                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       April 23, 2008
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                  TENTH CIRCUIT                        Clerk of Court



 RAYMOND LANCE BRIGGS,
 Individually, and as Personal
 Representative of the Estate of Kelsey
 Shelton Smith-Briggs, Deceased,

                Plaintiff-Appellee,                      No. 07-6037
          v.                                           (W.D. Oklahoma)
 KRISTAL JOHNSON, in her                           (D.C. No. 06-CV-677-M)
 individual capacity; YOLANDA
 HUNTER, in her individual capacity;
 DAVID BURGESS, in his individual
 capacity,

                Defendants-Appellants,

          and

 CARLA LYNCH, in her individual
 capacity; JEAN BONNER, in her
 individual capacity; EASTERN
 OKLAHOMA YOUTH SERVICES,
 INC., an Oklahoma corporation,

                Defendants.


                              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        This order and judgment is not binding precedent except under the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 MURPHY, BALDOCK, and McCONNELL, Circuit Judges.



I.    Introduction

      Plaintiff-Appellee, Raymond Lance Briggs, is the Personal Representative

of the estate of his daughter, Kelsey Shelton Smith-Briggs (“Kelsey”). Kelsey

died on October 11, 2005, while in the physical custody of her mother. At the

time of Kelsey’s death, she was in the legal custody of the Oklahoma Department

of Human Services (“DHS”). Defendants-Appellants, Kristal Johnson, Yolanda

Hunter, and David Burgess (collectively “Defendants”) are employed by DHS.

Briggs filed claims against Defendants pursuant to 42 U.S.C. § 1983 alleging,

inter alia, they violated Kelsey’s Fourteenth Amendment substantive due process

rights by failing to adequately investigate allegations of abuse, discouraging the

reporting of additional incidents of abuse, and otherwise failing to protect Kelsey.

      Defendants argued Briggs’s complaint failed to state a claim against them

in their individual capacities and they moved to have the claims dismissed. The

district court granted the motion in part and denied it in part. It concluded Briggs

sufficiently alleged a violation of Kelsey’s right to substantive due process under

the danger creation theory based on his allegation Defendants discouraged the

reporting of additional incidents of abuse. See Currier v. Doran, 242 F.3d 905,

921-22 (10th Cir. 2001). The court also ruled that Defendants were not entitled to

qualified immunity because the right asserted was clearly established under

                                         -2-
DeShaney and its progeny. DeShaney v. Winnebago County Dep’t of Social

Servs., 489 U.S. 189 (1989).

      Defendants brought this interlocutory appeal challenging the district court’s

denial of the motion to dismiss. Because the district court correctly concluded

Defendants failed to show they are entitled to qualified immunity based on

Briggs’s allegation that they discouraged the reporting of abuse, we affirm the

denial of Defendants’ motion.

II.   Factual Background

      The facts relevant to this appeal are taken from Briggs’s Second Amended

Complaint and are presented in the light most favorable to him. Sutton v. Utah

State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). In

January 2005, DHS received a referral for an investigation of child abuse

allegedly perpetrated upon Kelsey by her mother, Raye Dawn Smith. DHS

investigated the referral and confirmed that Kelsey’s injuries, which included

bruises and a broken clavicle, were non-accidental and the result of abuse.

Kelsey was removed from her mother’s custody and placed in the custody of

DHS. After an emergency guardianship proceeding, the state court appointed

Kelsey’s paternal grandmother to act as Kelsey’s guardian.

      In February 2005, a deprivation petition was filed by the Lincoln County

District Attorney. The petition accused Smith of either abusing Kelsey or failing

to protect her. The state court ordered Smith to obtain parenting services and

                                        -3-
approved a visitation schedule permitting unsupervised visits between Kelsey and

Smith. From January 17, 2005, to March 16, 2005, Smith did not have

unsupervised visitation rights and Kelsey did not suffer any injuries during that

period. One week after the unsupervised visits began, however, Kelsey suffered

additional abuse. In March 2005 and April 2005 Kelsey suffered bruising on her

legs and face, leg contusions, a closed head injury, and fractures of both tibias.

Thereafter, Kelsey continued to sustain injuries while in Smith’s care and her

health declined. On October 11, 2005, Kelsey died while in the physical custody

of Smith and Smith’s husband, Michael Porter.

      Acting individually and as personal representative of Kelsey’s estate,

Briggs filed an action in the District Court of Oklahoma County, Oklahoma,

alleging state and federal claims against Defendants in their individual

capacities. 1 After Defendants removed the action to federal court, Briggs filed a

Second Amended Complaint asserting seven claims for relief. Only two of the

claims involved Defendants: a Fourteenth Amendment substantive due process

claim brought pursuant to 42 U.S.C. § 1983 and a claim for punitive damages.

      Defendants moved to dismiss the claims asserted against them. The district

court granted the motion with respect to Briggs’s allegations that Defendants: (1)


      1
       Briggs also asserted claims against Jean Bonner; Carla Lynch; Youth and
Family Resource Center, Inc.; Eastern Oklahoma Youth Services, Inc.; DHS; and
Howard Hendrick in his official capacity as DHS Director. Those claims are not
relevant to this appeal.

                                          -4-
failed to adequately investigate Smith’s background, (2) failed to properly

investigate reports of suspected abuse, (3) failed to investigate other sources of

information about Kelsey, (4) failed to cooperate with other entities and

individuals involved with Kelsey, (5) failed to fully inform the Oklahoma state

court about all issues material to Kelsey’s abuse, and (6) failed to protect Kelsey.

Briggs v. Oklahoma ex rel. Dep’t of Human Servs., 472 F. Supp. 2d 1304, 1314

(W.D. Okla. 2007). Specifically, the court concluded Briggs could not

demonstrate that Defendants’ alleged actions either created or enhanced the

danger posed by Smith or rendered Kelsey more vulnerable to abuse. Id.; see also

Currier, 242 F.3d at 919 (stating the “danger creation theory . . . focuses on the

affirmative actions of the state in placing the plaintiff in harm’s way”). The

district court, however, denied the motion with respect to Briggs’s allegations,

predicated on the danger creation theory, that Defendants discouraged the

reporting of additional abuse against Kelsey. Briggs, 472 F. Supp. 2d at 1314-15.

The court then concluded Defendants were not entitled to qualified immunity on

this claim because the constitutional right Briggs asserted was clearly established.

Id. at 1315. It is from this ruling that Defendants appeal. See Anderson v. Blake,

469 F.3d 910, 913 (10th Cir. 2006) (“An order denying qualified immunity that

raises purely legal issues is immediately appealable.”).




                                         -5-
III.   Discussion

       This court conducts a de novo review of the denial of a motion to dismiss

based on qualified immunity. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341

F.3d 1197, 1199 (10th Cir. 2003). The sole question before us is whether

Defendants are entitled to qualified immunity on Briggs’s claim that they

discouraged the reporting of abuse against Kelsey. When reviewing this legal

question, we accept all well-pleaded factual allegations in the complaint as true

and view them in the light most favorable to the nonmoving party. Id.

       The purpose of the qualified immunity doctrine is to shield “government

officials performing discretional functions . . . from liability for civil damages

insofar as their conduct [did] not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Wyatt v.

Cole, 504 U.S. 158, 166 (1992) (quotation omitted). Once a defendant has

asserted the qualified immunity defense to a substantive due process claim, the

burden shifts to the plaintiff to establish the defendant’s conduct violated (1) a

constitutional right (2) that was clearly established. Saucier v. Katz, 533 U.S.

194, 201-02 (2001). In his complaint, Briggs alleged Defendants violated

Kelsey’s substantive due process rights by discouraging the reporting of

additional abuse against Kelsey. Defendants argue Briggs has not alleged facts

sufficient to make out a substantive due process claim. To be sufficient, Briggs’s

complaint must contain enough factual allegations “to state a claim to relief that

                                         -6-
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007); see also Robbins v. Oklahoma, No. 07-7021, 2008 WL 747132, *4 (10th

Cir. March 21, 2008) (concluding a complaint alleging substantive due process

claims against multiple defendants must “make clear exactly who is alleged to

have done what to whom, to provide each individual with fair notice as to the

basis of the claims against him or her” (alterations omitted)). Briggs argues his

allegations are sufficient under the danger creation theory.

      As a general rule, state actors have no constitutional due process obligation

to protect an individual from the violent acts of third parties. DeShaney, 489 U.S.

at 196 (stating the purpose of the Due Process Clause of the Fourteenth

Amendment is “to protect the people from the State, not to ensure that the State

protect[s] them from each other”). This court, however, has recognized a “danger

creation” exception to this general rule. 2 Seamons v. Snow, 84 F.3d 1226, 1236

(10th Cir. 1996) (“[S]tate officials can be liable for the acts of third parties where

those officials ‘created the danger’ that caused the harm.”). To state a claim

under the danger creation exception, Briggs must plead facts that show: (1)

Defendants created the danger or increased Kelsey’s vulnerability to the danger in

some way; (2) Kelsey was a member of a limited and specifically definable group;


      2
       A second exception, the special relationship doctrine, is not implicated in
this appeal. Although the district court ruled Briggs’s substantive due process
claim failed to the extent it was premised on the special relationship doctrine, that
portion of the district court’s ruling is not before us.

                                          -7-
(3) Defendants’ actions put Kelsey 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) Defendants’ conduct, when

viewed in total, shocks the conscience. Armijo v. Wagon Mound Pub. Sch., 159

F.3d 1253, 1262-63 (10th Cir. 1998). As to the first element, Defendants’ actions

must involve affirmative conduct; the failure to act, even in the face of a known

risk, is insufficient. Id. at 1263; Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d

991, 995 (10th Cir. 1994).

      Defendants challenge the sufficiency of Briggs’s complaint as to two of the

six elements of a danger creation claim. 3 They argue Briggs has failed to allege

facts demonstrating that affirmative conduct on their part created or increased the

danger to Kelsey. They also argue their alleged conduct is not conscience

shocking.

      3
        In their opening brief, Defendants argue their alleged conduct had no
effect on the mandatory duty to report child abuse imposed by Okla. Stat. tit. 10,
§ 7103. They also argue Briggs has not alleged that any abuse went unreported or
that Kelsey was further abused because of their conduct. It is unclear how these
arguments fit within the framework for asserting a danger creation claim set out
in Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1262-63 (10th Cir.
1998). In any event, in their motion to dismiss, Defendants did not point out a
failure on Briggs’s part to allege that: Kelsey was a member of a limited and
specifically definable group; their actions put her at substantial risk of serious,
immediate, and proximate harm; the risk was obvious or known; or they acted
recklessly in conscious disregard of that risk. Their arguments to the district
court were confined to assertions they did not commit any act that placed Kelsey
in danger and their conduct was not conscience shocking. This court does not
consider arguments raised for the first time on appeal. Cummings v. Norton, 393
F.3d 1186, 1190-91 (10th Cir. 2005).

                                         -8-
      This court has previously evaluated a substantive due process claim similar

to the one at issue in this appeal. Currier, 242 F.3d at 921. In Currier v. Doran,

the state of New Mexico removed two young children from the custody of their

mother, Devonne Juarez, and placed them in the custody of their father,

Christopher Vargas. Id. at 909. Vargas’s physical abuse of the children led to the

death of one child. Id. at 910. Representatives of the children filed suit under

§ 1983 alleging, inter alia, that defendant Shirley Medina, a social worker

employed by the state, violated the children’s substantive due process rights when

she instructed Juarez “to stop making allegations of abuse.” Id. at 921. Medina

moved for summary judgment, arguing the plaintiffs failed to state a substantive

due process claim. Id. at 910. The district court treated the motion as a motion to

dismiss and denied it. Id. at 911 (concluding the district court properly treated

defendant’s motion as a motion to dismiss). This court concluded plaintiffs’

allegation sufficiently set out the requisite affirmative conduct necessary to

support a danger creation claim because Medina’s alleged conduct “interfere[d]

with the protective services which would have otherwise been available” to the

children. Id. at 922 (quotation omitted) (“[T]he state creates danger when it cuts

off potential sources of private aid.”).

      Defendants attempt to distinguish Currier on the ground that Briggs has

alleged only that they merely “discouraged” the reporting of abuse whereas in

Currier, defendant Medina engaged in the affirmative act of “instructing” Juarez

                                           -9-
to stop making allegations of abuse. See Ruiz v. McDonnell, 299 F.3d 1173, 1183

(10th Cir. 2002) (noting a plaintiff must show the state actors committed

affirmative acts). We disagree with Defendants’ assertion that Briggs’s complaint

does not allege affirmative conduct on their part. Admittedly, the allegation that

Defendants discouraged the reporting of abuse could be construed to describe

both action and inaction. Defendants may have specifically directed individuals

interested in Kelsey’s welfare to cease reporting abuse or their inaction in

responding to repeated reports may have had the effect of discouraging those

individuals from continuing to report abuse. This court, however, must not only

accept Briggs’s factual allegation as true, it must also construe that allegation in

the light most favorable to him. 4 Butler, 341 F.3d at 1199. Under that standard,

we conclude he has alleged affirmative conduct on the part of Defendants by

asserting they discouraged the reporting of additional incidents of abuse against

Kelsey. Even in the absence of the required inference, the natural and obvious

interpretation of Briggs’s allegation, read in context, is that Defendants

affirmatively discouraged the reporting of abuse.

      Not all affirmative conduct is sufficient to support a substantive due

process claim. “Affirmative conduct for purposes of § 1983 should typically

involve conduct that imposes an immediate threat of harm, which by its nature

      4
      Because our review is confined to the pleadings, MacArthur v. San Juan
County, 309 F.3d 1216, 1221 (10th Cir. 2002), we deny Briggs’s Motion to
Withdraw Erroneous Statement of Counsel at Oral Argument.

                                         -10-
has a limited range and duration.” Ruiz, 299 F.3d at 1183. Additionally, the

conduct must be directed at the plaintiff, not the public in general. Id.

      Construing his complaint in the light most favorable to him, Briggs has

alleged that Defendants, Jean Bonner, and Carla Lynch, acting in concert,

instructed at least one person to cease reporting ongoing abuse perpetrated against

Kelsey. Clearly, this conduct was directed specifically at Kelsey, not the public

at large. Further, it is evident from a reading of the entire complaint that

Kelsey’s guardian, her paternal grandmother, was involved in reporting that

Kelsey was being abused during her unsupervised visits with Smith. As we

recognized in Currier, the act of instructing individuals to cease reporting abuse

has the effect of impeding access to protective services or other sources of

assistance otherwise promptly available to the victim at the time of the abuse.

242 F.3d at 922. Thus, if true, Defendants’ actions imposed an immediate threat

of harm to Kelsey which was limited in range and duration. Accordingly, we

conclude Briggs has sufficiently alleged that Defendants created or increased

Kelsey’s vulnerability to abuse by their alleged act of discouraging the reporting

of additional incidents of abuse.

      Defendants next argue Briggs has failed to make out a danger creation

claim because their alleged affirmative conduct is not conscience shocking. See

Armijo, 159 F.3d at 1262-63 (holding § 1983 plaintiff must demonstrate

defendant’s conduct is conscience shocking). Again we disagree. This court

                                         -11-
determines whether state action shocks the conscience by evaluating “(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. Defendants were aware that Kelsey suffered no injuries

from January 17, 2005, to March 16, 2005, the period during which her paternal

grandmother acted as her guardian and Smith had no unsupervised visitation

rights. They were also aware that one week after unsupervised visits with Smith

commenced, Kelsey suffered abuse. Yet, according to Briggs, Defendants

nonetheless discouraged individuals from continuing to report abuse. On this

record, we can discern no reasoned justification or policy consideration that

would support such conduct. Viewed in total, Briggs has described conduct that

could be “construed as conscience-shocking, depending on context” after the facts

are fully developed. Armijo, 159 F.3d at 1264.

      Briggs’s complaint differs from the complaint we concluded was

insufficient in a recent case also involving allegations of substantive due process

violations by state employees. See Robbins, 2008 WL 747132, at *5-*8. In

contrast to the complaint in Robbins, Briggs’s allegation that Defendants

discouraged the reporting of additional incidents of abuse is specific enough to

give Defendants fair notice of the grounds on which he claims entitlement to

relief. Based on this allegation, the district court had no difficulty applying

Currier to determine that the constitutional right asserted was clearly established.

                                         -12-
See id. at *4 (stating allegations must be sufficiently clear to permit a district

court “to perform its function of determining, at an early stage in the litigation,

whether the asserted claim is clearly established”). Further, although Briggs’s

complaint contains multiple claims against multiple defendants, there is no

confusion as to whom the allegation is asserted against. See id. at *5 (concluding

the complaint did not give the defendants fair notice because it failed to

distinguish which acts were attributable to which defendant). The complaint

clearly names Defendants Burgess, Johnson, and Hunter as the individuals who

allegedly discouraged the reporting of abuse. It also clearly identifies Burgess,

Johnson, and Hunter as the individuals who “were repeatedly notified of injuries

and/or abuse to Kelsey.”

      Briggs’s complaint, viewed in its entirety, gives this court reason to believe

that he has “a reasonable likelihood of mustering factual support” for his

substantive due process claim based on the danger creation theory. Ridge at Red

Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Thus, Briggs

has “state[d] a claim to relief that is plausible on its face,” Twombly, 127 S. Ct. at

1974, and satisfied his obligation to allege “the deprivation of an actual

constitutional right.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). Our inquiry

ends here because Defendants have not challenged the district court’s conclusion

that Briggs has met his burden of showing that the constitutional right he asserts

was clearly established. See Conn, 526 U.S. at 290 (holding a court evaluating a

                                          -13-
qualified immunity defense must determine whether the constitutional right was

clearly established at the time of the violation).

IV.      Conclusion

         We affirm the denial of Defendants’ motion to dismiss to the extent they

assert an entitlement to qualified immunity on Briggs’s danger creation claim

predicated on their act of discouraging the reporting of additional incidents of

abuse.

                                                 ENTERED FOR THE COURT


                                                 Michael R. Murphy
                                                 Circuit Judge




                                          -14-
Briggs v. Johnson, No. 07-6037.
McCONNELL, J., dissenting.

      Counsel drafted this complaint and the district court decided the motion to

dismiss under the pleading standard set by Conley v. Gibson, 355 U.S. 41, 45–46

(1957) (“[A] complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.”). That standard was overruled by the

Supreme Court in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). See

Robbins v. Oklahoma, ___ F.3d ___, No. 07-7021, 2008 WL 747132 (10th Cir.

Mar. 21, 2008). I would remand this case to the district court for consideration

under the new standard and, if appropriate, for dismissal without prejudice to

permit counsel to prepare a complaint in compliance with Twombly.
