Citations
- 65 F. Supp. 3d 1206
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Individual DOH Defendants’ Motion to Dismiss Plaintiffs Substantive Due Process Claim on the Basis of Qualified Immunity, filed March 6, 2014 (Doc. 22)(“MTD”). The Court held a hearing on October 23, 2014. The primary issues are whether Defendants Dan Sandoval, Roger Adams, Joseph Mateju, and Beth Schaefer (collectively “Individual DOH Defendants”) violated Plaintiff A.M.’s substantive due-process rights under the Fourteenth Amendment to the Constitution of the United States of America when they failed to ensure her health and safety after she was involuntarily committed to state custody due to her developmental disabilities. The Court will deny the MTD in part and grant it in part. The Court concludes that: (i) assuming the truth of the facts in the Complaint, the Individual DOH Defendants violated A.M.’s substantive due-process rights; (ii) such rights were clearly established when the Supreme Court of the United States decided Youngberg v. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), on June 18, 1982; and (iii) the extraordinary circumstances exception to the qualified-immunity analysis does not apply. Consequently, the Court grants the MTD as to the Individual DOH Defendants’ conduct that occurred before June 18, 1982, and denies the MTD as to the Individual DOH Defendants’ conduct that occurred after June 18, 1982.
FACTUAL BACKGROUND
The Court takes its facts from the Complaint, as it must when considering a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court has reorganized the factual material in the Complaint, however, to explain the facts more clearly.
1. The Parties.
Plaintiff A.M. is a sixty-six year old woman who has been diagnosed with various developmental disabilities. See Complaint ¶ 66, at 18. A.M. was involuntarily committed to the New Mexico Department of Health (“DOH”) by court order on May 8, 1963, when she was sixteen years old, because her developmental disabilities rendered her unable to care for herself. See Complaint ¶¶ 67-69, at 18-19. Because of her disabilities, A.M. brings this action through her guardian ad litem, Joleen Youngers. See Complaint ¶ 66, at 18.
The DOH operates all of the facilities that house and treat people with developmental disabilities in the State of New Mexico. See Complaint ¶ 8, at 4. One of these facilities is the Los Lunas Center for Persons with Developmental Disabilities— formerly known as the Los Lunas Hospital and Training School (“Los Lunas Hospital”). Complaint ¶ 8, at 4. The Fort Stanton Hospital and Training School (“Fort Stanton”) was another DOH facility for individuals with developmental disabilities, and was a subsidiary of the Los Lunas Hospital. Complaint ¶¶ 8-9, at 4. Because the Complaint refers to the Los Lunas Hospital and Fort Stanton collectively as the “Training School,” the Court will do so throughout this Memorandum Opinion and Order (“MOO”). Complaint ¶ 1, at 1-2; id. ¶ 11, at 4-5. Moreover, because the Complaint refers to the DOH and the Training School collectively as “the DOH Defendants,” the Court will do so throughout this MOO. Complaint ¶ 11, at 4
Before 1992, the New Mexico Human Services Department (“HSD”) was responsible for operating Adult Protective Services (“APS”) in New Mexico. Complaint ¶ 22, at 8. APS is responsible for protecting adults with developmental disabilities from exploitation, abuse and neglect. See Complaint ¶ 22, at 8. APS must also ensure that those adults receive the treatment and social services that they need. See Complaint ¶22, at 8. From 1992 to 2005, the New Mexico Children Youth and Families Department (“CYFD”) inherited HSD’s responsibilities for all protective services in the state, including APS. Complaint ¶ 23, at 8. CYFD was responsible for the continuing coordination and supervision of APS; for adopting rules and regulations necessary to implement and operate APS; and for evaluating APS’ effectiveness. See Complaint ¶ 23, at 8. In 2005, the New Mexico Aging and Long-Term Services Department (“ALTSD”) inherited APS from CYFD and has since then operated APS. Complaint ¶ 24, at 8-9. Similar to its predecessors, the ALTSD is responsible for the continuing coordination and supervision of APS; for adopting rules and regulations necessary to implement and operate APS; and for evaluating APS’ effectiveness. See Complaint ¶ 25, at 9. Because the Complaint refers to the ALTSD, APS, and the DOH Defendants as the “State Agency Defendants,” the Court will do so throughout this MOO. Complaint ¶ 27, at 9.
Schaefer was an attorney for the DOH and the Training School from September 13, 1976, to December 31, 2001. See Complaint ¶ 14, at 5. Sandoval was the Director of Resident Living for the Training School between 1979 and 1985. See Complaint ¶ 16, at 5. As Director of Resident Living, Sandoval was in charge of social services and the Training School’s social workers. See Complaint ¶ 45, at 12. Sandoval was also a member of the Training School’s Screening Committee on Admissions and Releases (“SCAR”) and, at times, its chairman. Complaint ¶ 16, at 6.
Defendant Roger Adams was the Training School’s Deputy Administrator or Acting Administrator “during the relevant time period.” Complaint ¶ 18, at 6. Adams made hundreds of , decisions regarding the placement and treatment of Training School residents — including the Training School’s placement and discharge decisions relating to A.M. See Complaint ¶ 18, at 6. Adams chaired SCAR, attended most SCAR meetings, and approved A.M.’s discharge from aftercare without taking any steps to ascertain whether she would be safe or have her medical and other needs met. See Complaint ¶ 18, at 6.
Defendant Joseph Mateju was the Training School Administrator “during the relevant time period.” Complaint ¶ 20, at 7. As Administrator, he made the final decisions regarding the placement and treatment of Training School residents, and all placement and discharge decisions relating to A.M. See Complaint ¶ 20, at 7. He also had the authority to unilaterally accept and remove individuals from the Training School. See Complaint ¶20, at 7. Mateju was responsible for the placement of many residents — including A.M.— into third-party homes, boarding homes, and other outside facilities. See Complaint ¶20, at 7. Mateju personally attended SCAR meetings during which A.M. was discussed, and he personally approved decisions regarding her discharge, including “from aftercare,” without taking any steps to ascertain whether she would be safe or have serious medical and other needs addressed. See Complaint ¶ 20, at 7. Mateju had responsibility for ensuring that appropriate measures were taken to: (i) provide for A.M.’s health, safety, and well-being; (ii) ensure that she received appropriate services; and (Hi) ensure that A.M. continued to receive those services in any third-party placements. See Complaint ¶ 20, at 7-8.
2. The Aftercare Program.
Over a period of two decades — through the 1970s and 1980s — the DOH Defendants systematically transferred hundreds of developmentally disabled individuals from state institutions to various private third parties throughout New Mexico. See Complaint ¶ 2, at 2; id. ¶ 37, at 10. These private third parties ranged from boarding homes to private residences and commercial enterprises. See Complaint ¶ 2, at 2. The Defendants called this program “aftercare”; the developmentally disabled individuals placed with third parties through the aftercare program were called “aftercare residents.” Complaint ¶ 2, at 2; id. ¶ 38, at 11.
The Defendants placed aftercare residents with private third parties “without anyone’s informed consent, without the appointment of guardians or any other legally-authorized surrogate decision-makers, without permission from the courts that committed them to the state institutions ..., and without due process of law....” Complaint ¶3, at 2. In some cases, the Defendants contacted ex parte the judicial authorities that had committed aftercare residents to the Training School and “provided misleading information to them concerning the status of individuals discharged from the Training School.” Complaint ¶ 3, at 2-3. In other cases, the Defendants did not communicate with the judicial authorities that committed individuals to the Training School at all before transferring those individuals to private third parties. See Complaint ¶ 3, at 2-3.
After transferring aftercare residents to their third-party placements, the DOH and the Individual DOH Defendants “abandoned” them. Complaint ¶ 3, at 2. The DOH and the Individual DOH Defendants neither provided them with the services that they needed, nor protected them from abuse, neglect, or exploitation. See Complaint ¶ 3, at 2. When the events alleged in the Complaint occurred, approximately eight social workers at the Training School oversaw 431 aftercare residents, “while also performing social work duties for hundreds of people still residing” at the Training School. Complaint ¶ 48, at 13. Although Training School policies required Training School personnel to oversee and conduct periodic visits of aftercare residents, the DOH Defendants “did not use any system to ensure that residents in aftercare would be safe or that they would receive minimally adequate services.” Complaint ¶ 43, at 12.
Sandoval, despite being charged with overseeing the Training School’s social workers, “did not know of any guidelines on how residents in aftercare placements would be cared for, did not know of a system to follow up with those residents, and did not know of a system ... to know how many residents were placed in private third-party placements.... ” Complaint ¶ 49, at 13. Sandoval did not know “what the conditions of the residents was,” or “what services they needed.” Complaint ¶ 49, at 13.
Training School administrators — including the Individual DOH Defendants — were aware that the social workers assigned to oversee aftercare placements often did not visit aftercare residents in their third-party placements. See Complaint ¶ 47, at 12. They were aware that the social workers— when they checked on the aftercare residents at all — usually relied on telephone calls to the private third parties who administered the placements rather than an in-person contact. See Complaint ¶ 47, at 12-13. Training School administrators— including Adams, Mateju, and Schaefer— had frequent conversations about the problem of social workers’ failure to make their required visits or to contact aftercare residents. See Complaint ¶ 51, at 13-14. The DOH Defendants and the Individual DOH Defendants were “well aware of the dangers residents faced due to the way in which the aftercare program was operated, but they proceeded anyway.” Complaint ¶ 52, at 14.
The “well-known failure” of the Training School’s social workers to provide oversight for aftercare residents drove the DOH Defendants and the Individual DOH Defendants to “discharge” Training School residents from aftercare “whenever and however possible.” Complaint ¶ 53, at 14. Schaefer was in charge of changes to the Training School’s discharge procedures in the late 1970s and early 1980s. See Complaint ¶ 55, at 14. Specifically, Schae-fer told Training School administrators that “there were too many residents on aftercare” and recommended that the Training School discharge residents from aftercare. Complaint ¶ 54, at 14. Sometime between September 1978 and the end of 1980, Schaefer began advising that all aftercare residents should be discharged from the Training School “without judicial review and without any due process protections whatsoever.” Complaint ¶ 57, at 15.
Schaefer told Training School administrators that “the state institutions’ custody of people committed to the institution by court order automatically lapsed” on the New Mexico Mental Health Code’s effective date of July 1, 1977, despite judicial orders of commitment for an indeterminate period. Complaint ¶ 56, at 15. Schaefer advised Training School administrators that a change in the Mental Health Code meant that the court orders committing aftercare residents to State custody were void — regardless whether the residents’ original placements with private third parties had been judicially reviewed. See Complaint ¶ 56, at 15. Schaefer explained to Training School administrators and staff that “it’s different now and you don’t need a discharge order signed by a judge.” Complaint ¶ 61, at 17 (internal quotation marks omitted).
According to Schaefer, Training School administrators were “reluctant to proceed without a paper trail, so [she] instructed Defendant Adams to ‘just put a note in ... the file that says ... [that the aftercare resident] was discharged.’ ” Complaint ¶ 61, at 17 (alterations in Complaint). Once there was a “piece of paper in the file,” residents could be, in Schaefer’s words, “cut loose” from the Training School without consideration of judicial orders, the residents’ health and safety, or the residents’ need for services. Complaint ¶ 61, at 17. Schaefer neither conr ducted legal research nor consulted legal experts in developing these new discharge policies. See Complaint ¶ 56, at 15.
Schaefer acknowledged that former Training School residents were particularly vulnerable and in danger of abuse and exploitation once they were no longer under the Training School’s supervision. See Complaint ¶ 60, at 16-17. Schaefer was aware when she designed and directed the new aftercare discharge policy that Training School personnel had not done any discharge planning for aftercare residents, and had failed to make contact with residents before or after their discharge, to assure their health and safety, and to assure that they were not being abused or exploited. See Complaint ¶ 59, at 16. Schaefer considered the fallout from the danger that such a policy posed to aftercare residents “to be merely a public relations issue, not a legal obstacle.” Complaint ¶ 61, at 17 (internal quotation marks omitted).
Under Schaefer’s direction, Training School administrators “deliberately decided not to appoint surrogate decision-makers for its residents or to otherwise provide procedural due process” before removing residents’ names from the Training School’s rolls. Complaint ¶ 57, at 15. “Training School residents were not even informed that they were no longer clients of the Training School.” Complaint ¶ 57, at 15. Aftercare residents “were routinely removed from the rolls of Training School clients” based solely on letters that Mateju sent to the district attorney in the county where each resident was originally committed. Complaint ¶ 65, at 18. These letters did not “supply[] the background information necessary for discharge, including the circumstances of residents and whether the resident or a responsible adult consented to discharge.” Complaint ¶ 65, at 18. Instead, judicial authorities were “misled into believing that residents consented to and* were happy in their placements.” Complaint ¶ 65, at 18.
In Sandoval’s view, “discharge from aftercare was not a complete separation of the Training School’s responsibility for residents.” Complaint ¶ 63, at 17-18. “Even after residents were discharged from aftercare, the Training School at times took action to respond to allegations of abuse when they came to their attention .... ” Complaint ¶ 64, at 18. DOH Defendants and Individual DOH Defendants, however, “failed to establish any system permitting residents to complain about their treatment, or any system permitting the Training School to provide oversight at third-party placements.” Complaint ¶ 64, at 18. The DOH Defendants and Individual DOH Defendants decided that discharging residents from aftercare eliminated the need for social worker visits. See Complaint ¶ 51, at 13-14. Sandoval has admitted that he “wouldn’t know whether somebody was go- . ing to be taken care of after discharge from aftercare, and it never crossed his mind to be concerned that residents discharged from aftercare might be abused or neglected.” Complaint ¶ 63, at 17 (internal quotation marks omitted)(brackets omitted).
3. AM.
A court order committed A.M. to Fort Stanton or to another state institution on May 8, 1963, when she was sixteen years old. See Complaint ¶ 66, at 18. By 1967, either through transfer or continuing placement, A.M. was a Fort Stanton resident. See Complaint ¶ 66, at 18. On November 12, 1979, the Defendants transferred A.M. to the Homestead House and “abandoned” her there as part of the aftercare program. Complaint ¶ 73, at 20. The DOH Defendants’ and the Individual DOH Defendants’ transfer of A.M.' from Fort Stanton to the Homestead House “was without legal authority.” Complaint ¶ 78, at 20. A.M. was still in the DOH Defendants’ and Individual DOH Defendants’ legal custody after she was placed with M. Evans. See Complaint ¶ 12, at 5.
, The Defendants allege, however, that A.M. was transferred to the Homestead House “pursuant to State District Court Order No. 1/387-388 filed on October 17, 1979 in Case No. CV-SQ-0095-79, Twelfth judicial District, County of Lincoln” (“Oct. 17, 1979, Order”). MTD 1 at 2. The Oct. 17, 1979, Order reads, in pertinent part:
1. Respondent has a developmental disability which is so greatly disabling that residential habilitation is in her best interest;
2. Respondent’s habilitation at Fort Stanton Hospital and Training School is not consistent with the least drastic means principle as respondent could benefit from a less restrictive setting such as a community based group home;
3. Placement in a community based program for persons with developmental disabilities is not presently available for respondent.
IT IS ORDERED
That respondent be and hereby is committed to Fort Stanton Hospital and Training School for residential habilitation for a period not to exceed six months;
■
IT IS FURTHER ORDERED
That during the period of extended residential habilitation petitioner shall make application to less restrictive programs on behalf of respondent and shall make every effort to transfer respondent to a less restrictive setting. At the expiration of this order petitioner shall report to this Court concerning its progress toward releasing respondent if further confinement at Fort Stanton Hospital is sought.
Oct. 17,1979, Order.
The Homestead House is a private, unlicensed group shelter for elderly people that Mary Evans owned. See Complaint ¶ 73, at 20. A.M. did not know M. Evans before being transferred to the Homestead House. See Complaint ¶ 73, at 20. Neither the Homestead House nor M. Evans was a licensed service provider for people with developmental disabilities. See Complaint ¶ 73, at 20. Neither M. Evans nor any Homestead House employee had the necessary training or experience to properly care for A.M., and M. Evans had no legal right to hold A.M. See Complaint ¶¶ 76, 78, at 20.
A.M. lived with M. Evans for over thirty years. See Complaint ¶ 85, at 23. Although the Defendants retained legal control over A.M. after placing her at the Homestead House, neither the Defendants nor any of their agents checked on A.M. in any fashion. See Complaint ¶¶ 77, at 21; id ¶ 80, at 22. Instead, the Defendants “cloak[ed] the Homestead House and Mary Evans with untoward authority and absolute control over Plaintiff, who was entirely dependent on this third-party placement for her day-to-day existence.” Complaint ¶ 77, at 21.
At the Homestead House, A.M. was “put to work.” Complaint ¶ 93, at 24-25 (internal quotation marks omitted). Although A.M. performed housekeeping and other services at the Homestead House, M. Evans never compensated her for her work. See Complaint ¶ 93, at 24-25. M. Evans threatened A.M. if she did not work, emotionally abused A.M., and neglected her medical needs. See Complaint ¶ 91, at 24; id ¶ 96, at 25. While in M. Evans’ custody, A.M. did not receive social services; Medicaid and social security benefits; adequate medical, dental and psychological care; rehabilitative, educational and vocational services; day habilitation and therapy. See Complaint ¶ 85, at 23. M. Evans stole A.M.’s social security checks for her own use and did not spend the funds for A.M.’s benefit. See Complaint ¶ 94, at 25. The Defendants facilitated the transfer of A.M.’s social security checks to M. Evans with deliberate indifference to whether M. Evans was using or intended to use the social security funds for A.M.’s benefit. See Complaint ¶83, at 22. While at the Homestead House, A.M. was socially isolated and was rarely allowed to leave. See Complaint ¶ 87, at 23.
The DOH transferred J.P., another developmentally disabled woman, to the Homestead House on the same day as A.M.’s transfer. See Complaint ¶ 88, at 24. While at the Homestead House, J.P. attempted to leave to find her children, from whom she had been separated. See id J.P. climbed over the wall and wandered the streets calling out for her children and eventually either returned or was brought back to the Homestead House. See Complaint ¶ 88, at 24. After this incident, Evans took J.P.’s shoes and planted cacti at the place where J.P. had climbed the wall to prevent her from escaping. See id J.P. continued to try to escape. See id At one point, J.P. jumped over the wall and landed in the cactus. See id Through punishing J.P. for escaping, M. Evans made it clear to A.M. that she could prevent A.M. from leaving the Homestead House. See id.
The State eventually shut down the Homestead House. See Complaint ¶ 97, at 24. When that occurred, A.M. was transferred to M. Evans’ private residence — - also an unlicensed group shelter. See Complaint ¶98, at 25. A.M.’s transfer from the Homestead House was without either A.M.’s consent or judicial authority. See Complaint ¶ 98, at 25-26. If judicial authority was obtained for A.M.’s transfer, “the presiding judge was misled by DOH Defendants and the individual Defendants concerning the circumstances of Plaintiffs removal to Mary Evans’ private residence.” Complaint ¶ 98, at 26.
In October, 1999, APS investigated'-'allegations that M. Evans was physically neglecting A.M. See Complaint ¶ 99, at 26. APS found the allegations unsubstantiated. See Complaint ¶ 99, at 26. APS did not determine, however, whether M. Evans was paying A.M. for her labor, whether M. Evans was properly accounting for A.M.’s federal benefits, why A.M. was not receiving any therapeutic services or medical or dental care, or why A.M. was kept isolated without any opportunity to socialize with others. See Complaint ¶ 99, at 26. APS’ investigation consisted solely of interviews with M. Evans and/or other non-disabled persons, “rather than engaging in any meaningful conversation with [A.M.] concerning her condition or circumstances .... ” Complaint ¶ 99, at 26.
In or about October, 2004, APS received allegations that the M. Evans and John Evans — M. Evans’ husband — were physically abusing and exploiting A.M. See Complaint ¶ 100, at 26. APS received a ■report that M. Evans and J. Evans “were taking Plaintiffs social security money but were not caring for her, and that Plaintiff was emotionally abused.” Complaint ¶ 100, at 26. The allegations also included abuse against J.P. See Complaint ¶ 100, at 26. ■ APS concluded that M. Evans and J. Evans had emotionally abused A.M., and stated that its report would be forwarded to the DOH and to law enforcement. See Complaint ¶ 100, at 26. The case remained open for eighteen months, but was ultimately closed as unsubstantiated, because APS found the report to be “malicious.” Complaint ¶ 101,' at 26-27. Again, APS did not engage in any meaningful conversation with A.M. before it closed its investigation. See Complaint ¶ 101, at 27.
In 2006 or 2007, “the Governor’s investigation identified AM and JP as two of the former Training School resident [sic] who had been illegally discharged from the Training School.” Complaint ¶ 102, at 27. In March, 2008, “more than four years after DOH learned of the plight of former ■Training School residents, the DOH investigated Plaintiffs circumstances” as part of the Governor’s investigation. Complaint ¶ 106, at 28. The DOH limited its investigation, however, to an interview of M. Evans — it did not take into account the prior allegations of abuse, interview A.M., or conduct an independent investigation of A.M.’s circumstances. See Complaint ¶ 106, at 28. That same month, Adult Protective Services in Grant County, New Mexico, also investigated A.M.’s circumstances after a caseworker at Fort Bay-nard reported that M. Evans was physically and emotionally abusing A.M. See Complaint ¶ 106, at 28. APS acknowledged that: (i) A.M. was developmentally disabled; (ii) A.M. had expressed fear of M. Evans; (iii) a psychiatrist had recommended that a guardian be appointed for A.M.; (iv) M. Evans’ residence was an unlicensed facility; (v) A.M. had not seen a primary care physician in at least five years; and (vi) M. Evans never applied for disability benefits for A.M. See Complaint ¶ 108, at 28. Nonetheless, APS found the report unsubstantiated, declined to pursue a guardianship for A.M., and closed the report. See Complaint ¶ 108, at 28. The DOH did not, as part of its investigation, engage in meaningful conversation with A.M. concerning her condition or circumstances. See Complaint ¶ 108, at 28.
In December, 2008, the DOH began a new investigation or re-opened its prior investigation into A.M.’s circumstances. See Complaint ¶ 110, at 29. The DOH referred to M. Evans as A.M.’s “guardian,” despite clear indications in A.M.’s file that M. Evans was never appointed her guardian. Complaint ¶ 110, at 29. The DOH continued to “interact exclusively or primarily with Mary Evans” during its investigation. Complaint ¶ 110, at 29. The DOH did not consider the prior allegations of abuse, interview A.M., or independently investigate A.M.’s circumstances. See Complaint ¶ 110, at 29.' The DOH’s policy and practice of deferring to caregivers rather than interacting with the disabled individuals themselves or otherwise independently investigating aftercare residents’ circumstances continued into 2009. See Complaint ¶ 110, at 29.
In June, 2009, Tom Roach, an ALTSD employee, prepared a report for the ALTSD and the DOH regarding A.M. and J.P. See Complaint ¶ 111, at '29. Roach stated that M. Evans was managing A.M.’s and J.P.’s care in exchange for payments for room and board. See Complaint ¶ 111, at 29-30. Roach stated that M. Evans had legal authority to make decisions for A.M. See Complaint ¶ 111, at 30. Roach reported that A.M. was “happy in her home” and was “getting all the care she needs from Ms. Evans.” Complaint ¶ 111, at 30 (internal quotation marks omitted). He also noted that “one recent APS referral for exploitation (04/06) was found to be malicious and unsubstantiated.” Complaint ¶ 111, at 30 (internal quotation marks omitted). Roach limited his investigation to an interview of M. Evans — he did not take into account prior allegations of abuse, interview A.M. or J.P., or independently investigate J.P.’s or A.M.’s circumstances. See Complaint ¶ 112, at 30. The State Agency Defendants “did nothing to assist AM or JP.” Complaint ¶ 113, at 30. The State Agency Defendants never sought a guardian, conservator, or representative payee for A.M., nor arranged for her to receive therapeutic services. See Complaint ¶ 113, at 30.
PROCEDURAL BACKGROUND
A.M. alleges seven claims in her Complaint: (i) a Fourteenth Amendment claim against the Individual DOH Defendants for violating her substantive and procedural due process rights, see Complaint ¶¶ 126-40, at 32-36; (ii) a First Amendment claim against the Individual DOH Defendants for violating her rights to freedom of association and court access, see Complaint ¶¶ 141-48, at 36-37; (iii) a Fourth Amendment claim against the Individual DOH Defendants for violating her right to be free from unlawful seizures, see Complaint ¶¶ 149-155, at 37-38; (iv) a Thirteenth Amendment claim against the Individual DOH Defendants for violating her right to be free from involuntary servitude, see Complaint ¶¶ 156-64, at 38-39; (v) a claim against the DOH Defendants for violating § 504 of the Rehabilitation Act, 29 U.S.C. § 794, see Complaint ¶¶ 165-71, at 39-40; (vi) a claim against the DOH Defendants for violating the Medicaid Act, 42 U.S.C. § 1396 et seq., see Complaint ¶¶ 172-80, at 41-43; and (vii) claims against the ALTSD and the APS for violating § 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-34 (“ADA”), and the regulations promulgated thereunder, 28 C.F.R. Ch. 1, pt. 35, see Complaint ¶¶ 181-87, at 43-45.
Regarding A.M.’s claim that the Individual DOH Defendants violated her Fourteenth Amendment rights to substantive due-process, A.M. alleges that she has a constitutionally protected liberty interest' in her safety, adequate food, clothing, shelter, treatment, and freedom from undue restraint — including the right to receive treatment and services in the least restrictive appropriate placement. See Complaint ¶ 128, at 32-33. A.M. asserts that the Individual DOH Defendants had a duty — enforceable under the Fourteenth Amendment — to ensure the safe and proper disposition of adults with developmental disabilities within their custody and control. See Complaint ¶ 132, at 34. According to A.M., this duty includes: (i) not placing such persons in situations of greater danger, neglect, abuse, or exploitation than those from which the Individual DOH Defendants removed them in the first place; (ii) not enhancing the special dangers to which such persons were already subject; and (iii) monitoring and rescuing such persons from any special dangers to which the Individual DOH Defendants’ actions subject them. See Complaint ¶ 132, at 34.
A.M. contends that the Individual DOH Defendants knowingly, recklessly, or with deliberate indifference and callous disregard of A.M.’s rights, breached their affirmative duty to provide protection and supervision to A.M. by placing her with M. Evans, where she was subject to “neglect, abuse, and exploitation.” Complaint ¶¶ 131, 133, at 33. A.M. argues that the Individual DOH Defendants substantially departed from accepted professional judgment, practice, or standards in their decisions regarding A.M.’s placement, monitoring, supervision, and protection while A.M. was with M. Evans. See Complaint ¶ 131, at 34. In A.M.’s view, the Individual DOH Defendants’ conduct shocks a federal judge’s conscience. See Complaint ¶ 131, at 34.
1. The MTD.
The Individual DOH Defendants filed the MTD on March 6, 2014. See MTD at 1. In the MTD, the Individual DOH Defendants ask the Court to dismiss A.M.’s substantive due-process claims. See MTD 1 at 2. The Individual DOH Defendants explain that state actors generally cannot be held liable for third parties’ acts. See MTD at 7 (citations omitted). The Individual DOH Defendants state that there are two exceptions to this rule: (i) the special-relationship exception; and (ii) the state-created danger exception-. Seet MTD at 7. The Individual DOH Defendants argue that they are entitled to qualified immunity, because neither of these exceptions were clearly established in 1979. See MTD at 7-12.
First, the Individual DOH Defendants contend that the special-relationship exception was not clearly established in 1979. See MTD at 8-10. The Individual DOH Defendants point out that, in Schwartz v. Booker, 702 F.3d 573 (10th Cir.2012), the United States Court of Appeals for the Tenth Circuit recognized that the special-relationship doctrine originated in the Supreme Court of the United States’ decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (“DeShaney ”). MTD at 8 (citing Schwartz v. Booker, 702 F.3d at 580). In DeShaney, the Individual DOH Defendants explain, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court, stated that, “when the State takes a person into its custody and holds him there against his will, the Constitution imposed upon it a corresponding duty to assume some responsibility for his safety and general well-being.” MTD at 8 (citing DeShaney, 489 U.S. at 189,109 S.Ct. 998). The Individual DOH Defendants say that the Tenth Circuit has acknowledged that, although the Supreme Court indicated in DeShaney that foster care children might have substantive due-process rights, the earliest case from either the Tenth Circuit or the Supreme Court that explicitly recognized such rights is Yvonne L. ex rel. Lewis v. New Mexico Department of Human Services, 959 F.2d 888 (10th Cir.1992). See MTD at 8 (citing Schwartz v. Booker, 702 F.3d at 573). The Individual DOH Defendants assert that, moreover, Hilliard v. City & County of Denver, 930 F.2d 1516 (10th Cir.1991), indicates that, the “law regarding abandoning a person who is not physically in state custody was not clearly established even by the late 1980s.” MTD at 9. The Individual DOH Defendants explain:
In Hilliard, the plaintiff was a passenger in a car. The drive of the car was arrested and taken into custody. Because the passenger was too intoxicated to drive, the care in which she was riding was impounded and she was left in a high crime area where she was subsequently raped. The Tenth Circuit held that “it was not clearly established in 1988 that someone whose person was not under some degree of physical control by the state ... would have a clearly established, constitutionally protected liberty interest.”
MTD at 9. The Individual DOH Defendants say that, accordingly, A.M.’s substantive due-process rights were not clearly established when she was discharged from Fort Stanton and placed at the Homestead House in 1979. See MTD at 9.
Second, the Individual DOH Defendants argue that, in Uhlrig v. Harder, 64 F.3d 567 (10th Cir.1995), the Tenth Circuit explained that “the seed for the ‘danger creation’ theory was not even planted until the Supreme Court issued its decision in DeShaney -” MTD at 10-11 (citing Uhlrig v. Harder, 64 F.3d at 573 n. 7). The Individual DOH Defendants assert that, consequently, the danger-creation exception was not clearly established in 1979. See MTD at 11.
The Individual DOH Defendants argue that, even if either the special-relationship exception or the danger-creation exception was clearly established in 1979, they are still entitled to qualified immunity, because they relied on a state district court order that, in their view, authorized them to transfer A.M. from Fort Stanton to the Homestead House. See MTD at 11-12. The Individual DOH Defendants contend that the Court may apply qualified immunity based on “extraordinary circumstances” — such as “reliance on the advice of counsel or on a court order that prevented the official from knowing that his/ her actions were unconstitutional such that he/she should not be imputed with knowledge of a clearly established right.” MTD at 11 (citing Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir.2006) (internal quotation marks omitted)). The Individual DOH Defendants point out that A.M. was discharged to the Homestead House pursuant to “State District Court Order No. 1/387-388 filed on October 17,1979 in Case No. CV-SQ-00095-79, Twelfth Judicial District, County of Lincoln.” MTD at 11. The Individual DOH Defendants urge that, if a state district court judge authorized A.M.’s transfer to the Homestead House, the Individual DOH Defendants “could not possibly be imputed with knowledge that they were violating a constitutional right.” MTD at 12. In the Individual DOH Defendants’ view, therefore, qualified immunity should apply. See MTD at 12.
2. The Response.
A.M. responded to the MTD on May 9, 2014. See Plaintiffs Response to DOH Defendants’ Motion to Dismiss Plaintiffs Substantive Due Process Claims on the Basis of Qualified Immunity, filed May 9, 2014 (Doc. 38) (“Response”). In the Response, A.M. asks the Court to deny the MTD for five reasons. See Response passim. First, A.M. contends that, in a similar case, the Defendants “previously litigated and. lost the question whether they are entitled to the affirmative defense of qualified immunity from Plaintiffs Substantive Due Process claims.” Response at 7. According to A.M., in J.M. v. New Mexico Department of Health, No. CIV 07-0604 RB/ACT, the Honorable Robert C. Brack, United States District Judge for the District of New Mexico, denied the Defendants’ motion to dismiss the plaintiffs substantive due-process claims on the basis of qualified immunity. See Response at 7-9 (citing J.M. v. N.M. Dep’t of Health, No. CIV 07-0604 RB/ACT, Memorandum Opinion and Order, filed Jan. 7, 2009 (Doc. 198)(“Jan. 7, 2009, MOO”)). A.M. states that Judge Brack wrote:
Substantive due process arises from the Fourteenth Amendment’s protections against governmental deprivations “without due process of law.” U.S. Const, amend. XIV, § 1. The Supreme Court has emphasized that “only .the most egregious official conduct can be said to be arbitrary in the constitutional sense.” County of Sacramento v. Lewis, 523 U.S. 838, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(quotations omitted). The constitutional protections of substantive due process only apply to transgressions above and beyond those covered by the ordinary civil tort system; the two are not coterminous Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir.2008) ....
State officials are generally not required to provide care and protection to individuals. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 201, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). However, when the state assumes control over an individual, a special relationship is triggered that creates an affirmative duty to provide protection to the individual. Id. at 199-200, 109 S.Ct. 998. In this case, JM and JE were placed in state custody by Court Order, which created a special relationship that required Defendants, state officials with responsibility for JM and JE, to affirmatively protect them from harm. Id,. Furthermore, because JM and JE have developmental disabilities, the Defendants, as state officials with responsibility for JM and JE, had a greater duty to provide affirmative care to them. See Youngberg v. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
The Supreme Court has instructed that a “professional judgment” standard is to be applied to the substantive due process claims of mentally disabled individuals in state custody. Indeed, state officials are shielded from liability unless a mentally disabled plaintiff can demonstrate ' that the state official failed to exercise professional judgment and that a failure to satisfy the normal professional standards is not justified by budgetary constraints. Id. at 323, 102 S.Ct. 2452. Failure to exercise professional judgment requires more than mere negligence; ’instead, it requires an abdication of professional responsibility. Yvonne L. v. New Mexico Dept. of Human Services, 959 F.2d 883, 894 (1992). Additionally, such an abdication of responsibility must be sufficient to “shock the conscience.” County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708. In relation to the placement of developmentally disabled individuals in state custody into third party settings, the standard is similar to that of the placement of children into a foster care setting. See Yvonne L., 959 F.2d at 893-94. Only if state officials place a mentally disabled individual in a setting they know to be dangerous or otherwise unfit, without justification based either on financial constraints or on considerations of professional judgment, do they expose themselves to liability in damages. See Youngberg, 457 U.S. at 322-23, 102 S.Ct. 2452; Yvonne L., 959 F.2d at 893-94.
Plaintiffs’ substantive due process claims are based on allegations that Defendants were recklessly indifferent in their failure to protect and care for JM and JE. Plaintiffs also allege that Defendants’ failure to provide JM and JE with the care and services they required as developmentally disabled individuals constituted an unjustified abdication of professional responsibility. Plaintiffs further allege that Defendants placed JM and JE in settings that were dangerous and otherwise unfit by committing them to the custody of private third party business [sic], without judicial authorization, knowing that JM and JE would be exploited economically and deprived of the care and protection they required. Finally, Plaintiffs allege that Defendants, with reckless indifference, abdicated their professional responsibility by conspiring to deceive the state court regarding JM and JE’s welfare and capacity to function outside of state custody, eventually leaving JM and JE to be exploited without anyone to care for them or protect their legal rights. The Court finds that these allegations, which the Court must accept as true, shock the conscience and are sufficient to state a claim against Defendants Sandoval, Adams, Mateju, and Does 1-10, in their individual capacities, pursuant to § 1983, for violation of JM and JE’s substantive due process rights. County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708.
Part of the Court’s task, in determining whether Defendants are entitled to qualified immunity in this case, is to identify the legal contours of the doctrine of substantive due process as applied to mentally disabled individuals in state custody during the 1970s. Harlow, 457 U.S. at 818, 102 S.Ct. 2727. The Supreme Court first articulated the legal contours of the substantive due process rights of mentally disabled individuals in state custody in 1982 in its landmark opinion in the Youngberg v. Romeo case. 457 U.S. at 307, 102 S.Ct. 2452. Prior to 1982, the legal contours of the substantive due process rights of mentally disabled individuals in state custody included the right to reasonable safety, adequate food, shelter, clothing and medical care. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (noting that failure to provide medical care can be a violation of a prisoner’s constitutional rights); Youngberg, 457 U.S. at 324, 102 S.Ct. 2452 (noting that the state conceded a duty to provide adequate food, shelter, clothing and medical care and that the Supreme Court found an unquestionable duty to provide reasonable safety).
Defendants’ alleged conduct allegedly deprived Plaintiffs JM and JE of their substantive due process rights to reasonable safety and essential medical care. See Youngberg, 457 U.S. at 324, 102 S.Ct. 2452; Estelle, 429 U.S. at 104-05, 97 S.Ct. 285. The legal contours of the doctrine of substantive due process were sufficiently clear in the 1970s to give state officials a fair warning that it violated federal law to recklessly endanger unlicensed third party businesses, where they would be economically ex-plotted and deprived of essential medical care. See Harlow, 457 U.S. at 818, 102 S.Ct. 2727; Youngberg, 457 U.S. at 324, 102 S.Ct. 2452; Estelle, 429 U.S. at 104-05, 97 S.Ct. 285. Indeed, based on Plaintiffs’ allegations, which the Court must accept as true, Defendants would have had fair warning that their alleged actions constituted violations of federal law. See David, 101 F.3d at 1352; County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708; Youngberg, 457 U.S. at 324, 102 S.Ct. 2452; Estelle, 429 U.S. at 104-05, 97 S.Ct. 285. Defendants Sandoval, Adams, Mateju, and Does 1-10, therefore, are not entitled to qualified immunity to Plaintiffs’ substantive due process claims.
Response at 8-10 (quoting Jan. 7, 2009, MOO at 4-8)(alterations in Response not in Jan. 7, 2009, MOO)(internal quotation marks omitted). A.M. asserts: “While Defendants did not appeal Judge Brack’s ruling and therefore there is no collateral estoppel effect, Plaintiff submits that Judge Brack’s opinion, based on a similar set of facts, is persuasive authority.” Response at 10.
Second, A.M. contends that the Defendants’ legal custody of her gave rise to a special relationship that entitled A.M. to substantive due-process protections. See Response at 10-19. A.M. says that there is no evidence of a judicial order rescinding her commitment to the State’s legal and physical custody. See Response at 10. A.M. asserts that the Training School continued to exercise oversight over her during her placement on aftercare, and that the Defendants then “unilaterally” decided that she was no longer the State’s responsibility and discharged her from their care with only a “note to the file.” Response at 10 (internal quotation marks omitted). While A.M. acknowledges that there was a judicial order, she argues that the order did not discharge her from the Training School’s legal custody and gave the Training School narrow authority to transfer her physical custody to “a community placement for developmentally disabled persons.” Response at 10 (internal quotation marks omitted). A.M. points out that she is still the state’s ward. See Response at 11. In A.M.’s view, therefore, she was and remains entitled to Youngberg v. Romeo’s substantive due-process protections. See Response at 11.
A.M. says that, in Youngberg v. Romeo, the Supreme Court held that developmentally disabled individuals involuntarily committed to state institutions have substantive due-process rights to safety and security. See Response at 13 (citing Youngberg v. Romeo, 457 U.S. at 315, 102 S.Ct. 2452). According to A.M., the Honorable Lewis F. Powell, then-Associate Justice of the Supreme Court, explained in Youngberg v. Romeo that the Supreme Court’s decisions in the 1970s had recognized the right to reasonable safety — one of which, Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), clearly established that right with respect to prison inmates in 1976. See Response at 13 (citing Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. 285). A.M. states that Justice Powell wrote: “ ‘If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, ... it must be unconstitutional to confíne the involuntarily committed — who may not be punished at all— in unsafe conditions.’ ” Response at 14 (quoting Youngberg v. Romeo, 457 U.S. at 315, 102 S.Ct. 2452). A.M. argues that “institutionalization thus creates the quintessential ‘special relationship.’ ” Response at 14.
A.M. contends that, in Milonas v. Williams, 691 F.2d 931 (10th Cir.1982), the Honorable Robert H. McWilliams, United States Circuit Judge for the Tenth Circuit, “spelled out the substantive due process rights of children who had been remitted by the state to a private reform school— including the right of paramount importance, to be reasonably safe from harm.” Response at 14 (citation omitted)(internal quotation marks omitted). A.M. stated that, more recently, in Johnson v. Holmes, 455 F.3d 1133 (10th Cir.2006), the Tenth Circuit reversed the Court’s award of qualified immunity to a social worker who had allegedly failed “‘to properly discharge her custodial obligations of investigation and oversight ] ... during the period between placement [of the abused child] for adoption and the time [the] adoptive decree was entered.’ ” Response at 14 (quoting Johnson v. Holmes, 455 F.3d at 1135, 1138) (alterations in Response but not in source). According to A.M., in an opinion that the Honorable Carlos F. Lucero, United States Circuit Judge for the Tenth Circuit, authored, and Judges Baldock and McConnell joined, the Tenth Circuit held that, although the State had only legal custody of the child, under the special-relationship exception, the jury “should have been permitted to consider whether the social worker had done enough to protect the child.” Response at 15 (Johnson v. Holmes, 455 F.3d at 1144-45) (internal quotation marks omitted).
A.M. also points out that other United States Courts of Appeals have found that a special relationship arises between the state and persons subject to its legal custody even in the absence of physical custody. See Response at 14 (citing Smith v. District of Columbia, 413 F.3d 86, 89-91, 94-97 (D.C.Cir.2005) (Tatel, J., joined by Edwards, J.)(ruling that state had duty to protect juvenile committed to state’s legal custody but living in private housing, “[because the [state], rather than [the boy’s] family, had primary legal control over him, [and therefore] had legal responsibility for his daily care”)(alterations in original)(internal quotation marks omitted)); Camp v. Gregory, 67 F.3d 1286, 1295 (7th Cir.1995) (Rovner, J., joined by Coffey and Foreman, JJ.)(“[T]o the extent [that] ... the [state] bore a duty for Anthony’s safety when it was appointed [as his] guardian, that duty did not terminate when Anthony was place again with [his aunt].”)(alterations in original)(internal quotation marks omitted); Thomas S. v. Morrow, 781 F.2d 367, 374 (4th Cir.1986) (Butzner, J., joined by Hall and Winter, JJ.)(rejecting the argument that “Youngberg is inapplicable because [the plaintiff] ... lives in the community and is not subject to the control of the state[ ]”) (alterations in original)(internal quotation marks omitted). In support of this argument, A.M. also cites Thomas S. v. Morrow, 601 F.Supp. 1055 (D.N.C. 1984) (McMillan, J.). See Response at 11. According to A.M., Thomas S. was discharged from a state institution, but was never discharged from the State’s custody. See Response at 11 (citation omitted). A.M. says that the Honorable James B. McMillan, United States District Judge for the District of North Carolina, concluded that Thomas S. was entitled to substantive due-process protections, because he was subject to restrictions similar to the institutionalized residents in Youngberg v. Romeo. See Response at 11 (citation omitted). A.M. states:
As the Fourth Circuit held on appeal in Thomas S., the district court’s reasoning was in keeping with the framework of Youngberg. See Thomas S. v. Morrow, 781 F.2d 367, 374 (4th Cir.1986). Specifically, Youngberg does not stand for the proposition that institutionalized persons are entitled to habilitation; nor does it stand for the converse — that non-institutionalized persons are not entitled to habilitation. Thus “the liberty interests protected in Youngberg did not arise because of the institutional confinement. Rather, the Court’s premise in Youngberg was that involuntary commitment and other lawful conferment ‘do not extinguish’ pre-existing liberty interests in safety and freedom from bodily restraint.” Id., quoting Youngberg, 457 U.S. at 315, 102 S.Ct. 2452 (emphasis added). Thus the institution could not extinguish Thomas S.’s liberty interest by moving him from one restraining facility to another, just as Defendants here could not wash their hands of Plaintiff by the simple device of stranding her with a third party.
Although during the course of this litigation, plaintiffs lodging has changed from a state hospital to a night care unit at a detoxification center, his status has not changed. He remains a legally incompetent adult who is a ward of a guardian appointed by the state. He did not choose to live at the detoxification center, and he is neither an alcoholic nor a drug addict. Youngberg does not suggest that an incompetent person sheds the basic liberty interests that the Court identified when state officials and his guardian move him from one facility to another. Id. at 374, 102 S.Ct. 2452.
Response at 11-12.
In AM.’s view, these cases demonstrate that “physical custody is not essential to the existence of a special relationship.” Response at 15. Instead, A.M. notes, such a relationship is established whenever “the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.” Response at 15 (quoting Uhlrig v. Harder, 64 F.3d at 572) (internal quotation marks omitted). A.M. says that, therefore, “it should have been obvious from the day Youngberg was decided that a state could not avoid the responsibilities which that decision had placed on it merely by delegating custodial responsibility to irresponsible private persons.” Response at 15 (citing Yvonne L. ex rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d at 892) (internal quotation marks omitted).
A.M. argues that the Defendants’ responsibilities to individuals in state custody should have been obvious much earlier than Youngberg v. Romeo. See Response at 15. According to A.M., “Youngberg traced its lineage to cases holding that prisoners are entitled to reasonable safety” — cases that date back at least to the 1950s. See Response at 15 (citing Youngberg v. Romeo, 457 U.S. at 315-16, 102 S.Ct. 2452). According to A.M., in Young-berg v. Romeo, Justice Powell thought that extending substantive due-process protections from prisoners to involuntarily committed developmentally disabled individuals was “a matter of simple logic and justice,” because “if convicted criminals enjoyed a constitutional right to safe and humane conditions, no thinking person could believe that innocent persons with developmental disabilities ... deserve anything less.” Response 15 (citing Youngberg v. Romeo, 457 U.S. at 315-16, 102 S.Ct. 2452). A.M. asserts: “Nor was the Supreme Court the first federal court to make that connection.” Response at 15-16 (citing Spence v. Staras, 507 F.2d 554, 556 n. 1 (7th Cir.1974) (Pell, J., joined by Fairchild and Cummings, JJ.) (holding that a mental patient at a state hospital who was beaten to death by his fellow patients had a substantive due-process right to safety)).
Third, A.M. argues that M. Evans was acting under color of state law when she violated A.M.’s rights. See Response at 19-21. A.M. points out that New Mexico recognizes private group homes under state contract to provide services to developmental disabled persons as state actors for § 1983 purposes. See Response at 20 (citing LaBalbo v. Hymes, 1993-NMCA-010, 115 N.M. 314, 850 P.2d 1017 (Ct.App.1993)). According to A.M., the Defendants’ acts in facilitating M. Evans’ abuse and neglect of A.M. should, therefore, be judged by the standards in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A.M. says that, in Monell v. Department of Social Services, the Supreme Court stated that “Congress did not specifically provide [in § 1983] that A’s tort became B’s liability if B caused A to subject another to a tort.” Response at 20 (citing Monell v. Department of Social Services, 436 U.S. at 692, 98 S.Ct. 2018)(alterations in Response but not in souree)(internal quotation marks omitted). A.M. cites Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir.1989), in which the Third Circuit contrasted the defendants’ failure to protect a public school student from a teacher with a social worker’s failure to protect a child from his father. See Response at 21-22 (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d at 724). According to A.M., in an opinion that the Honorable Dolores K Sloviter, United States Circuit Judge for the Third Circuit, authored, and Judge Mansmann joined, the Third Circuit said: Response at 21 (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d at 724) (emphasis in original).
The principal distinction between De-Shaney’s situation and that of Stoneking is that DeShaney’s injuries resulted at the hands of a private actor, whereas Stoneking’s resulted from the actions of a state employee. The significance of the status of the perpetrator is referred to on numerous occasions in the DeSha-ney opinion. Not only is the Court’s statement of the holding in terms of the actor (“a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” 109 S.Ct. at 1004), but the analytic steps taken by the Court to reach that holding continuously take note of the status of the person responsible for the injuries.
Fourth, A.M. argues that, even if she was effectively discharged from the State’s legal custody and M. Evans is a private third party, the Defendants are liable under the danger-creation exception, because their “reckless actions directly caused or certainly increased the danger to Plaintiff.” Response at 21. According to A.M., to succeed under the danger-creation exception, a plaintiff must show: (i) that he or she was a member of a limited and specifically definable group; (ii) that the group was subject to an obvious or known risk of serious, immediate, and proximate harm; (iii) that the defendant’s conduct increased the risk; (iv) that the defendant acted recklessly in conscious disregard of that risk; and (v) that such conduct, when viewed in total, is conscious shocking. See Response at 21 (citing Armijo ex rel. Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th Cir.1998)).
A.M. argues that the Defendants designed a plan to force Training School residents into third-party placements without any plan how their needs would be met or their bodily integrity would be protected once they were “in the hands of strangers.” Response at 21. In AM.’s view, these allegations and the reasonable inferences drawn therefrom support the first element of a danger-creation claim. See Response at 21. A.M. contends that the Tenth Circuit has explicitly rejected the view that “reckless conduct must be directed at a particular victim for it to be deliberate.” Response at 21 (quoting Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1495 (10th Cir,1992))(emphasis in original)(internal quotation marks omitted). Instead, according to A.M., “the defendant’s reckless conduct may be considered to be directed toward the plaintiff if the plaintiff is closely and immediately tied to the perceived substantial risk.” Response at 21-22 (quoting Medina v. City & Cnty. of Denver, 960 F.2d at 1495)(internal quotation marks omitted).
A.M. asserts that A.M. and similarly situated Training School residents were subject to an obvious or known risk of serious, immediate, and proximate harm. See Response at 22. A.M. contends that the obvious risk of harm was that M. Evans would exploit her rather than provide necessary services to treat her developmental disabilities. See Response at 22. According to A.M., common sense dictated that, “by designing a plan to give Plaintiff to anyone who would accept her, in a locale far from Fort Stanton and without any oversight by the court or by ... the Training School, Defendants were inviting the physical neglect and financial exploitation of Plaintiff.” Response at 22.
A.M. argues that the Defendants also increased the risk of harm to A.M. when they “change[d] the status quo.” Response at 22. A.M. explains that she was a patient at a State-run training hospital with licensed professionals providing therapeutic services, subject to mandatory periodic judicial reviews of her welfare and best interests. See Response at 22. A.M. notes that she was then moved to a location where she was denied basic services, financially exploited, and “left largely to fend for herself.” Response at 22 (citing Medina v. City & Cnty. of Denver, 960 F.2d at 1495 (holding that an increased risk of harm depends on whether the individual defendant changed the status quo)). A.M. states that there are two ways that a defendant might change the status quo sufficiently to satisfy the third element of the danger-creation exception. See Response at 22. According to A.M., the first way is by cutting off aid, discouraging others from rendering aid, or “removing what would otherwise be safety valves.” Response at 23 (quoting Currier v. Doran, 242 F.3d 905, 922 (10th Cir.2001)) (internal quotation marks omitted). A.M. asserts that, like in Currier v. Doran, the Defendants’ plan to transfer A.M.’s custody to M. Evans was designed to avoid m