                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             FEB 26 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BARBARA DAVIS, as Personal                       No.   18-36044
Representative of the Estate of G.B.,
deceased,                                        D.C. No. 2:18-cv-00194-SMJ

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

WASHINGTON STATE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES;
et al.,

              Defendants-Appellees,

 and

JANE DOE STOKES, and the marital
community comprised thereof; JANE DOE
KIRKLAND, and the marital community
comprised thereof,

              Defendants.


                   Appeal from the United States District Court
                       for the Eastern District of Washington
                  Salvador Mendoza, Jr., District Judge, Presiding



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      Argued and Submitted February 3, 2020
                               Seattle, Washington

Before: M. SMITH, N.R. SMITH, and BRESS, Circuit Judges.

      Barbara Davis, personal representative of decedent G.B.’s estate, appeals the

district court’s grant of summary judgment for Jeremy Kirkland, a social worker

with the Washington State Department of Social Health Services (“WSDSHS”),

based on its determination that Kirkland was entitled to qualified immunity. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      In determining whether a social worker is entitled to qualified immunity, we

must examine “(1) whether the facts, taken in the light most favorable to the party

asserting the injury, show that the social workers’ conduct violated a constitutional

right and (2) if so, whether the right was clearly established, such that a reasonable

official would understand that his conduct violated that right.” Cox v. Dep’t of Soc.

& Health Servs., 913 F.3d 831, 837 (9th Cir. 2019) (alterations adopted) (quoting

Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010)).

      Under our precedents, “[w]here children are in state custody, the Fourteenth

Amendment’s substantive due process clause protects their liberty interest ‘in

social worker supervision and protection from harm inflicted by a third party.’” Id.

(alteration adopted) (quoting Tamas, 630 F.3d at 842). We have held that this



                                           2
liberty interest is violated when a social worker acts with deliberate indifference,

which requires a two-part showing: (1) “an objectively substantial risk of harm”

and (2) “‘that the officials were subjectively aware of facts from which an

inference could be drawn’ that such a risk existed and that ‘either the official

actually drew that inference or that a reasonable official would have been

compelled to draw that inference.’” Id. at 837–38 (quoting Tamas, 630 F.3d at

845). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391

F.3d 1051, 1061 (9th Cir. 2004).

      Davis argues that, because Kirkland violated department policies requiring a

request of courtesy supervision and a home study from the Spokane office in

conjunction with G.B.’s placement in his paternal aunt’s home, Kirkland was

deliberately indifferent to G.B.’s protected liberty interests. However, “[w]hether

the [social worker] violated a state law or an internal departmental policy is not the

focus of our inquiry.” Case v. Kitsap Cty. Sheriff’s Dep’t, 249 F.3d 921, 929 (9th

Cir. 2001). Rather, the focus is on whether there is a violation of federal statutory

or constitutional rights. See id.

      Viewing the record in a light most favorable to Davis, there is insufficient

evidence to show that there was an objectively substantial risk that G.B. would be

physically harmed by his aunt. Kirkland began supervising G.B.’s assigned social


                                           3
worker in August 2014, after G.B. was permanently placed in his aunt’s home.

When there were concerns over G.B’s social worker’s quality of work, Kirkland

promptly began the investigation leading to the social worker’s removal from

cases. Kirkland then assigned a new social worker, who requested courtesy

supervision and a home study. Thereafter, G.B. was visited at least monthly by a

social worker. No safety concerns for G.B. were ever reported by social workers.

The single report in December 2014 to WSDSHS suggesting that G.B.’s aunt

posed a risk of harm to G.B. was ultimately determined to be unfounded. Because

these facts known at the time do not rise to the level of an objectively substantial

risk of harm to G.B., the high standard of deliberate indifference is not met. Thus,

Kirkland is entitled to qualified immunity.1

      AFFIRMED.2




      1
        Because we determine there was no objectively substantial risk of harm, we
need not decide WSDSHS’s contentions about the scope of the clearly established
right and the applicability of Ashcroft v. Iqbal, 556 U.S. 662 (2009).
      2
       WSDSHS’s motion for the court to take judicial notice of two records filed
by Davis in the companion case is denied.
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