D. She failed to inform the juvenile court about her
concerns and knowledge of Mr. Duerson's criminal history
and made her affirmative recommendations out of fear of being
also failed to investigate whether Mr. Duerson was abusing
T.D. despite her awareness of evidence of potential abuse.
This evidence included T.D.'s report that Mr. Duerson had
hit him with a wooden mop handle and school officials'
reports that T.D. was spending significant time in the
nurse's office complaining of body aches and appearing
fearful of his father. In the face of this information, she
recommended to the juvenile court that T.D. remain with his
father. Ms. Patton acted recklessly and in conscious
disregard of a known and substantial risk that T.D. would
suffer serious, immediate, and proximate harm in his
father's home. Her conduct, taken as a whole, shocks the
conscience and thus amounts to a substantive due process
violation under the Fourteenth Amendment.
on the facts and legal determination in this court's
Currier decision, a reasonable official in Ms.
Patton's shoes would have understood she was violating
T.D.'s constitutional rights. In both Currier
and here, county social workers removed children from their
mothers' homes and placed them in their fathers'
homes, where the children were abused. The social workers in
both cases failed to alert the juvenile court of relevant
facts undermining the fathers' fitness as caretakers and
recommended that the fathers assume custody of the
children-despite being on notice that the fathers' homes
were places of danger. And, in both cases, the social workers
failed to investigate whether the fathers were abusing their
children, despite being on notice of evidence suggesting
abuse. Ms. Patton's conduct sufficiently resembles the
conduct we held unconstitutional in Currier such
that a reasonable official in her position would have known
that her actions violated T.D.'s clearly established
right. She was therefore not entitled to qualified immunity.
following facts are presented in the light most favorable to
T.D., the nonmoving party on the request for summary judgment
on the danger-creation claim.See Gutierrez v. Cobos,
841 F.3d 895, 900 (10th Cir. 2016).
T.D.'s Removal from his Mother's
the son of Regina Garcia and Tiercel Duerson, who are
separated. The family has a troubled past, with the parents
having been referred to DDHS for intra-familial neglect, lack
of supervision, and intra-familial sexual abuse.
November 2009, T.D. turned 14 and was living with his mother,
Ms. Garcia. On November 2, 2009, DDHS was notified that T.D.
had not been in school, which served as a diversion program
for criminal charges, since mid-October. DDHS also learned
that his medications had not been refilled and he had not
participated in his mandated therapy. After T.D. did not
return to school, a DDHS social worker visited Ms.
Garcia's home and discovered the home in disarray, with
animal feces, cigarette butts, and piles of dirty clothes on
the floor. The social worker gave Ms. Garcia a list of tasks
to accomplish, including sending T.D. back to his diversion
December 15, 2009, DDHS was informed T.D. had been kicked out
of his diversion program for noncompliance and truancy. On
January 4, 2010, DDHS received another report that T.D.'s
violent behavior was escalating at school and at home. For
instance, T.D. had reportedly stabbed his sister with a fork
and had threatened to commit suicide.
early April 2010, T.D. was removed from his mother's home
and placed at the "Family Crisis Center."
DDHS's Petition for Dependency or
April 9, 2010, DDHS filed a "Petition in Dependency or
Neglect" for T.D. and his sister in juvenile court based
on DDHS's concerns that Ms. Garcia was unable to care for
her children. Ms. Patton was the DDHS case worker on the
Petition, and Lisa Gomez was appointed as T.D.'s guardian
12, 2010, the juvenile court held a hearing on the Petition.
Ms. Patton prepared a report for the hearing, signed by her
supervisor, Senait Ketema. In the report, Ms. Patton
determined the family's risk assessment score was
11-signaling a high level of risk-and that the children were
unsafe. Ms. Patton mentioned in the report that
Mr. Duerson had been incarcerated for two years for attempted
sexual assault on a minor and that Ms. Garcia had taken out a
restraining order against him to keep Mr. Duerson away from
her family. Ms. Patton recommended that T.D. remain in the
custody of DDHS for purposes of placement.
hearing, the juvenile court explored options for T.D.'s
placement. The court ordered DDHS to obtain a parental risk
assessment of Mr. Duerson under the applicable Colorado Sex
Offender Management Board ("SOMB") standards to
determine his likelihood of re-committing sex offenses, an
important factor to evaluate whether T.D. should be placed
with his father. Ms. Patton was responsible for arranging Mr.
Duerson's risk assessment, but failed to do
T.D.'s Placement in Shiloh House
25, 2010, the juvenile court ordered DDHS to place T.D. in
"Shiloh House, " a residential child care facility
where T.D. could live, receive treatment, and go to school.
30, 2010, the juvenile court held a permanency planning
hearing-one of several that would happen every few months to
determine T.D.'s placement and custody status. At this
hearing, a family therapist reported that Mr. Duerson was
making "great progress" in his therapy with T.D.
The therapist also relayed Mr. Duerson's request that
T.D. be placed in his care after T.D. was discharged from
Ms. Patton's Review of Mr. Duerson's Criminal
the next juvenile court hearing, Ms. Patton reviewed Mr.
Duerson's criminal history, which revealed:
• In 2005, Mr. Duerson was convicted and sentenced to
two years in prison for attempted sexual assault of a minor,
P.G., his step-child living in his care at the time of the
offense. Mr. Duerson was a registered sex offender for that
• In 2005, Mr. Duerson violated a restraining order by
attempting to contact P.G.
• In November 2007, Mr. Duerson violated probation. His
probation was revoked because he had "purposefully
failed" to complete his sex offender treatment
obligations had "been deceptive in disclosing his
relationship with his current girlfriend, " and had
"purposefully violated his no contact contract with his
girlfriend, while missing treatment appointments." Dist.
Ct. Order at 9 (quotations omitted). The probation report
documenting the violation stated that he was not amenable to
treatment and was unwilling to comply with his probation
• Mr. Duerson was charged, but not convicted, for other
offenses, including misdemeanor assault, misdemeanor wrongs
to minors, misdemeanor domestic violence, and misdemeanor
resisting police authority.
• Apart from his 2005 conviction, there had been
"multiple other incidents" involving Mr. Duerson
abusing P.G., including an incident when Mr. Duerson dragged
P.G. into a bedroom and grabbed her butt. Id.
of her investigation, Ms. Patton also reviewed what the
parties call the "Trails Report, " a document in
the DDHS's system prepared in 2005 by a DDHS social
worker. The report detailed that Mr. Duerson's 2005
conviction was based on his attempt to sodomize P.G. against
on her investigation, Ms. Patton's "gut [did not]
feel good" about, and she questioned, placing T.D. with
Mr. Duerson. Id. at 10.
The August 17, 2010 Hearing
August 17, 2010, before the next juvenile court hearing, Ms.
Patton, T.D., Briana Hutchinson (an outside family
therapist), Kyle Hommes (T.D.'s clinician at Shiloh
House), and Mr. Duerson met to discuss T.D.'s custody.
The attendees agreed T.D. was ready to transition from Shiloh
House to a lower level of care. Mr. Duerson reported that he
had successfully completed his offense-specific therapy and
that he was no longer on probation.
meeting participants approved a tentative plan-subject to Ms.
Gomez's approval-to transition T.D. from Shiloh House to
Mr. Duerson's home. The participants agreed to gradually
increase the visits between T.D. and Mr. Duerson, under the
supervision of Mr. Duerson's wife.
Patton misrepresented her knowledge of Mr. Duerson's
criminal history to the meeting participants. She also failed
to share with the meeting participants the full extent of her
concerns about T.D.'s placement with his father,
including that Mr. Duerson was not taking his sex offense
The September 7, 2010 Hearing
September 7, 2010, the juvenile court held another permanency
a. Report for the Hearing
the September 7, 2010 hearing, Ms. Patton submitted a report
to the juvenile court. It recounted how the participants at
the August 17, 2010 meeting agreed T.D. was ready to
transition to a lower level of care and that the family
therapist believed it was in T.D.'s best interest to
return to Mr. Duerson's home. The report also stated that
Mr. Duerson believed he was better equipped to address
T.D.'s special needs and that Mr. Duerson had completed
his offense-specific therapy and was no longer on probation.
Ms. Patton had informed the juvenile court that Mr. Duerson
had been convicted of a sexual offense against a minor in
2005 and was later put on probation for that offense, she did
not include all of her particular knowledge about that
conviction or other facts about Mr. Duerson's criminal
history in the final September 7, 2010 report. In the final
report, Ms. Patton did not attach Mr. Duerson's criminal
history or the Trails Report, which provided details of Mr.
Duerson's 2005 conviction. Nor did she inform the court
that his probation was revoked due to his purposeful failure
to fulfill his sex offender treatment obligations or the
"multiple" other incidents of abuse involving P.G.
initial draft of her report, Ms. Patton had expressed her
concerns about T.D.'s placement with his father,
including: Mr. Duerson's criminal record (and
specifically his attempted sexual assault on P.G. in 2005);
the 2007 revocation of his probation for purposeful failure
to fulfill his sex offender treatment obligations; and his
therapist's concern that he was "not taking
treatment seriously." Dist. Ct. Order at 10. Ms. Patton
intentionally omitted those concerns in her final report to
the juvenile court. She did so because her supervisor, Ms.
Ketema, had told her that DDHS was going to return T.D. to
Mr. Duerson and Ms. Patton should "not go against the
DDHS." Id. (quotations omitted). Ms. Patton
feared she would be fired if she included her knowledge or
concerns in her final report.
Patton and Ms. Gomez attended the hearing on September 7,
2010. No other professional from the August 17, 2010 meeting
was there. At the hearing, both Ms. Gomez and Ms. Patton
recommended T.D.'s transfer to Mr. Duerson's
custody.The juvenile court granted permission to
begin that transition.
the hearing, Ms. Patton did not discuss the information in
the Trails Report with Ms. Gomez. Ms. Gomez testified that
she was under a misconception about the nature of Mr.
Duerson's 2005 conviction, and, had she known about the
details of the offense documented in the Trails Report, she
"probably would not have recommended T.D.'s
placement with [Mr. Duerson]" to the juvenile court.
Id. at 11. (brackets and quotations omitted).
T.D.'s Transition and Placement in Mr.
were held on September 17 and October 8, 2010, to complete a
plan to transition T.D. from Shiloh House to Mr.
Duerson's home. T.D., Ms. Garcia, Mr. Duerson (at one
meeting), Ms. Hutchinson, Mr. Hommes, Mr. Duerson's wife,
Ms. Gomez, and a representative for DDHS attended. Ms. Patton
did not attend either meeting.
October 21, 2010, Ms. Gomez filed a Stipulated Agreement with
the juvenile court reporting that T.D. had successfully
transitioned to Mr. Duerson's home on October 15, 2010.
The Stipulated Agreement asked the court to give Mr. Duerson
"temporary legal custody" of T.D. so that T.D.
could enroll in school and be added to his father's
public assistance benefits. Id. at 13. It also
documented that Ms. Patton agreed with the placement. Other
than Ms. Patton and T.D.'s parents, none of the attendees
at the August 17, 2010 meeting, such as Ms. Hutchinson or Mr.
Hommes, were listed on the Stipulated Agreement.
November 3, 2010, the juvenile court granted "temporary
legal and physical custody" of T.D. to Mr. Duerson
"under an order of supervision by [DDHS]."
Id. (quotations omitted).
The December 13, 2010 Hearing
Patton prepared a report for a December 13, 2010 juvenile
court hearing. It stated that Mr. Duerson had successfully
completed probation, was compliant with DDHS's treatment
plan, and was in contact with Ms. Patton. It also stated that
T.D.'s behavior was improving to a point where he could
transition from attending school at Shiloh House to attending
a local school. In the report, Ms. Patton recommended that
T.D. remain in Mr. Duerson's temporary custody.
December 2010, Mr. Duerson and T.D. were discharged from
their required family therapy sessions. The therapist stated
in her discharge report that the family had reached their
treatment goals and that she had "no safety concerns
regarding [Mr. Duerson's] house." Id. at
The March 21, 2011 Hearing
juvenile court held another permanency planning hearing on
March 21, 2011. In her report for the hearing, Ms. Patton
said T.D.'s behavior had improved at school and at home
and that, overall, T.D. "was flourishing" in Mr.
Duerson's home. Id. She noted a minor concern
that T.D. had missed 30 class periods in the second school
term, which Mr. Duerson blamed on conflicting appointments
and T.D. being sick. Ms. Patton said that she encouraged the
family to try not to schedule appointments during school. Ms.
Patton's report recommended that temporary custody of
T.D. remain with Mr. Duerson.
The June 13, 2011 Hearing
report prepared for a June 13, 2011 permanency planning
hearing, Ms. Patton wrote that Mr. Duerson had used physical
punishment on T.D. Specifically, T.D. had told her and Ms.
Gomez that his father had hit him across the back with a
wooden mop handle for not completing his chores. School
officials had told her that, in the last few months, T.D. had
spent a lot of time at the nurse's office complaining of
sickness and body aches, appeared to be afraid of his father,
and at times did not want to go home. Ms. Garcia had reported
that, during weekend stays with her, T.D. had acted
disrespectfully, refused to complete chores, smelled badly,
and had unclean clothes when he arrived at her home. Ms.
Patton stated in her report that, as a result of this
information, she had referred Mr. Duerson to participate in
DDHS's Fatherhood Initiative Program.
report, Ms. Patton stated that, although she had "some
concerns" with Mr. Duerson's "parenting skills,
" she still recommended that T.D. remain in his
father's custody. Id. at 15. She testified at
her deposition that she made this recommendation despite the
fact that she truly "wanted to remove T.D. from [his
father's] home because she was afraid for T.D.'s
safety." Id. She did not express her concerns
to the juvenile court because her supervisor, Ms. Ketema, had
told her that T.D. would remain in his father's home, and
Ms. Patton was afraid she would be fired if she did not
recommend T.D. remain with his father.
June 13, 2011 hearing, the juvenile court ordered Mr. Duerson
to participate in the recommended Fatherhood Initiative
Program and not to use physical discipline on T.D.
The August 25, 2011 Hearing
report for an August 25, 2011 hearing, Ms. Patton informed
the juvenile court that she was having trouble reaching Mr.
Duerson and was unable to contact him for a period of time.
She had no face-to-face contact with T.D. in July, as her
supervisor had instructed.
Patton reported that she could confirm Mr. Duerson's
attendance at only one fatherhood class since the last
hearing in June. She also reported that she had tried several
times, without success, to conduct a written parental
assessment of Mr. Duerson. She stated, however, that Mr.
Duerson was participating actively in family therapy and
acting appropriately with young children. She recommended
that T.D. remain in the temporary custody of Mr. Duerson.
And, although she had failed to visit Mr. Duerson's home
at least every other month as DDHS policy required, the
report mistakenly stated Ms. Patton had made monthly visits
to the home.
T.D.'s Removal from Mr. Duerson's
September 19, 2011, DDHS received a report of sexual contact
between T.D. and his half-brother. On September 21, 2011,
DDHS removed T.D. from Mr. Duerson's home and took him
into its temporary custody the next day.
report prepared for a November 16, 2011 hearing, Ms. Patton
stated she had minimal communication with Mr. Duerson since
the last hearing in August, and that Mr. Duerson's
youngest children had been removed from the home due to
domestic violence and drug use. She further reported that Mr.
Duerson had attended only one fatherhood class since getting
temporary custody of T.D., had moved out of state, and was
not complying with his treatment plan.
Report and Investigation of Abuse
March 2014, T.D. reported that Mr. Duerson had abused him
while he was in his father's temporary custody. DDHS
investigated and concluded that:
• In August 2011, Mr. Duerson had repeatedly sexually
assaulted T.D. by forcibly orally sodomizing him twice;
• Mr. Duerson had hit T.D. with a broomstick and
threatened to knock him unconscious and send him to the
hospital for not performing oral sex on him;
• Mr. Duerson had forced T.D. to perform oral sex on him
for 10-15 minutes as punishment for T.D.'s staying up
past his bedtime;
• Mr. Duerson had physically forced T.D. and his
three-year-old brother to perform oral sex on each other; and
• Mr. Duerson had told T.D. not to tell anyone about the
determined the abuse T.D. had suffered while in Mr.
Duerson's home was "severe." Id. at
2014, Ms. Garcia, on behalf of T.D., sued Ms. Patton and DDHS
in state court alleging they violated T.D.'s substantive
due process right under the Fourteenth Amendment. The
defendants removed the case to the United States District
Court for the District of Colorado. Plaintiffs' second
amended complaint, the operative one here, raised a §
1983 substantive due process claim against Ms. Patton and
DDHS based on a danger-creation theory and a
filed a motion for partial summary judgment on the
special-relationship theory. Ms. Patton filed a cross-motion
for summary judgment on both theories, asserting a defense of
qualified immunity. DDHS also moved for summary judgment on
the § 1983 claim.
court granted summary judgment in Ms. Patton's favor on
the special-relationship theory and against her on the
danger-creation theory. On the danger-creation theory, the
court concluded that Ms. Patton's conduct amounted to a
constitutional violation and that, based on Currier,
her conduct violated clearly established law. The court also
granted summary judgment to DDHS.
does not appeal the grant of summary judgment to Ms. Patton
on the special-relationship theory or the grant of summary
judgment to DDHS. This appeal thus concerns only the
court's order denying qualified immunity to Ms. Patton on
T.D.'s danger-creation claim.
affirm the district court's denial of qualified immunity
because the facts, taken in the light most favorable to T.D.,
show Ms. Patton violated T.D.'s clearly established
substantive due process right under the Fourteenth Amendment.
We first describe the applicable standard of review and legal
standards. We then analyze whether (1) Ms. Patton violated
T.D.'s substantive due process right under a
danger-creation theory and (2) whether his right was clearly
Standard of Review
review summary judgment de novo, applying the same legal
standard as the district court." Gutierrez, 841
F.3d at 900. A "court shall grant summary judgment 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." Fed.R.Civ.P. 56(a). "When applying
this standard, we view the evidence and draw reasonable
inferences therefrom in the light most favorable to the
nonmoving party, " Gutierrez, 841 F.3d at 900,
here T.D., as the nonmoving party on the danger-creation
42 U.S.C. § 1983 and Qualified Immunity
42 U.S.C. § 1983, a person acting under color of state
law who "subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured."
"Individual defendants named in a § 1983 action may
raise a defense of qualified immunity, which shields public
officials . . . from damages actions unless their conduct was
unreasonable in light of clearly established law."
Gutierrez, 841 F.3d at 899.
an individual defendant asserts qualified immunity, the
plaintiff carries a two-part burden to show: (1) that the
defendant's actions violated a federal constitutional or
statutory right, and, if so, (2) that the right was clearly
established at the time of the defendant's unlawful
conduct." Id. at 900 (quotations omitted).
"This is a heavy burden. If the plaintiff fails to
satisfy either part of the inquiry, the court must grant
qualified immunity." Carabajal v. City of
Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).
plaintiff may show clearly established law by pointing to
either a Supreme Court or Tenth Circuit decision, or the
weight of authority from other courts, existing at the time
of the alleged violation. Gutierrez, 841 F.3d at
900. To be clearly established, "existing precedent must
have placed the statutory or constitutional question beyond
debate." White v. Pauly, 137 S.Ct. 548, 551
(2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308
(2015)). Although there need not be a "case directly on
point, " id. (quoting Mullinex, 136
S.Ct. at 308), "[a]n officer 'cannot be said to have
violated a clearly established right unless the right's
contours were sufficiently definite that any reasonable
official in his shoes would have understood that he was
violating it.'" City & Cty. of San Francisco
v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (brackets
omitted) (quoting Plumhoff v. Rickard, 134 S.Ct.
2012, 2023 (2014)).
must not define "clearly established law at a high level
of generality." Id. at 1776 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Instead, "the clearly established law must be
'particularized' to the facts of the case."
White, 137 S.Ct. at 552 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). "Otherwise,
'plaintiffs would be able to convert the rule of
qualified immunity into a rule of virtually unqualified
liability simply by alleging ...