                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



AMBER WRIGHT,                                    No. 10-35690

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05126-RJB

  v.
                                                 MEMORANDUM *
STATE OF WASHINGTON; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert J. Bryan, Senior District Judge, Presiding

                      Argued and Submitted October 14, 2011
                               Seattle, Washington

Before: BEEZER and PAEZ, Circuit Judges, and COLLINS, District Judge.**

       Plaintiff-Appellant Amber Wright (“Wright”) appeals the district court’s

grant of summary judgment to Defendants-Appellees State of Washington,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.
Department of Social and Health Services and Bruce Morrison (“the state

defendants”) on her 42 U.S.C. § 1983 substantive due process claim. We affirm.

       In determining whether a state actor is entitled to qualified immunity, we

must consider whether the plaintiff has alleged facts showing that the state actor

violated a statutory or constitutional right, and, if so, whether that right was clearly

established at the time of the alleged violation. Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080 (2011). Here, the district court correctly determined that Wright’s

claim failed at the first step of the analysis.

       Contrary to Wright’s arguments, her case is not materially distinguishable

from DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189

(1989). Thus, the district court properly concluded that there is no basis for

departing from the rule that the Due Process Clause generally does not protect

individuals from violence by private actors. Id. at 197.

       As in DeShaney, the State did not affirmatively place Wright in a position of

danger that she would not have otherwise faced absent state intervention. 489 U.S.

at 201; Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). There

is no evidence that Wright was abused while she was in her paternal grandmother’s

care. And, although Wright was sexually and physically abused when she was

returned to her father, the state defendants played no part in creating any such


                                             2
danger nor did they do anything to render her more vulnerable to it. DeShaney,

489 U.S. at 201. In fact, when the State closed its investigation, Wright was in her

paternal grandmother’s – not her father’s – care. The “state-created danger”

exception is therefore inapplicable.

      Although it is questionable whether Wright was under the State’s custody

and control while she lived with her paternal grandmother, we need not decide that

issue here. Irrespective of whether she was in State custody while residing with

her paternal grandmother, Wright was not subjected to any harm during the

pendency of the State’s investigation. Id. at 198-99; see also Patel v. Kent Sch.

Dist., 648 F.3d 965, 972 (9th Cir. 2011). When the State subsequently closed its

investigation, it owed her no duty of protection against the abuse inflicted by her

father. Under these circumstances, the “special relationship” exception is likewise

not applicable.

      Because the undisputed facts show that the state defendants did not violate

Wright’s substantive due process rights, the district court properly granted

summary judgment in their favor.

      AFFIRMED.




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