Hubbard v. OK Dept of Human Services ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KEN HUBBARD; CONNIE HUBBARD,
as Administrators of the Estate of Andrew
DeWayne Prior, deceased, and as guardians
and next friends of C.E.H., a minor child,
and E.J.H., a minor child,
Plaintiffs - Appellants,
v.
No. 17-6162
THE STATE OF OKLAHOMA ex rel. (D.C. No. 5:16-CV-01443-HE)
THE OKLAHOMA DEPARTMENT OF (W.D. Okla.)
HUMAN SERVICES; FRANCIA ALLEN;
TONYA BUSBY; KRYSTAL
CARAWAY; LATOYA CLARK; LINDA
DEVIN; BROOKE DEMERS; RYAN
DUGGER; CODY EASON; JESSICA
ELMORE; KELLIE HEATH; JERMAINE
JOHNSON; KATHLEEN KEANY;
HEATHER KELLEY; MICHAEL
KINDRICK; AUBREY KING; AMY
MCCARTNEY; AUBREY MEEKER; TIA
MORGAN; JOYCE PORTER; JANET
RHYNE; COLETTE THOMPSON; ROB
WILLIAMS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before LUCERO, McKAY, and MATHESON, Circuit Judges.
_________________________________
Ken Hubbard and Connie Hubbard are the great uncle and great aunt of minor
children E.J.H. and C.E.H., as well as the administrators of the estate of minor child A.P.
(together, “the Hubbards”). The Hubbards sued numerous employees of the Oklahoma
Department of Human Services (“DHS”) under 42 U.S.C. § 1983 for violations of the
children’s substantive due process rights under the Fourteenth Amendment. In addition,
they brought tort claims for negligence and wrongful death under Oklahoma state law
against DHS and individual DHS employees. They sought injunctive relief and a
declaratory judgment based on the federal claims. The Hubbards now appeal the district
court’s order dismissing their amended complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s
dismissal of the federal claims and remand on the state claims to consider whether
supplemental jurisdiction should be declined to enable the Hubbards to bring their state
claims in state court.
2
I. BACKGROUND
A. Factual Background
In considering a motion to dismiss, we accept the allegations in the complaint1 as
true and view the allegations and all reasonable inferences in favor of the plaintiffs—
here, the Hubbards. Mayfield v. Bethards, 826 F.3d 1252, 1258 (10th Cir. 2016).
Biological Parent Custody
Between August 2011 and February 2013, DHS received nine referrals expressing
concerns that E.J.H., C.E.H., and A.P. were being abused and neglected by their
biological parents. Aplt. App., Vol. II at 284. These referrals included the following
allegations: (1) the presence of a convicted sex offender in the home, substance abuse,
and apparent mental health issues with the parents; (2) lack of supervision and a
convicted sex offender still in the home; (3) open drug use in the home; (4) unattended
children while a fire burned in the backyard and firefighters later noting a “horribly dirty”
and unsafe home; (5) failure to provide A.P. with food or clothing and failure to visit A.P.
in the hospital when he was suffering respiratory problems (he had been taken there by a
babysitter); and (6) a “filthy beyond filthy” home, with the children unattended and the
parents using methamphetamine. Id. at 279-82.
Following referral (4) about the fire, the biological father admitted to DHS to
having schizophrenia and using marijuana. Id. at 281. The maternal grandmother, who
1
The amended complaint, the operative complaint here, is located at pages 277-
304 of Volume II of the Appellants’ Appendix. We cite to the relevant Appendix page
number when referencing the amended complaint.
3
resided in the home, admitted to DHS a history of smoking crack cocaine and stated that
her own children had previously been taken away from her due to drug abuse and failure
to protect them from sexual abuse. Id. Following referral (6), E.J.H. told DHS that he
received a “whoopin’ on his butt with a paddle and belt.” Id. at 282. He also complained
about bugs in the house and said his parents made no attempt to get rid of them. Id. In
follow-up interviews, the biological father again admitted he had schizo-affective
disorder and bipolar disorder but was not on medication for them. Id. at 282-83. He also
admitted he had hit his wife. Id. at 282. The biological mother admitted to using
marijuana. Id. at 283.
In February 2013, the Tulsa Police Department was called about allegations of
neglect, dangerous conditions, and child abuse (A.P. had recently been hospitalized for
grease burns). Id. When officers arrived, they noted that the house was stacked with
garbage, had no running water, and that the bathroom was full of feces. Id. The police
determined that the biological parents’ home was unsuitable for the children and directed
that they be removed. They made this determination just weeks after a DHS employee
had visited the home and determined it was suitable. Id. at 284.
A state court adjudicated the children to be deprived. Id. DHS formulated
Individualized Service Plans for the biological parents, but before those plans were
implemented, and before the unsuitable home conditions were corrected, DHS employees
recommended a trial reunification. The state court adopted the trial reunification plan in
May 2013, and the children were returned to their biological parents’ home. Id.4
The biological parents, however, continued to keep an unsafe home, and the trial
reunification was unsuccessful. The parents were arrested for child abuse in August 2013
after a referral to DHS for serious neglect was relayed to police. Id. at 284-85. Reporting
on their visit to the home, the police stated that it smelled of “spoiled food, animal urine
and feces and garbage.” Id. at 285. Police officers noted “the two children’s beds were
both filthy and stained with what appeared to be urine, there was a large cockroach nest
in the children’s bedroom, with thousands of cockroaches crawling on the bedding,
clothing, walls, and windows.” Id.Foster Placement with the Krajians
In August 2013, DHS placed the children in the foster care of Mallory and Peter
Krajian (“the foster parents”).2 DHS records show that the Krajians, when they enrolled
in the foster parent program, indicated they were unwilling to accept foster children with
a history of “inappropriate sexual activity, sexually abusing others,” or being “sexually
active.” Id. at 286.
During the time the children were in foster care, DHS continued to receive
referrals concerning their welfare. In September 2013, a referral from the Krajians
alleged that E.J.H. was sexually assaulting his sister C.E.H. Id. at 287. In associated
interviews, C.E.H. said her brother “made her touch his pee pee,” that more than once he
“touched her pee pee with his mouth,” and that he “made [her ‘pee pee’] hurt.” Id. Ms.
2
At the time of their placement with the Krajians, E.J.H. was 5 years old, Aplt.
App., Vol. III at 407; C.E.H. was 3, id.; and A.P. was 2, id., Vol. I at 63.
5
Krajian told DHS employees that C.E.H. also said her brother “stuck his private in
[A.P.]’s butt.” Id.DHS arranged therapy for E.J.H. and C.E.H., but the Krajians often failed to take
the children to their scheduled session, missing at least six appointments. Id. at 288. One
DHS supervisor, Joyce Porter, wrote of the failed appointments that her employee Tonya
Busby’s lack of effort on the case was “heinous & shocking” and that “we cannot allow
one more week to go by without therapeutic intervention.” Id.In October 2013, a babysitter sent DHS another referral indicating that the
children continued to act out sexually. Id. Investigating this referral, a DHS supervisor,
Amy McCartney, detected “a strong odor of Marijuana” at the home and noticed that Ms.
Krajian had bloodshot eyes. Id. E.J.H. said in an interview that he was being disciplined
through spanking, that he was made to sleep on the floor when he was bad, that his foster
parents smoked something in the home, and that he had been “bad with his sister by
having sex with her.” Id. at 289. C.E.H. told Ms. McCartney that her brother came into
her room in the night and touched her sexually, and stated “I don’t like it when he
touches my privates.” Id. The same evening, supervisor Krystal Caraway contacted
supervisor Rob Williams expressing concerns about the Krajian household. Id. Mr.
Williams told her that he was working toward removing E.J.H. from the home and
placing him elsewhere. Id. The next month, at a staffing conference, DHS supervisor
Ms. McCartney reported smelling marijuana on a visit and reported the children were
being spanked and made to sleep on the floor. Id. at 290. DHS employees decided at this
point (early November) to make future unannounced visits to the home. Id.6
In February 2014, E.J.H. was removed from the home and placed in a different
foster program called the Integris Medical STAR program. Id. The STAR program
received a report that Ms. Krajian had scalded and injured A.P. by placing him in a hot
bath, and that she blamed these injuries on E.J.H. Id. DHS did not open a referral
incident based on this report. Id. at 291. E.J.H. remained in the STAR program until
July and was then released back into the Krajian household. Id. During his time away,
the Krajians did not participate in his STAR program treatment and also missed or
cancelled roughly half of the therapy appointments scheduled for C.E.H. Id. at 290-91.
E.J.H. told a STAR therapist in May 2014 that he had previously had sexual contact with
his sister. Id. at 231.
On August 27, 2014, DHS received a referral reporting that A.P. was in the
hospital. He had sustained a C-1 vertebral fracture and an occipital skull fracture, which
resulted in his death on August 31, 2014. Id. at 291-92. E.J.H. maintained that the injury
was from A.P.’s falling off a couch while jumping and hitting his head on a coffee table.
Id. at 292. C.E.H. disclosed in an associated interview that she had been spanked with a
wooden hanger until she bled and that Mr. Krajian had pulled out tufts of her hair,
leaving bald patches (which were noted by the doctors as well). Id. Ms. Krajian was
charged in state court with felony child abuse murder. Id. at 278. Following A.P.’s
death, E.J.H. and C.E.H. were removed from the foster home and placed with the
Hubbards.
B. Procedural History
The Hubbards filed a complaint in Oklahoma state court against DHS and several
7
employees, along with Dayspring Community Services (“Dayspring”) and Laura Fox, an
employee there, over the death of A.P. while in foster care. Aplt. App., Vol. I at 15. The
Defendants removed the case to federal district court and filed motions to dismiss. See
id. at 33, 49, 61, 122. The Hubbards were granted leave to amend their complaint, and
they dropped their claims against some defendants, including against Dayspring and Ms.
Fox.
The amended complaint alleged a federal civil rights violation against individual
DHS employees under 42 U.S.C. § 1983, asserting that their conduct deprived the
children of their substantive due process rights.3 Aplt. App., Vol. II at 292. It also
alleged state law negligence and wrongful death violations against DHS and individual
DHS employees. Id. at 297, 301. Additionally, the amended complaint sought “a
declaratory judgment that declares that DHS has failed to allocate necessary and adequate
funding such that DHS, through its employees, was not able to meet regulatory and
legislative requirements regarding appropriate supervision, protection and oversight of
minors . . . .” Id. at 295-96.
The Defendants again moved to dismiss, and the district court granted their
motion. Aplt. App., Vol. III at 418.
3
The Hubbards did not allege a federal civil rights claim against DHS itself. See
Aplt. App., Vol. II at 292 (“The conduct of the individual Defendants . . . deprived [the
children] of the following [constitutional] rights.”); see also Aplt. Br. at 31-39, 40-43
(discussing federal civil rights claim in “Individual Defendants” section of briefing and
not in “Department of Human Services” section).
8
Summary of the Hubbards’ Claims
The Hubbards’ allegations against individual DHS employees are summarized
alphabetically below. For the purposes of a motion to dismiss, the allegations are taken
as true:
a. Pre-foster care
 Francia Allen: Ms. Allen appears to have been the children’s case manager up
until June 2013. Aplt. App., Vol. II at 285. Ms. Allen recommended a trial
reunification of the children with their biological parents despite DHS not yet
implementing its plan for the home, thereby allegedly placing the children “in
imminent risk of further abuse” and increasing their “vulnerability to such abuse.”
Id. at 284.
 Tonya Busby: Ms. Busby “took over” the children’s “case” in mid-June 2013. Id.
at 285. She had visited the home only “a couple of times” between June and early
August. Id. A referral in August during the trial reunification with the biological
parents eventually led to their arrest for child abuse. See id. at 284-86. The police
responding found a large cockroach nest in the children’s bedroom and an
extremely filthy home. Id. at 285. Ms. Busby had noted flies in the home, but was
not sure where they were coming from (even though a police officer reported that
there were feces and urine all over the bathroom). Id. at 286. She did not
normally check the home to see if there was food available. Id. Upon the arrest of
the biological parents, Ms. Busby “chuckl[ed]” and said that her scheduled
unannounced visit to the home was no longer necessary. Id. at 286.
9
 Krystal Caraway: Ms. Caraway was a supervisor during trial reunification, which
resulted in the referral and the arrest of the biological parents for child abuse. Id.
at 284-86.
 Latoya Clark: Ms. Clark was a supervisor who received the August 2011 referral
(1)4 regarding a convicted sex offender living in the home, as well as substance
abuse and mental health issues alleged regarding the parents. Id. at 279-80. She
allegedly “took no action to protect or safeguard the [c]hildren from physical
and/or sexual abuse, which inaction either enhanced the risk of further abuse, or
increased the vulnerability to such abuse.” Id. at 280.
 Linda Devin: Ms. Devin was a supervisor who received the December 2011
referral (4) regarding a fire burning in the backyard. Id. at 280-81. She allegedly
“determined that the children were in a safe environment without any safety
threats,” id. at 281, and “took no action to protect or safeguard the [c]hildren from
physical and/or sexual abuse, which inaction either enhanced the risk of further
abuse, or increased the vulnerability to such abuse.” Id. Cody Eason: Mr. Eason was present for the referral during the trial reunification
that led to the parents’ arrest for child abuse based on a squalid home. Id. at
284-85.
4
The numbers listed in these excerpts about individual defendants correspond to
the numbered referrals in the second paragraph of the “Factual Background” section
above.
10
 Jessica Elmore: Ms. Elmore recommended a trial reunification of the children
with their biological parents despite DHS’s not yet having implemented its plan
for the home, thereby allegedly placing the children “in imminent risk of further
abuse” and increasing their “vulnerability to such abuse.” Id. at 284.
 Kathleen Keaney: Ms. Keaney received a September 2011 referral (3) alleging
open drug use in the home. DHS screened out this referral. Id. at 280.
 Heather Kelley: Ms. Kelley was on duty during an August 2011 referral (1). She
requested an interview with A.P. the next day but was told he was unavailable
because he was at an aunt’s house. Id. at 279. She observed E.J.H. and C.E.H.
bite and attack one another during a visit in August 2011. Id. at 279-80. She
received a referral (4) concerning an unattended fire burning in the backyard in
December 2011. Id. at 280. Following this referral she interviewed the biological
family and learned about prior drug use by the parents and relatives and parental
mental history. Id. at 280-81. Despite the fire incident and her learning of new
information about the family, she “determined that the children were in a safe
environment without any safety threats.” Id. at 281. She received a February
2012 referral (5) regarding neglect of A.P. (no food, no clothing, and a necessary
hospital visit for respiratory problems where neither of his parents visited him).
Id. at 281-82. Ms. Kelley allegedly waited five days to open an investigation into
the matter. Id. at 282. For each of these referrals, Appellants allege Ms. Kelley
“took no action to protect or safeguard the [c]hildren from physical and/or sexual
11
abuse, which inaction either enhanced the risk of further abuse, or increased the
vulnerability to such abuse.” Id. at 281, 282.
 Michael Kindrick: Mr. Kindrick was on duty during an August 2011 referral (1).
Id. at 279. He allegedly “took no action to protect or safeguard the [c]hildren from
physical and/or sexual abuse, which inaction either enhanced the risk of further
abuse, or increased the vulnerability to such abuse.” Id. at 281.
 Aubrey King-Meeker: Ms. King-Meeker received a February 2013 referral (6)
alleging lack of supervision, threat of harm to the children (because of drug abuse
in the home), and inadequate, dirty, and dangerous shelter. Id. at 282. It took her
days to make contact with the family. Id. Upon investigating, she saw a scar on
E.J.H.’s face. He told her that he had been “whoop[ed]” with a paddle and belt
and about being bitten by bugs in the home. Id. The parents told her about abuse
and violence between them, about mental health diagnoses, and self medication.
Id. at 282-83. In the same month, police came to the house and started the process
of removing the children after they found “deplorable living conditions” and after
A.P. suffered grease burns and had to go to the hospital. Id. Only upon the police
department’s intervention did Ms. King-Meeker petition the court for the
children’s removal from the home. Id. at 283-84. Ms. King-Meeker allegedly
“took no action to protect or safeguard the [c]hildren from physical and/or sexual
12
abuse, which inaction either enhanced the risk of further abuse, or increased the
vulnerability to such abuse.” Id. at 283.5
 Tia Morgan: Ms. Morgan was a supervisor on the February 2012 referral (5). Id.
at 281.
 Janet Rhyne: Ms. Rhyne was a supervisor on the February 2013 referral (6) with
Ms. King-Meeker alleging lack of supervision and threat of harm to the children.
Id. at 282. Through Ms. King-Meeker’s interview, she learned of abuse and
violence by the parents as well as their drug and mental health history. She
allegedly “took no action to protect or safeguard the [c]hildren from physical
and/or sexual abuse, which inaction either enhanced the risk of further abuse, or
increased the vulnerability to such abuse.” Id. at 283.
b. During foster care
The children were placed in foster care in August 2013 and lived with the
Krajians.
 Tonya Busby: Ms. Busby received a September 2013 referral that E.J.H. was
sexually assaulting his sister. Id. at 287. Through interviews with C.E.H. and Ms.
Krajian, she received more detailed information, including that E.J.H. sexually
assaulted A.P. Id. DHS set up therapy sessions for the children, but Ms. Busby
5
Although the Hubbards stated in their amended complaint that Ms. King-Meeker
and other pre-foster-care defendants took no action to protect the children from sexual
abuse, the first reports to DHS of sexual activity listed in the amended complaint were in
September 2013, following foster placement with and a referral from the Krajians. Aplt.
App., Vol. II at 287.
13
allegedly did not follow up with the Krajians on the missed appointments. Id. at
288. Her supervisor, Ms. Porter, described Ms. Busby’s lack of effort on the case
as “heinous & shocking.” Id. Ms. Busby also received an October referral that the
children were acting out sexually and did not seem to take action. Id. She
reported to her supervisor that she had only been to the Krajian home once, and on
a scheduled and announced visit (rather than unannounced visits, as DHS had,
at least by early November, determined to pursue). Id. at 290.
 Krystal Caraway: Ms. Caraway, a supervisor, received the September and October
2013 referrals, both of which detailed the children’s sexual activity with one
another. Id. at 287-88. She allegedly “took no action to protect or safeguard the
[c]hildren . . . from physical and/or sexual abuse, which inaction either enhanced
the risk of further abuse, or increased the vulnerability to such abuse.” Id. at 287,
288. She was present for a meeting where it was decided to do unannounced
home visits going forward. 6 Id. at 290. She had a discussion with Mr. Williams
about next steps and was told that Mr. Williams was planning to remove E.J.H.
from the home. Id. at 289.
 Brooke Demers: Ms. Demers received the September 2013 referral concerning
sexual activity among the children and was also present at a November meeting
where DHS decided to do unannounced home visits going forward. Id. at 287,
6
The unannounced home visits allegedly did not happen. Aplt. App., Vol. II
at 290 (“[N]o such unannounced visits are reflected in DHS records.”).
14
290. She allegedly “took no action to protect or safeguard the [c]hildren . . . from
physical and/or sexual abuse, which inaction either enhanced the risk of further
abuse, or increased the vulnerability to such abuse.” Id. at 287.
 Ryan Dugger and Jermaine Johnson7: Mr. Johnson received the August 2014
referral concerning A.P.’s skull fracture and a bad bruise on A.P.’s arm. Id.
at 291. Mr. Dugger also learned through an interview with a doctor about the
missing patches of hair on C.E.H.’s head. Id. at 292.
 Cody Eason: Mr. Eason received a September 2013 referral that E.J.H. was
sexually assaulting his sister. Id. at 287. Through interviews with C.E.H. and Ms.
Krajian, he received more detailed information (including that E.J.H. sexually
assaulted A.P.). The complaint alleges that Mr. Eason took no action to protect
the children. Id. Kellie Heath: Ms. Heath served as a DHS district director. She was present at a
November meeting where Ms. McCartney discussed her October home visit and
where it was decided to do unannounced home visits going forward. Id. at 290.
 Amy McCartney: Ms. McCartney conducted a home visit after the October 2013
referral. She smelled marijuana and saw Ms. Krajian’s bloodshot eyes. Id. at 288.
During an interview, E.J.H. told her he was spanked and told to sleep on the floor
when bad, and also told her that “he was bad with his sister by having sex with
7
It is unclear whether Mr. Dugger was dropped as a defendant between
complaints. The district court treated him as a party and dismissed the claims against
him. Aplt. App., Vol. III at 412 n.5.
15
her.” Id. at 289. Appellants allege she “took no action to protect or safeguard the
[c]hildren . . . from physical and/or sexual abuse, which inaction either enhanced
the risk of further abuse, or increased the vulnerability to such abuse.” Id. Ms.
McCartney told various other DHS employees about what she learned at the visit
and said that she did not believe the Krajians were equipped to handle their foster
assignment. Id. at 290. DHS decided to start conducting unannounced visits
sometime after this conversation, but it is not clear how Ms. McCartney was
involved in that decision. Id. Ms. McCartney also received the August 2014
referral concerning A.P.’s skull fracture and interviewed E.J.H., C.E.H., and Ms.
Krajian’s sister. In those interviews she learned from C.E.H. that Mr. Krajian had
been pulling out her hair, leaving missing patches, and that the Krajians had
spanked her with a wooden hanger until she bled. Id. at 292. Ms. Krajian’s sister
told Ms. McCartney that she had seen the children with bruises and bald spots on
multiple occasions. Id. Joyce Porter: Ms. Porter was Ms. Busby’s supervisor. Ms. Porter allegedly
allowed the Krajians to miss their therapy appointments. Id. at 288. Ms. Porter
also received the August 2014 referral concerning A.P.’s skull fracture. Id. at 291.
 Colette Thompson: Ms. Thompson received the October 2013 referral concerning
the children acting out sexually while in a babysitter’s care. Id. at 288. She
allegedly “took no action to protect or safeguard the [c]hildren . . . from physical
and/or sexual abuse, which inaction either enhanced the risk of further abuse, or
increased the vulnerability to such abuse.” Id. She was present at a November
16
meeting where Ms. McCartney discussed her October home visit and where it was
decided to do unannounced home visits going forward. Id. at 290. She was also
one of Ms. Busby’s supervisors. Id. at 288.
 Rob Williams: Mr. Williams received the September and October 2013 referrals
discussing the sexual activity among the children. Id. at 287, 288. He allegedly
“took no action to protect or safeguard the [c]hildren . . . from physical and/or
sexual abuse, which inaction either enhanced the risk of further abuse, or increased
the vulnerability to such abuse.” Id. at 288. He was present at a November
meeting where Ms. McCartney discussed her October home visit (which noted
drug use, spanking, and sleeping on the floor) and where it was decided to do
unannounced home visits going forward. Id. at 290. It took Mr. Williams
approximately four months to arrange the removal of E.J.H. from the home (after
stating his intention to do so to another DHS employee). Id. at 289, 290. He also
served as one of Ms. Busby’s supervisors. See id. at 287.
District Court Decision
The district court concluded the amended complaint failed to state a claim against
any defendant and granted the Defendants’ motions to dismiss. Hubbard v. Oklahoma ex
rel. Oklahoma Dep’t of Human Servs., No. CIV-16-1443-HE, slip op. at 18-19 (W.D.
Okla. June 19, 2017) (unpublished).
17
a. Federal substantive due process claims under the Fourteenth Amendment
The district court dismissed the § 1983 Fourteenth Amendment substantive due
process claims against the individual defendants for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Aplt. App., Vol. III at 414.
i. DHS employees involved in pre-foster-placement
The district court dismissed all § 1983 claims against DHS employees who were
involved with the children only before the foster placement. It said no viable theory of
constitutional relief was available on these claims. See Aplt. App., Vol. III at 405-06.
Section 1983 does not provide for claims against government officials for failure to
protect individuals from the private violence of another except when (1) there is a special
relationship or (2) if the state created the danger. The district court held that neither
exception applied to the pre-foster-care defendants. Id. Accordingly, the court dismissed
the federal claims against defendants Allen, Clark, Devin, Elmore, Keaney, Kelley,
Kindrick, King-Meeker, Morgan, and Rhyne. Id. at 406.
ii. DHS employees involved during foster placement
The district court dismissed all of the § 1983 claims against the during-foster-care-
placement DHS defendants. The court held that the “special-relationship” exception
applied because DHS had placed the children in foster care. Id. at 405. But the Hubbards
needed to show that each defendant’s conduct “shocked the conscience.” Id. The court
held that, at most, the Hubbards’ allegations may have shown negligence but not the
“more exacting constitutional standard” of “shock the conscience.” Id. at 406. As a
18
result, it held the § 1983 allegations failed to state a claim against any of the defendants.
Id. at 414.
More specifically, the district court reviewed the claims against each during-
foster-care defendant as follows:
 Ms. Busby: Ms. Busby’s acts “would certainly constitute negligence and perhaps
come closer to meeting the constitutional [‘shock the conscience’] standard than
do the allegations against other individual defendants. However, they do not
ultimately allege conduct that meets the ‘shock the conscience’ standard.” Id.
at 408.
 Ms. Caraway: Ms. Caraway’s failure to help follow up on the November plan to
start making unannounced visits to the Krajian home may have been negligent, but
not conscience-shocking, in part because she voiced her concerns to others. See
id. at 410-11.
 Ms. Demers: Ms. Demers’s failure to follow up on the November plan to start
making unannounced visits to the Krajian home may have been negligent, but not
conscience-shocking. Also, a September 2013 referral she received was followed-
up with an investigation. Id. at 411.
 Defendants Dugger and Johnson: They became involved in the case in August
2014, after the abuse concluded. Id. at 412-13.
 Mr. Eason: “At most, the amended complaint arguably supports an inference that
Mr. Eason (or someone) should have responded to the accounts of sexual acting
19
out by E.J.H. sooner than he did. But that is, at most, simple negligence and does
not constitute behavior that shocks the conscience.” Id. at 407.
 Ms. Heath: “At worst, Ms. Heath failed to follow up as to the allegations of abuse.
As with the other defendants, such inaction may have constituted negligence, but
does not shock the conscience.” Id. at 412.
 Ms. McCartney: “[T]he amended complaint’s allegations indicate Ms. McCartney
did respond to the issues in the Krajian home in various ways. Those responses
may have been inadequate and reflect negligence in responding to the information
she had, but they do not suggest action, or lack of action, which shocks the
conscience.” Id. at 409-10. She also made an effort to voice her concerns to
others in DHS. Id. at 409.
 Ms. Porter: “Rather than alleging that Ms. Porter failed to act, the amended
complaint shows that when Ms. Porter learned that the Krajians were not taking
the children to therapy, she worked to correct that mistake.” Id. at 408-09. She
also criticized her supervisee Ms. Busby’s sluggishness in this regard, calling it
“heinous & shocking.” Id. at 408. The court found no due process claim against
Ms. Porter. Id. at 408-09.
 Ms. Thompson: Ms. Thompson’s failure to help follow up on the November plan
to start making unannounced visits to the Krajian home may have been negligent,
but not conscience-shocking. Id. at 410.
 Mr. Williams: “[Mr. Williams’s] delay in removing E.J.H. from the home after
the second referral is troubling, and may indicate negligence on Mr. Williams’[s]
20
part in not moving more quickly. However, the allegations do not suggest present
behavior which goes beyond negligence and ‘shocks the conscience.’” Id.
at 411-12.
Additionally, the district court held that no § 1983 claims based on supervisory
liability were viable (as against defendants Caraway, Demers, Heath, Porter, Thompson,
or Williams) because the amended complaint alleged no basis that a supervisor
“create[d], promulgate[d], [or] implement[ed] . . . a policy” that violated the Hubbards’
constitutional rights. Id. at 413 (citing the standard in Dodds v. Richardson, 614 F.3d
1185, 1199 (10th Cir. 2010)).
b. State claims—negligence and wrongful death
The district court dismissed the state law claims against all Defendants—DHS and
its employees—due to the Hubbards’ failure to allege compliance with the Oklahoma
Governmental Tort Claims Act (“OGTCA”), which establishes certain procedural
prerequisites to bringing suit. See id. at 415-16. It stated that all tort claims, even if they
are derived from the Oklahoma Constitution, must comply with the OGTCA’s procedural
notice and claim requirements. Id. at 417-18.8
The Hubbards argued that their state claims did not need to adhere to the
OGTCA’s notice provisions because they alleged “willful and wanton” negligent conduct
8
The district court thus did not address whether there is a private right of action
(i.e., outside of the OGTCA framework) for a due process violation under the Oklahoma
Constitution. The court said that even if there were such a claim, the OGTCA’s
procedural rules would apply, which the Hubbards have not followed here. Id. at 417-18.
21
by individual defendants, which would put them outside the scope of their employment.
See id. at 415. The district court rejected this argument: “[The] amended complaint
alleges nothing which would suggest the individual DHS defendants were pursuing some
agenda of their own or otherwise acting outside the scope of their employment by DHS.
Conclusory allegations of ‘willful and wanton’ behavior do not change that fact.” Id.
c. Injunctive and declaratory relief
The district court denied the Hubbards’ request for injunctive or declaratory relief
because there was no basis for either “[i]n the absence of an underlying violation.” Id.
at 418.
* * * *
The Hubbards appealed the district court’s dismissal of the amended complaint
and the denial of injunctive and declaratory relief.
II. DISCUSSION
We start with comments about the amended complaint. It names DHS and 20
individuals as defendants, though only the individuals were sued under § 1983. As we
explain further below, the allegations against most of the individuals show no more than
minimal involvement in this matter, and their inclusion in the amended complaint along
with general references to DHS make it difficult to discern the conduct and knowledge of
other individual defendants. The allegations often merely allege that someone has
attended a meeting or received a referral and then has failed to act to protect the
children—allegations that plainly fail to state a claim under the most generous reading of
the amended complaint. The amended complaint attempts to list events that occurred in
22
chronological order, but it fails to clearly show how each individual defendant caused
particular injury to a specific child. These shortcomings in the amended complaint make
it a candidate for dismissal under Federal Rule of Civil Procedure 8(a)(2) for failure to
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief,” but they also inform our analysis of the ground on which the district court
dismissed the federal claims—failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).
Turning to our review of the district court’s ruling, we note that the amended
complaint alleged a systemic failure by DHS to serve and protect the children. The
federal substantive due process claims, however, do not seek relief from DHS, but from
each of 20 DHS employees who had varying degrees of involvement. Collectively and as
alleged, these employees mishandled the case and failed to protect the children from
harm. But we must decide whether the amended complaint adequately alleged a
substantive due process claim against any one of them.
Individually, many of the defendants had only limited participation. They should
not have been sued for a substantive due process violation. For those who participated
more actively and with more responsibility, the amended complaint alleged conduct that
was almost certainly negligent. But it did so in conclusory terms and did not allege the
level of conscience-shocking conduct, and in some instances the causation, that our cases
require for a substantive due process claim.
The individual defendants’ alleged actions, in the aggregate, may come closer to
the shocks the conscience standard than any individual defendant’s actions, but the
23
Hubbards’ § 1983 claims must stand or fall based on the conduct of each defendant
individually. Under § 1983, there is no respondeat superior or vicarious liability. See
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691-92 (1978);
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013).
As alleged in the amended complaint, DHS’s performance was deeply troubling,
and the conduct of several individual defendants was blameworthy. But the law
constrains us to affirm dismissal of the federal claims against the individuals because the
amended complaint fell short. We are mindful that § 1983 is not supposed to replace
state tort law, see Currier v. Doran, 242 F.3d 905, 920 (10th Cir. 2001), and remand for
the district court to determine whether to decline jurisdiction over the state claims.
A. Fourteenth Amendment Claims
Standard of Review
“We review a Rule 12(b)(6) dismissal de novo.” Nixon v. City & Cty. of Denver,
784 F.3d 1364, 1368 (10th Cir. 2015) (quotations omitted). In doing so, “[w]e accept all
the well-pleaded allegations of the complaint as true and . . . construe them in the light
most favorable to [the Hubbards].” Id. (quotations omitted). To withstand dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements”
24
are not sufficient to state a claim for relief. Id.; see also Hall v. Bellmon, 935 F.2d 1106,
1109-10 (10th Cir. 1991).
Legal Background
a. 42 U.S.C. § 1983Section 1983 provides that 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.” 42 U.S.C. § 1983.
State actors, such as the individual defendants, “may only be held liable under
§ 1983 for their own acts.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
A defendant-supervisor may be liable under § 1983, however, when that supervisor
“creates, promulgates, implements, or in some other way possesses responsibility for the
continued operation of a policy the enforcement . . . of which” violates a plaintiff’s
constitutional rights. Dodds, 614 F.3d at 1199. Supervisors cannot be liable under
§ 1983 where there is no underlying violation of a constitutional right by a supervisee.
See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).
b. Section 1983 substantive due process claims and private actors
The Due Process Clause of the Fourteenth Amendment provides, “No State
shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV § 1. “[N]othing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of its citizens against invasion
by private actors.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195
25
(1989). Accordingly, “[a]s a general matter, . . . a State’s failure to protect an individual
against private violence simply does not constitute a violation of the Due Process
Clause.” Id. at 197; see also Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995)
(“[S]tate actors are generally only liable under the Due Process Clause for their own acts
and not for private violence.”).
c. Exceptions
Courts have recognized two exceptions to DeShaney’s rule against substantive due
process claims based on harms committed by private actors—the special relationship and
danger creation exceptions.
i. Special relationship
State officials “can be held liable for harm done by third parties if the state has a
special relationship with the harmed individual,” that is, “when the state assumes control
over an individual sufficient to trigger an affirmative duty to provide protection to that
individual.” Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142-43 (10th
Cir. 2006) (quotations omitted). “[F]oster care is recognized as one of the custodial
relationships that creates a special relationship.” Schwartz v. Booker, 702 F.3d 573, 580
(10th Cir. 2012); see also Yvonne L. By & Through Lewis v. N.M. Dept. of Human Servs.,
959 F.2d 883, 892-93 (10th Cir. 1992). “This ‘special relationship triggers a continuing
duty’ that ‘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.’” Gutteridge v.
26
Oklahoma, 878 F.3d 1233, 1238-39 (10th Cir. 2018) (alterations in original) (quoting
Schwartz, 702 F.3d at 580).
To state a claim under the special-relationship doctrine, a plaintiff must
demonstrate that (1) the state official “kn[ew] of the asserted danger or failed to exercise
professional judgment”; (2) the conduct had “a causal connection to the ultimate injury
incurred”; and (3) the official’s conduct “shock[s] the conscience.” Schwartz, 702 F.3d
at 583. To show a state official failed to exercise professional judgment, a plaintiff must
show “more than mere negligence; the official must have abdicated her professional duty
sufficient to shock the conscience.” Id. at 585-86. Regardless of whether it is alleged
that an official knew of a danger or failed to exercise professional judgment with respect
to it, “a plaintiff must separately demonstrate the conscience-shocking nature of a
defendant’s conduct in order to mount a successful special-relationship claim.”
Gutteridge, 878 F.3d at 1241. We address that element further below.
ii. State-created danger
“[T]his court has recognized that, as an exception to DeShaney’s general rule, a
state official may be liable when ‘a state actor affirmatively acts to create, or increase[] a
plaintiff’s vulnerability to, danger from private violence.’” T.D. v. Patton, 868 F.3d
1209, 1221 (10th Cir. 2017) (alterations in original) (quoting Currier, 242 F.3d at 923).
To invoke the danger-creation theory, a plaintiff must make—at a minimum—“a
showing of affirmative conduct and private violence.” Estate of B.I.C. v. Gillen, 710
F.3d 1168, 1173 (10th Cir. 2013). Then the plaintiff can establish a claim by showing:
27
(1) [T]he charged state entity and the charged individual actors
created the danger or increased plaintiff’s vulnerability to the danger
in some way; (2) plaintiff was a member of a limited and specifically
definable group; (3) defendants’ conduct put plaintiff at substantial
risk of serious, immediate, and proximate harm; (4) the risk was
obvious or known; (5) defendants acted recklessly in conscious
disregard of that risk; and (6) such conduct, when viewed in total, is
conscience shocking.
Currier, 242 F.3d at 918.
“[I]f the danger to the plaintiff existed prior to the state’s intervention, then even if
the state put the plaintiff back in that same danger, the state would not be liable because it
could not have created a danger that already existed.” Armijo By & Through Chavez v.
Wagon Mound Pub. Sch., 159 F.3d 1253, 1263 (10th Cir. 1998). In assessing a custody
placement case based on danger-creation theory, we take into account a state employee’s
conduct only before legal custody was awarded. See Currier, 242 F.3d at 919.
d. “Shocks the conscience”
Under either the special-relationship or danger-creation exceptions to the
DeShaney rule, the plaintiff must show that the defendant’s conduct “shocks the
conscience.” “Conduct that shocks the judicial conscience . . . is deliberate government
action that is ‘arbitrary’ and ‘unrestrained by the established principles of private right
and distributive justice.’” Seegmiller v. Laverkin City, 528 F.3d 762, 767 (10th Cir.
2008) (quoting City of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)). “To show a
defendant’s conduct is conscience shocking, a plaintiff must prove a government actor
arbitrarily abused his authority or employ[ed] it as an instrument of oppression. The
behavior complained of must be egregious and outrageous.” Hernandez v. Ridley, 734
28
F.3d 1254, 1261 (10th Cir. 2013) (alteration in original) (quotations omitted). A
defendant’s “conduct as a whole”—including “both action and inaction”—are relevant in
evaluating whether it “shocks the conscience.” Estate of B.I.C., 710 F.3d at 1174. This
court considers the following principles when evaluating substantive due process claims
in this context: “(1) the general need for restraint; (2) the concern that § 1983 not replace
state tort law; and (3) the need for deference to local policy decisions impacting public
safety.” Currier, 242 F.3d at 920.
The precise boundaries of conscience-shocking behavior are elusive. In a previous
case, “[w]e declined to precisely define this level of conduct, but left it to evolve over
time. . . . We do know, however, that [it] requires a high level of outrageousness,
because the Supreme Court has specifically admonished that a substantive due process
violation requires more than an ordinary tort.” Armijo, 159 F.3d at 1262 (quotations
omitted).
“Conscience-shocking” is often defined by what it is not, or what it exceeds. See,
e.g., Lewis, 523 U.S. at 849 (“[L]iability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.”); Gutteridge, 878 F.3d at 1238-43
(“[A] social worker who simply makes a mistake of judgment under what are admittedly
complex and difficult conditions will not find herself liable in damages under § 1983.”
(quoting Schwartz, 702 F.3d at 583)); DeAnzona v. City & Cty. of Denver, 222 F.3d 1229,
1235 (10th Cir. 2000) (“Even knowingly permitting unreasonable risks to continue does
not necessarily rise to the level of conscience shocking.”); Tonkovich v. Kan. Bd. of
Regents, 159 F.3d 504, 528 (10th Cir. 1998) (“[A] plaintiff must do more than show that
29
the government actor intentionally or recklessly caused injury to the plaintiff by abusing
or misusing government power.” (quotations omitted)).
Analysis
As noted earlier, the allegations against the DHS employees, considered
collectively, are deeply troubling. And the allegations against some of the individual
defendants are also concerning. The amended complaint, however, while it may have
alleged sufficient facts for tort claims against some defendants, did not meet the highly
demanding standard for substantive due process.
We therefore affirm the district court’s dismissal of the § 1983 substantive due
process claims under Rule 12(b)(6). We begin with the general rule that state actors are
not liable for private violence and then consider whether an exception to that rule applies.
Assessing claims against both the pre- and during-foster-care defendants, we conclude no
claim has been stated under either the special-relationship or danger-creation exceptions.
a. Pre-foster-care defendants
Two time periods are relevant to the Hubbards’ pre-foster-care claims. The first
period is the time the children lived with their biological parents leading up to February
2013, when the Tulsa Police directed their removal from the home. The second period
was May to August 2013, when the children were reunited with the biological parents.
i. Special relationship
The special relationship exception applies when a child is placed in foster care.
Schwartz, 702 F.3d 573 at 580. It does not apply when the children are in the custody of
their biological parents. Yvonne L., 959 F.2d at 891 (“[T]here is no affirmative duty of
30
the state to protect a child who is in his parents’ custody.” (citing DeShaney, 489 U.S. at
201)). Accordingly, the Hubbards do not a state a claim for relief under this theory.
ii. State-created danger
Nor does the amended complaint allege a claim against the pre-foster-care
defendants under a state-created danger theory.
First, the Hubbards have not pled sufficient facts to show that the state created the
danger of private violence to the children. “[I]f the danger to the plaintiff existed prior to
the state’s intervention, then even if the state put the plaintiff back in that same danger,
the state would not be liable because it could not have created a danger that already
existed.” Armijo, 159 F.3d at 1263. Even if the pre-foster-care defendants put the
children in danger by restoring them to their biological parents’ home, they did not create
the danger.
Second, the Hubbards have not pled sufficient facts to show that the pre-foster-
care defendants increased the danger of private violence to the children. T.D., 868 F.3d
at 1221 (state actors may be liable when they “affirmatively act[] to create, or increase[] a
plaintiff’s vulnerability to, danger from private violence” (second alteration in original)
(quotations omitted)). The amended complaint fails to allege that the living conditions
worsened for the children following reunification with their biological parents.9
9
State-created danger claims can apply to placement with a biological parent as
well as a foster parent. See Currier, 242 F.3d at 919 (“When the state affirmatively acts
to remove a child from the custody of one parent and then places the child with another
parent, DeShaney does not foreclose constitutional liability.”).
31
b. During-foster-care defendants
i. Special relationship
Both parties acknowledge that foster care establishes a “special relationship” for
§ 1983 purposes. Nonetheless, as the district court concluded, the amended complaint’s
allegations against the during-foster-care defendants did not state a claim because they
did not satisfy the demanding “shocks the conscience” standard. The amended complaint
also was lacking as to certain defendants on the causation element. We address the
allegations about Ms. Busby, Mr. Eason, Ms. McCartney, and Mr. Williams before
turning to the remaining defendants.
1) Ms. Busby
The Hubbards cite an unpublished district court case, Tazioly v. City of
Philadelphia, No. CIV.A.97-CV-1219, 1998 WL 633747 (E.D. Pa. Sept. 10, 1998), to
argue that a state can increase danger of private violence to a child by placing the child
with a biological parent. See Aplt. Br. at 38. This case is not binding and is readily
distinguishable. In Tazioly, the child was born addicted to cocaine. Tazioly, 1998 WL
633747, at *3. At birth, the child was taken from his mother (who herself remained
addicted to cocaine) and placed with another caretaker. Id. at *3-*4. The mother
appeared “hostile, abusive, . . . paranoid” and “bizarre” to social workers. Id. at *3.
During one visit with the child, she held him out of a second story window and
threatened to drop him. Id. at *4. Internal DHS notes showed strong doubt about placing
the boy with his mother, noting “no psychological evaluation,” “no risk assessment,” “no
drug testing,” and “why return home?” Id. at *5. But Defendants nonetheless placed the
child with his mother. Once in her custody, he experienced severe abuse. He suffered
skull and leg fractures, was beaten while in a full-body cast, and was burned with
cigarettes tied naked in a chair. Id. at *5-*6.
The child in Tazioly experienced an immediate increase of vulnerability to private
danger when placed with his biological mother (with whom he had never previously
lived). DHS had significant pre-placement warning signs of the mother’s behavior. The
Hubbards’ allegations regarding the children’s reunification with their biological parents
fall far short of the level in Tazioly.
32
The allegations about Ms. Busby covered mid-June 2013, when she “took over the
case,” to October 28, 2013. Aplt. App., Vol. II at 285 ¶ 17-290 ¶ 27. The amended
complaint said nothing about Ms. Busby after that date, or how she had anything to do
with A.P.’ s injuries in February or August 2014. Although Ms. Busby may have been
the lead caseworker from June to October 2013, the allegations identified seven other
DHS employees and supervisors by name who also were involved during this time. The
amended complaint also referred generally to “DHS workers,” e.g., id. at 287 ¶ 22,
making it clear that multiple DHS employees, not just Ms. Busby, were working on the
case.
The Hubbards repeatedly alleged that DHS employees “took no action to protect
or safeguard the [c]hildren.” See, e.g., id. at 289 ¶ 26. But these conclusory allegations
conflict with actions that were taken. According to the amended complaint, after the first
report of sexual activity between the children in September 2013, DHS, with Ms. Busby
as the lead case worker, arranged for therapeutic intervention. Id. at 287 ¶¶ 22-23. After
the second report of sexual activity in October, Ms. McCartney responded to the referral
and interviewed the children, id. at 288 ¶ 25, and Mr. Williams “placed services in the
home to address E.J.H.’s behaviors” and initiated steps to “mov[e] E.J.H. out of the home
to safeguard C.E.H. and [A.P.],” id. at 289 ¶ 26.
The allegations about Ms. Busby must be considered in light of what her DHS
co-workers were doing on the case. For example, even though the Hubbards alleged that
Ms. Busby visited the foster home only once between August and October, id. at 290
¶ 27, the amended complaint also alleged that Ms. McCartney visited the home in
33
October, showing that at least more than one person made home visits. Id. at 288 ¶ 25.
After DHS arranged for therapy sessions to address the reports of sexual activity, the
children attended some of the therapy sessions, but the Krajians did not take them to six
sessions. Although the amended complaint alleged that Ms. Busby failed to take steps to
ensure better attendance, and that her supervisor, Ms. Porter, called this lack of attention
“heinous & shocking,” id. at 288 ¶ 23, it did not allege facts showing conscious disregard
of risk. It also did not allege that Ms. Busby was responsible for any delay in removing
E.J.H. from the foster home. When the allegations about Ms. Busby are “viewed in
total,” Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008), they do not meet the
demanding shocks the conscience standard for a substantive due process claim.10
These allegations are nonetheless troubling, showing that Ms. Busby was
negligent in her handling of the children’s case. But, as the district court concluded,
based on the high bar that substantive due process case law sets for conscience-shocking
conduct and Ms. Busby’s awareness of what other DHS workers were doing on the case,
her alleged acts and omissions do not state a claim under 42 U.S.C. § 1983. Under our
precedent, “Even knowingly permitting unreasonable risks to continue does not
necessarily rise to the level of conscience shocking.” DeAnzona, 222 F.3d at 1235.
10
Because the “special relationship” exception applies only to post-foster-care
conduct, we consider the allegations against Ms. Busby after the children’s placement
with the Krajians. The knowledge Ms. Busby acquired about the children before the
foster placement may still be relevant to the analysis to the extent it informed her conduct
regarding the children once they were living with the Krajians.
34
“State officials will only be held liable for violating a foster child’s Fourteenth
Amendment substantive due process rights if the 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 585 (alterations in original) (quotations omitted). Furthermore, “a plaintiff must
separately demonstrate the conscience-shocking nature of a defendant’s conduct in order
to mount a successful special-relationship claim.” Gutteridge, 878 F.3d at 1241.
Ms. Busby allegedly knew about the children’s sexual conduct, but she also knew
that DHS had recognized the need to take action and had arranged for therapy sessions.
Her alleged failure to ensure that the children attended more therapy sessions was poor
job performance, but the Hubbards have not sufficiently pled conduct that shocks the
conscience.
Ms. Busby did not, according to the amended complaint, know about the Krajians’
physically abusing the children during August to October 2013, other than reports of
spanking. See Aplt. App., Vol. II at 288. The information available to her then would
not have put her on notice of the risk of violence culminating in A.P.’s death many
months later. The Hubbards have not sufficiently pled that (1) Ms. Busby knew of
physical abuse or abdicated her professional duty with respect to the risk of physical
35
abuse; (2) her conduct caused the resulting harm (A.P.’s and C.E.H.’s injuries); or (3) her
conduct shocked the conscience.11
2) Mr. Eason and Ms. McCartney
According to the amended complaint, Mr. Eason interviewed the children in
September 2013 and Ms. McCartney interviewed them in October 2013 about their
sexual activity. Id. at 287 ¶ 23-288 ¶ 25. Ms. McCartney also witnessed evidence of
marijuana use in the foster home in October and learned that the Krajians were spanking
E.J.H. and making him sleep on the floor. Id. at 288 ¶ 25. About two weeks later, she
told at least four of her DHS colleagues that the foster parents were “not equipped to
handle the level of care that the children need at this time.” Id. at 290 ¶ 28. These
allegations provide only minimal information about these defendants and fail to describe
their roles in the case. The Hubbards do not plead that either Mr. Eason or Ms.
McCartney specifically knew of risks of physical abuse from the Krajians other than
reports of spanking.
As with Ms. Busby, the allegations about Mr. Eason and Ms. McCartney should
not be viewed in a vacuum. The DHS team was gathering information, arranging for
therapy sessions, providing home service, and planning for E.J.H.’s eventual removal
11
Even if we consider Ms. Busby’s pre-foster-placement conduct—infrequent
home visits, inattention to the living conditions, and her flippant response to the
biological parents’ arrest—this conduct is likely negligent but does not shock the
conscience.
36
from the foster home. As the district court concluded, even if the amended complaint
alleged negligent conduct against these defendants, it did not adequately allege a
substantive due process violation. With respect to sexual activity, the complaint did not
sufficiently show causation or conscience-shocking conduct as to these defendants. As to
physical abuse, the complaint did not sufficiently show knowledge, failure to exercise
professional judgment, or conscience-shocking conduct.12
3) Mr. Williams
The amended complaint alleged that Mr. Williams was at least partially
responsible for initiating E.J.H.’s removal from the foster home to receive therapy
regarding his sexual activity with his sister. Although this took about four months to
accomplish, when Ms. Caraway asked him about the situation in October 2013, he
expressed “some concerns for the home” and said he “had placed services in the home to
address” the boy’s behaviors. Id. at 289 ¶ 26. Also, he said that once he learned of a
babysitter’s reporting of continued sexual activity between the children, he “began work
towards moving the child from the home.” Id.
The Hubbards’ allegations do not state a substantive due process claim under
42 U.S.C. § 1983. Although Mr. Williams allegedly had knowledge of the sexual
activity, the Hubbards have not sufficiently pled causation and conscience-shocking
conduct. The amended complaint states that Mr. Williams “place[d] services in the
12
Ms. McCartney is mentioned only one more time in the amended complaint. It
alleged that she was notified on August 27, 2014, that A.P. had been hospitalized with
bone fractures and that she had interviewed C.E.H. and Ms. Krajian’s sister shortly after
A.P.’s death. Aplt. App., Vol. II at 291 ¶ 33-292 ¶ 34.
37
home” and “work[ed] towards moving the child from the home” upon learning of the
September and October referrals. Id. Although the removal of E.J.H. took four months,
the Hubbards have not sufficiently pled an affirmative link between this delay and Mr.
Williams’s conduct, nor have they pled facts showing that any delay caused sexual abuse.
Considering the allegations about Mr. Williams in the context of what various DHS
employees were doing contemporaneously on this case, we find the amended complaint
does not sufficiently allege “conscience-shocking” behavior. See Gutteridge, 878 F.3d at
1241. As to the Krajians physical abuse of the children, the amended complaint did not
sufficiently plead that Mr. Williams had knowledge of or failed to exercise professional
judgment regarding that risk. For example, the last reference to Mr. Williams in the
amended complaint was November 4, 2013, Aplt. App., Vol. II at 290 ¶ 28, months
before the injuries to A.P.
4) Other defendants
We agree with the district court that the allegations against other during-foster-
care defendants are insufficient to state a claim. As to many of these defendants, the
amended complaint alleged nothing more than their attendance at a meeting. Their
alleged inaction tells us very little. Absent allegations that they were responsible for a
broader policy that harmed the children, the amended complaint’s vague claims against
supervisors do not state a claim. See Dodds, 614 F.3d at 1199. And some defendants,
such as Mr. Dugger and Mr. Johnson, seemingly had nothing to do with what happened
based on the amended complaint’s allegations. They were DHS employees who received
38
a referral once A.P. had already been fatally injured. See Aplt. App., Vol. II at 292 ¶ 34.
No further harm to the children is pled after that referral.
ii. State-created danger
The during-foster-care § 1983 substantive due process claims based on a state-
created danger theory fail to state a claim. In assessing a custody placement case based
on a danger-creation theory, we consider only a state employee’s conduct before legal
custody was awarded. Currier, 242 F.3d at 919. The Hubbards have not pled sufficient
facts to show why any defendant would have been on notice that the children would be at
risk of danger from living with the Krajians. The amended complaint therefore lacks
allegations that any defendant exhibited “affirmative conduct” that created danger for the
children. Estate of B.I.C., 710 F.3d at 1173 (to invoke the danger-creation theory, a
plaintiff must make—at a minimum—“a showing of affirmative conduct and private
violence”).
B. State Claims (Negligence and Wrongful Death)
The Hubbards, in addition to their federal claims under § 1983, alleged state law
claims for negligence and wrongful death and for a violation of the Oklahoma
Constitution. Although their amended complaint does not state a jurisdictional basis for
their state claims, they need to rely on the federal supplemental jurisdiction statute,
28 U.S.C. § 1367. After the district court dismissed the Hubbards’ federal claims, it
considered their state claims, dismissing them largely for failure to comply with the
notice and claim procedures in the OGTCA. We question whether the court should have
continued to exercise jurisdiction over those claims.
39
We have held that supplemental jurisdiction over state claims “is exercised on a
discretionary basis” and that “[i]f federal claims are dismissed before trial, leaving only
issues of state law, ‘the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.’” Bauchman v. West High Sch., 132 F.3d 542, 549
(10th Cir.1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988), and
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)); see Wright & Miller, Federal
Practice & Procedure § 3567.3 (3d ed. 2018) (“As a general matter, a court will decline
supplemental jurisdiction if the underlying [federal] claims are dismissed before trial.”).
We generally decline to exercise supplemental jurisdiction when no federal claims
remain because “[n]otions of comity and federalism demand that a state court try its own
lawsuits, absent compelling reasons to the contrary.” Brooks v. Gaenzle, 614 F.3d 1213,
1229-30 (10th Cir. 2010) (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995)).
When, as here, a district court dismisses all federal claims, it would normally
dismiss the state claims without prejudice so that the plaintiff could pursue them in state
court. See Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th
Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.”). This is
especially so when, as here, the claims present potentially unsettled questions of state
law. See, e.g., Wentzka v. Gellman, 991 F.2d 423, 425 (7th Cir. 1993) (retention of
jurisdiction over case held improper where state law was unsettled); Parker & Parsley
Petroleum Co. v. Dresser Indus., 972 F.2d 580, 589 (5th Cir. 1992) (“[T]he interests of
federalism and comity point strongly toward dismissal. All of the remaining legal issues
40
of the case . . . are of state law, and . . . they are difficult ones.”). In Patel v. Hall, 849
F.3d 970, 987-88 (10th Cir. 2017), we said, “On remand, the district court should first
reconsider whether it should decline to exercise pendent jurisdiction over the state law
claims and instead dismiss them without prejudice in light of the limited nature of the
sole remaining federal claim in this action and the arguable existence of some unsettled
questions of state law.”
The district court, after dismissing the Hubbards’ federal claims, addressed their
state claims, including whether the Hubbards’ failure to comply with the procedural
requirements of the OGTCA should preclude them from proceeding on all of their state
law claims. That question is challenging due to undeveloped state court precedent, the
Hubbards’ allegations of willful and wanton conduct, their naming both the DHS and the
individuals as defendants, and their attempt to assert a state constitutional claim. The
district court did not explain why it chose to address the state claims. Nor did it analyze,
in light of comity and federalism concerns, whether continued supplemental jurisdiction
was appropriate after dismissal of the federal claims.13
13
Discretionary factors to exercise supplemental jurisdiction are listed in 28
U.S.C. § 1367(c):
The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a) if —
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
41
Without the benefit of explanation or analysis to assess the district court’s
discretionary exercise of supplemental jurisdiction under § 1367, and having affirmed the
dismissal of the Hubbards’ federal claims, we reverse the dismissal with prejudice of the
state law claims and remand to the district court. See Patel, 849 F.3d at 987-88
(remanding for reconsideration of supplemental jurisdiction). The court should address
whether to decline supplemental jurisdiction over the state law claims and dismiss them
without prejudice. This would allow the state courts to address the viability of the
Hubbards’ state tort claims under the OGTCA should they choose to continue to pursue
them there. See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221,
1237 (10th Cir. 1997) (“The Supreme Court has instructed us that federal courts should
consider the propriety of exercising supplemental jurisdiction ‘in each case, and at every
stage of the litigation.’” (quoting Carnegie-Mellon Univ., 484 U.S. at 350)).14
III. CONCLUSION
Our opinion should not be read to condone or approve of the Defendants’ conduct
as alleged in the amended complaint—just the opposite—especially DHS. Under the
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
14
In VR Acquisitions, LLC v. Wasatch County, 853 F.3d 1142 (10th Cir. 2017),
this court recently held “that the district court should have simply declined to exercise
supplemental jurisdiction over [the plaintiff’s] state-law claims after it dismissed [the
plaintiff’s] federal claims.” Id. at 1149. We thus “reverse[d] the district court’s order
dismissing [plaintiff’s] state-law claims with prejudice and remand[ed] with instructions
to dismiss those claims without prejudice.” Id. at 1150.
42
amended complaint, DHS failed to protect these children, and the results were tragic. But
DHS is not a defendant under the § 1983 substantive due process claim, and the
Hubbards’ amended complaint does not meet the exacting standard for pleading
conscience-shocking behavior, and in some instances causation, on the part of individual
defendants standing on their own. Accordingly, we affirm the district court’s dismissal
of the Hubbards’ federal claims. We remand for the district court to decide whether it
should decline supplemental jurisdiction on the remaining state law claims.15
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
15
Because we agree with the district court and hold that the Hubbards have not
sufficiently stated a claim showing an underlying § 1983 violation, any associated request
for injunctive or declaratory relief based on the § 1983 allegations is accordingly denied.
43