                                                                                   FILED
                                                                       United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                        Tenth Circuit

                                FOR THE TENTH CIRCUIT                           July 12, 2018
                            _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
TIMOTHY MARVIN BISHOP,

         Plaintiff - Appellee,

v.                                                          No. 17-6136
                                                     (D.C. No. 5:13-CV-00171-D)
ROBYN SINGLETON SZUBA,                                      (W.D. Okla.)

         Defendant - Appellant.
                         _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before LUCERO, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

         Robyn Szuba appeals the district court’s order denying her motion for

summary judgment on qualified-immunity grounds. Because we agree with Szuba

that the district court erred in finding the contours of the right at issue were clearly

established, we reverse and remand with directions to enter summary judgment in her

favor.

                                       Background

         The Oklahoma Department of Human Services (OKDHS) placed Timothy Bishop

in Mark Lewis’ foster home in August 1999. Five months later, OKDHS received a


         *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
report about potential wrongdoing in the Lewis foster home. This report contained

allegations of sexual abuse, prompting OKDHS to remove Bishop from the Lewis foster

home. Police ultimately learned that Lewis sexually molested Bishop between August

1999 and January 2000. And a jury subsequently convicted Lewis of several crimes,

including first-degree rape.

       We now turn to events that occurred well before Bishop’s placement in the Lewis

foster home but that nevertheless form the basis of Bishop’s underlying claim against

Szuba. As a child-welfare social worker with OKDHS, Szuba investigated reports of

suspected child abuse and neglect. As relevant here, she conducted two investigations

into Lewis’ foster home. The first investigation began in December 1997, after OKDHS

received a report alleging that a seven-year old in the Lewis foster home consistently

spent late nights at a pool hall, only ate once a day, and had an unexplained red mark on

his eye. Szuba interviewed Lewis, the foster child, and others. She found the allegations

unsubstantiated.

       The second investigation began in March 1999, after OKDHS received another

report about the Lewis foster home. This report accused Lewis of exposing the children

“to adult sexuality in photos,” verbally abusing the children when they lost pool games,

forcing the children to work at pool halls for money, failing to feed the children at pool

tournaments, and keeping the children out late at night. App. 202. After receiving the

report, Szuba interviewed three of the children living in the Lewis foster home. She also

interviewed Lewis; the nurse at the children’s school; the two child-welfare workers

assigned to the children; and Paula Dykes—the mother of one of the children’s friends.

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Dykes told Szuba that she heard “a rumor” from her daughter that Lewis’ former

secretary resigned because the secretary saw pictures of the foster children in sexual

positions. App. 211. But Dykes didn’t know the name of the former secretary or where

she currently worked. And other than Dykes, none of the other interviewees suspected

inappropriate sexual behavior in the Lewis foster home. Indeed, each of the children told

Szuba that “they . . . never felt uncomfortable or unsafe in the Lewis foster home.” App.

203. Szuba then concluded her investigation and, without following up on the “rumor,”

ruled out the report’s allegations. App. 211.

       Based on this chain of events, Bishop ultimately brought a 42 U.S.C. § 1983 claim

against Szuba. In support, he alleged that Szuba violated his Fourteenth Amendment

rights by failing to adequately investigate the earlier allegations against Lewis. But for

Szuba’s inadequate investigation, Bishop asserted, OKDHS wouldn’t have placed him in

the Lewis foster home and Lewis wouldn’t have sexually assaulted him.

       Szuba moved for summary judgment, arguing, in relevant part, that she was

entitled to qualified immunity. The district court disagreed and denied Szuba’s

motion for summary judgment. She appeals.

                                         Analysis

       Szuba argues that the district court erred in ruling that she wasn’t entitled to

qualified immunity on Bishop’s § 1983 claim. “We review the district court’s

qualified[-]immunity determinations de novo, viewing the evidence in the light most

favorable to the plaintiff as the nonmoving party.” Felders ex rel. Smedley v.

Malcom, 755 F.3d 870, 877 (10th Cir. 2014).

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       When a defendant asserts qualified immunity at summary judgment, “the

plaintiff must demonstrate on the facts alleged both that the defendant violated his [or

her] constitutional or statutory rights, and that the right was clearly established at the

time of the alleged unlawful activity.” Riggins v. Goodman, 572 F.3d 1101, 1107

(10th Cir. 2009). “If the plaintiff fails to satisfy either part of” this “two-part inquiry,

the court must grant the defendant qualified immunity.” Medina v. Cram, 252 F.3d

1124, 1128 (10th Cir. 2001).

       A.     The Constitutional Violation

       As a general rule, state actors can’t be held liable under the Due Process

Clause for the actions of private citizens. Uhlrig v. Harder, 64 F.3d 567, 572 (10th

Cir. 1995). But there are two exceptions to this general rule: “(1) the special

relationship doctrine; and (2) the ‘danger creation’ theory.” Id. The parties agree that

only the former exception is at issue here.

       The special-relationship doctrine “protects individuals who involuntarily enter

state custody and subsequently become reliant on the [s]tate, through its agencies and

officials, to provide their basic human needs, paramount among those safety.”

Schwartz v. Booker, 702 F.3d 573, 585 (10th Cir. 2012). This relationship “imposes a

continuing constitutional duty on state custodial officials to safeguard individuals”—

including foster children—who are “in the [s]tate’s care.” Id. at 580, 585. A state

official violates this duty if he or she “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.

                                              4
Oklahoma, 878 F.3d 1233, 1238–39 (10th Cir. 2018) (alterations and omission in

original) (quoting Schwartz, 702 F.3d at 580).

      But it’s not enough for a plaintiff to allege that a state official failed to

exercise her professional judgment. Id. at 1239. Rather, a plaintiff must show that a

defendant “abdicated her professional duty sufficient to shock the conscience.” Id.

(quoting Schwartz, 702 F.3d at 585–86). “Conduct is shocking to the conscience

when the ‘degree of outrageousness and [ ] magnitude of potential or actual harm [ ]

is truly conscience shocking.’” Schwartz, 702 F.3d at 586 (alterations in original)

(quoting Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262

(10th Cir. 1998)).

      Here, the district court found that Szuba’s conduct satisfied the first prong of the

qualified-immunity test. App. 503. We have some doubts about that conclusion.

Specifically, we question whether there exists an affirmative link between Bishop’s

injuries and Szuba’s conduct. For instance, Bishop didn’t reside in the Lewis foster home

when Szuba conducted her investigations, and there’s no evidence that Szuba had

anything to do with Bishop’s placement in the Lewis foster home. In fact, Szuba no

longer worked for OKDHS at the time of Bishop’s placement.

      Nevertheless, we assume without deciding that Szuba indeed violated Bishop’s

constitutional right “to be kept reasonably safe from harm.” App. 505 (quoting

Schwartz, 702 F.3d at 587). We pursue this route because we conclude, for the

reasons discussed below, that Bishop fails to satisfy the second prong of the

qualified-immunity test. That is, he fails to show the law was clearly established.

                                            5
Accordingly, we need not resolve the constitutional question. See Perry v. Durborow,

No. 17-5023, 2018 WL 2925202, at *5 (10th Cir. June 12, 2018) (assuming

constitutional violation occurred but nevertheless reversing order denying qualified

immunity because plaintiff failed to demonstrate that law was clearly established).

      B.     Clearly Established Law

      An official is entitled to qualified immunity so long as his or her actions don’t

“violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “A clearly established right is one that

is ‘sufficiently clear that every reasonable official would have understood that what

he [or she] is doing violates that right.’” Mullenix, 136 S. Ct. at 308 (quoting Reichle

v. Howards, 566 U.S. 658, 664 (2012)). “Ordinarily, in order for the law to be clearly

established, there must be a Supreme Court or Tenth Circuit decision on point, or the

clearly established weight of authority from other courts must have found the law to

be as the plaintiff maintains.” Schwartz, 702 F.3d at 587 (quoting Walker v. City of

Orem, 451 F.3d 1139, 1151 (10th Cir. 2006)). Although “[w]e do not require a case

directly on point, [] existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308 (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011)).

      Importantly, the Supreme Court has recently and frequently reminded us that

we can’t “define clearly established law at a high level of generality.” Id. (quoting



                                           6
al-Kidd, 563 U.S. at 742); see also White, 137 S. Ct. at 552 (requiring court “to

identify a case where [official] acting under similar circumstances as [defendant] was

held to have violated” relevant constitutional right before treating law as clearly

established). Rather, “[t]he dispositive question is ‘whether the violative nature of

particular conduct is clearly established.’” Mullenix, 136 S. Ct. at 308 (quoting al-

Kidd, 563 U.S. at 742). As such, we view this inquiry “in light of the specific context

of the case, not as a broad general proposition.” Id. (quoting Brosseau v. Haugen,

543 U.S. 194, 198 (2004)); see also White, 137 S. Ct. at 552 (holding that “the

clearly established law must be ‘particularized’ to the facts of the case” (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987))); T.D. v. Patton, 868 F.3d 1209,

1231 (10th Cir. 2017) (comparing specific facts before court to facts of prior case

before determining that prior case clearly established contours of relevant right).

      Here, the district court did exactly what the Supreme Court has said not to do:

it (1) “define[d] clearly established law at a high level of generality,” Mullenix, 136

S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742), and (2) failed to discuss the

“‘particularized’ . . . facts of th[is] case,” White, 137 S. Ct. at 552 (quoting Anderson,

483 U.S. at 640). Specifically, it stated that foster children have a clearly established

right to “be kept reasonably safe from harm” while in foster care and that this general

right “has been clearly established since at least 1985.” App. 505 (quoting Schwartz,

702 F.3d at 587). The district court did cite two cases to support this conclusion. But

it neither discussed the facts of those cases nor explained whether or how those facts

are sufficiently similar to the ones before us to place the constitutional question here

                                            7
“beyond debate.” Mullenix, 136 S. Ct. at 308. And our independent review of those

two cases convinces us that neither one clearly established the contours of the right at

issue.

         In Yvonne L. ex rel. Lewis v. New Mexico Department of Human Services, 959

F.2d 883 (10th Cir. 1992), we held that, as a general matter, foster children indeed

have a right “to protection while in foster care.” Id. at 892–93. And we also set forth

the standard for determining whether a defendant has violated that right. See id. at

893–94. But we didn’t apply that standard to the defendants’ conduct. See id. Instead,

we remanded to the district court to determine, in the first instance, whether a

constitutional violation occurred. See id. Thus, because we didn’t find a

constitutional violation in Yvonne L., it doesn’t clearly establish the contours of the

constitutional right at issue here. See White, 137 S. Ct. at 552.

         Neither does Schwartz, which we decided more than 13 years after Szuba’s

investigation. See 702 F.3d at 573; Brosseau, 543 U.S. at 200 n.4 (explaining that

when particular legal authority “postdate[s] the conduct in question,” that authority is

necessarily incapable of giving state officials “fair notice” and is consequently “of no

use in the clearly[-]established inquiry”); Riggins, 572 F.3d at 1107 (stating that law

must be clearly established at time of unlawful activity).

         In short, even if we assume that Szuba violated Bishop’s Fourteenth

Amendment rights, neither Schwartz nor Yvonne L.—the only two cases the district

court cited below—clearly establishes as much. And Bishop doesn’t identify on

appeal any additional authorities that might. Cf. Cox v. Glanz, 800 F.3d 1231, 1247

                                            8
(10th Cir. 2015) (noting that because plaintiff failed to identify specific case or cases

“that would indicate [relevant] right was clearly established,” court could conclude,

“[o]n this basis alone,” that plaintiff failed “to defeat [defendant’s] assertion of

qualified immunity”). Accordingly, Szuba is entitled to qualified immunity. See id.

(holding that defendant was entitled to qualified immunity because plaintiff “failed to

satisfy her burden on the clearly-established-law prong of the qualified-immunity

standard”). We therefore reverse the district court’s order and remand with directions

to enter summary judgment in Szuba’s favor.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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