W. H. v. Olympia School District ( 2018 )


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  •                                NOT FOR PUBLICATION                       FILED
    UNITED STATES COURT OF APPEALS                       SEP 26 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    W. H., individually; et al.,                    No.    17-35691
    Plaintiffs-Appellees,          D.C. No. 3:16-cv-05273-BHS
    v.
    MEMORANDUM*
    OLYMPIA SCHOOL DISTRICT, a public
    corporation; et al.,
    Defendants-Appellants.
    Appeal from the United States District Court
    for the Western District of Washington
    Benjamin H. Settle, District Judge, Presiding
    Argued and Submitted August 30, 2018
    Seattle, Washington
    Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.
    Barbara Greer, William Lahmann, Jennifer Priddy, and Frederick Stanley
    appeal the denial of summary judgment with respect to their claims of qualified
    immunity. Although a denial of summary judgment is generally not appealable,
    limited interlocutory review is permitted to determine whether the facts, taken in
    the light most favorable to the non-moving party, “show a violation of clearly
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    established law.” Robinson v. Prunty, 
    249 F.3d 862
    , 866 (9th Cir. 2001) (quoting
    Johnson v. Jones, 
    515 U.S. 304
    , 311 (1995)) (internal quotation marks omitted).
    We review de novo the denial of qualified immunity. Johnson v. Bay Area Rapid
    Transit Dist., 
    724 F.3d 1159
    , 1168 (9th Cir. 2013). Because the parties are
    familiar with the facts, we do not repeat them here. We have jurisdiction under
    28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further
    proceedings.
    Gary Shafer, a bus driver with the Olympia School District (“District”),
    sexually abused dozens of young students, including P.H. and S.A., while driving
    on his routes and while riding along with other drivers. Stanley and Greer
    managed the District bus department during this time, received reports from
    concerned parents regarding inappropriate conduct by Shafer, and were alleged to
    have been aware of and acquiesced in Shafer’s violations of District policies. In
    2011, Shafer was arrested and confessed to many details of his abuse spanning
    several years.
    The parents of P.H. and S.A., individually and on behalf of their children,
    filed suit against the District and individual defendants, who moved for summary
    judgment on the grounds they were entitled to qualified immunity. To determine
    whether a defendant is entitled to qualified immunity, we ask whether “[t]aken in
    the light most favorable to the party asserting the injury, [ ] the facts alleged show
    2
    the officer’s conduct violated a constitutional right,” and whether that right was
    “clearly established” at the time of the alleged violation. Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001), receded from on other grounds by Pearson v. Callahan, 
    555 U.S. 223
    , 236 (2009). To be “clearly established,” the “contours of the right must be
    sufficiently clear that a reasonable official would understand that what he is doing
    violates that right.” Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987).
    The constitutional right of a child to be free from sexual abuse was clearly
    established prior to Shafer’s employment with the District. Plumeau v. Sch. Dist.
    No. 40 Cty. of Yamhill, 
    130 F.3d 432
    , 438 (9th Cir. 1997) (“[T]he Constitution
    protects a child’s right to be free from sexual abuse by school employees while
    attending public school.”). However, none of the individual defendants directly
    participated in the abuse of P.H. or S.A., so the question is whether they can be
    liable in their supervisory capacity. “A defendant may be held liable as a
    supervisor under § 1983 if there exists . . . a sufficient causal connection between
    the supervisor’s wrongful conduct and the constitutional violation.” Henry A. v.
    Willden, 
    678 F.3d 991
    , 1003-04 (9th Cir. 2012) (quoting Starr v. Baca, 
    652 F.3d 1202
    , 1207 (9th Cir. 2011)). Supervisory liability stems from “culpable action or
    inaction in the training, supervision or control of [ ] subordinates, . . . acquiescence
    in the constitutional deprivations of which the complaint is made, or for conduct
    that showed a reckless or callous indifference to the rights of others.” Preschooler
    3
    II v. Clark Cty. Sch. Bd. of Trs., 
    479 F.3d 1175
    , 1183 (9th Cir. 2007) (quoting
    Menotti v. City of Seattle, 
    409 F.3d 1113
    , 1149 (9th Cir. 2005)).
    In light of the totality of information available to Stanley and Greer, a jury
    could reasonably conclude that their failure to investigate, supervise, or intervene
    indicated “acquiescence or culpable indifference” that would trigger liability.
    
    Menotti, 409 F.3d at 1149
    . The district court correctly held that they are not
    entitled to qualified immunity and denied summary judgment because there were
    triable issues as to whether they sustained a policy, practice, or custom of
    deliberate indifference toward repeated sexual abuse that was a “moving force”
    behind the injuries of P.H. and S.A.
    A different conclusion is warranted as to Lahmann and Priddy. Lacking any
    knowledge, either real or constructive, of Shafer’s misconduct until after his arrest,
    which post-dates the abuse, Lahmann and Priddy could not have acquiesced or
    been recklessly indifferent to his abuse. See 
    Menotti, 409 F.3d at 1149
    . There is
    no “causal connection” between any of their actions (or failures to act) and the
    abuse suffered by P.H. and S.A. Henry 
    A., 678 F.3d at 1003
    . Lahmann and Priddy
    are entitled to qualified immunity, and the district court erred in concluding
    otherwise.1
    1
    The district court correctly held that all individual defendants were entitled
    to qualified immunity as to an alternate theory of liability, i.e., that the failure to
    timely disclose the reported abuse to P.H.’s and S.A.’s families delayed their
    4
    AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
    Each party shall bear its own costs on appeal.
    psychiatric treatment and prevented their parents from exercising their parental
    rights to seek such medical attention for their children. As the district court noted,
    there is no authority suggesting students have “a clearly established right . . . to
    have school officials report [ ] abuse . . . in order to put them on notice of the
    potential need for psychiatric treatment.” Likewise, “we are aware of no case with
    even loosely analogous facts that might suggest that officials investigating
    allegations of child abuse have a constitutional duty to inform the alleged victim’s
    parents.” James v. Rowlands, 
    606 F.3d 646
    , 652 (9th Cir. 2010). Because the
    rights underlying this theory of liability are not “clearly established,” qualified
    immunity bars any such claim.
    5