Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. 3:08-cv-05548-RBL
The opinion of the court was delivered by: B. Fletcher, Circuit Judge:
Argued and Submitted November 5, 2010-Seattle, Washington
Before: Betty B. Fletcher and Jay S. Bybee, Circuit Judges, and Claudia Wilken, District Judge.*fn1
Opinion by Judge B. Fletcher; Partial Concurrence and Partial Dissent by Judge Bybee
Appellants Mary LaFond ("LaFond") and Norman Webster ("Webster") (collectively "Appellants"), relying on qualified immunity, appeal the district court's order denying their motion for summary judgment. Appellee Crystal Ammons ("Ammons") sued LaFond and Webster under 42 U.S.C. § 1983 for violating her Fourteenth Amendment substantive due process right to safe conditions while in the custody of a state-run mental institution. The district court denied Appellants' motion for summary judgment, rejecting both LaFond's and Webster's claims of qualified immunity. It concluded that the record, when read in the light most favorable to Ammons, supported the claim that Appellants failed to exercise professional judgment with respect to Ammons's safety. Appellants timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.
The events in this case took place at the Washington State Department of Social and Health Services's ("DSHS") Child Study and Treatment Center ("CSTC"). The CSTC is a residential psychiatric hospital for severely emotionally and behaviorally disturbed children, which, in 2001, served approximately forty-eight inpatients. CSTC's residents are both patients at CSTC and in its custody.
Appellant Mary LaFond was CSTC's Chief Executive Officer from 1995 to the end of March 2003. Appellant Norm Webster worked intermittently at CSTC in various capacities between 1970 and 1990. He then served as the Director of Nursing Services from January to April 2003.*fn2 In April 2003, upon LaFond's departure from CSTC, Webster succeeded her as CSTC's CEO.
On February 10, 2000, during LaFond's tenure as CEO, she received a letter from CSTC Director of Nursing Services, Mary Claire Rutherford, which raised, among other things, concerns about improper clinical staff handling of reported sexual incidents in the resident cottages.
In early 2001, also during LaFond's tenure, a patient at CSTC ("Resident A") alleged that a male staff member named Anthony Grant had sexually molested her. These allegations were reported to Child Protective Services ("CPS") and, according to LaFond, Grant's access to the female patients was restricted during the resulting investigation. CPS conducted interviews with Resident A, Grant, other staff, and at least one patient. Resident A repeated to the CPS investigator that Grant had molested her. While later speaking with Dr. Jan Bacon, the resident psychologist, however, she recanted her accusation, stating at the same time that she was upset about losing contact with Grant. After LaFond informed the CPS investigator that Resident A had recanted, CPS concluded that the allegations were "unfounded" and closed the investigation.
In October 2001, after CPS closed its investigation of Grant, Crystal Ammons was admitted to CSTC. Ammons was a thirteen-year-old girl who had become a dependent of the State of Washington at the age of four. Prior to her placement at CSTC, Ammons had been raised by her maternal grandmother and then by an aunt and uncle; she was removed from her aunt and uncle's care after she reported that her uncle had sexually abused her. Ammons's uncle was ultimately convicted of molesting her. She was moved into foster care in March 1995, at age seven. Between the ages of seven and eighteen, Ammons was placed in various residential care facilities and psychiatric hospitals, one of which was CSTC.*fn3
In October 2001, when she began residing at CSTC, Ammons was in the foster care of social worker Corrie Tienhaara ("Tienhaara") and her family.
While Ammons was at CSTC, she stayed in regular contact with Tienhaara, who became concerned about Ammons's preoccupation and seemingly close relationship with Grant. Tienhaara's concerns grew upon learning that Grant had given Ammons gifts, including a stuffed animal and compact discs. Tienhaara visited CSTC for the first time in November 2002, at which time she communicated her concerns about Grant to Ilys Hernandez ("Hernandez"), the head of Ammons's cottage at CSTC. Tienhaara voiced her concerns in a straightforward manner, and she specifically requested that Grant not be permitted to be alone with Ammons. In response, Hernandez told her that Grant was never alone with Ammons and that CSTC had a strict policy against male counselors being alone with female patients. Hernandez did not reveal that any other allegations of abuse had been made against Grant.
In March 2003, Hernandez accompanied Ammons to Tienhaara's home in North Dakota, in preparation for her dis- charge from CSTC and her transition back into Tienhaara's family. There, Tienhaara repeated her concerns to Hernandez, and was again reassured that Grant and Ammons would not be alone together. In late March 2003, however, Tienhaara learned Ammons was scheduled to go on a one-on-one outing with Grant. When she called Hernandez to voice her objection, she was told that the facility "[wouldn't] go ahead and approve that."
Ammons's file reveals that, during her time at CSTC, the CSTC staff documented 188 incidents of Ammons's flirtatious behavior with male staff. The notes associated with her evaluations indicate that she had "boundary problems" with the staff, and they direct staff members to closely monitor her interactions specifically with male employees. Throughout the early part of 2003, before Ammons left the facility, it was further noted that Ammons had a "crush" on one of the male staff members, and that she was spending time with him alone and seeking out his attention.
Jessica Ramsey, a fellow patient at CSTC who was friends with Ammons, testified that Grant was "extremely flirtatious" with her and Ammons, and that their flirtatious interactions were apparent to Hernandez and Dr. Bacon. She further testified that it was obvious how infatuated Ammons was with Grant, but that no restrictions were ever placed on Grant's interactions with Ammons or Ramsey. Rather, according to Ramsey, the frequency of Grant's interactions with her and Ammons continued to escalate. Ramsey stated that she and Ammons would pass notes through other staff members to Grant so often that "the night shift was getting mad" at her. She also testified that she and Ammons had "entire sections on the walls of [their] room (where any staff member could see them) . . . dedicated to Mr. Grant," where they posted flirtatious signs such as "Hottie Alert Tony," and "Tony's Finer than Silk."
According to Ramsey, Grant gave Ramsey and Ammons pictures of himself, letters, stuffed animals for Valentine's Day, music CDs and, at least to Ramsey, his personal cell phone number. On one occasion, Grant painted Ramsey's nails. Ramsey testified that she was often alone with Grant in the cottage's TV room or in her "pod," a part of the cottage with female bedrooms, including hers. She further testified that she "once or twice" saw Grant and Ammons leave through the pod door to go to the "canteen," a part of the building with a soda machine and a snack machine.
On April 18, 2003, Ammons was discharged from CSTC and went to live in North Dakota with Tienhaara and her family. After Ammons left CSTC, Tienhaara discovered that she and Grant were corresponding via e-mail. These e-mails were extremely flirtatious and revealed that Ammons and Grant were romantically involved. For example, Ammons signed her e-mails "Crystal Grant," and Grant once wrote, "Wanna go to the canteen tonight? ;) (I wish!)." Shortly after Tienhaara discovered the e-mails, Ammons told her that Ammons and Grant had been sexually involved from January 2003 until she left CSTC. The relationship Ammons described included sexual intercourse and other types of sexual activity that took place on multiple occasions in the "canteen area." At the time this sexual relationship began, Grant was twenty-nine years old, and Ammons was fourteen. Tienhaara contacted CSTC about this molestation, and CSTC placed Grant on leave. After investigating the matter for several months, CSTC concluded that Grant had, while on duty, engaged in sexual intercourse with Ammons during her residence at the facility. CSTC eventually fired Grant.*fn4
Ammons sued DSHS, LaFond, and Webster in Pierce County Superior Court, alleging that (1) DSHS was negligent under state law for failing to protect her from the "known dangerous proclivities of Anthony Grant," and (2) LaFond and Webster were deliberately indifferent to Ammons's safety, in violation of 42 U.S.C. § 1983. The case was removed to federal district court. After the exchange of some discovery, Ammons moved for summary judgment. Appellants cross-moved for the same, arguing that they were entitled to qualified immunity.
The district court denied all parties' motions for summary judgment, finding that issues of material fact remained unresolved. The court held that LaFond and Webster were not, under Neely v. Feinstein, 50 F.3d 1502 (9th Cir. 1995), entitled as a matter of law to qualified immunity. The court reasoned that, viewed in the light most favorable to Ammons, the evidence established that LaFond and Webster had "numerous warnings" of the risk posed to Ammons by Grant, and that Appellants "did literally nothing" in response to those warnings. LaFond and Webster timely appealed. The issue of whether they are entitled to qualified immunity is now before us.
We first resolve whether we have jurisdiction to hear this interlocutory appeal. "[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This is because "[w]hen summary judgment is denied to a defendant who urges that qualified immunity shelters her from suit, the court's order finally and conclusively disposes of the defendant's claim of right not to stand trial." Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (citing Mitchell, 472 U.S. at 527) (internal quotation marks and alteration omitted). "[T]he appealable issue is a purely legal one: whether the facts alleged [ ]by the plaintiff . . . support a claim of violation of clearly established law." Mitchell, 472 U.S. at 528 n.9. Accordingly, "[o]ur jurisdiction in these matters generally is limited to questions of law and does not extend to claims in which the determination of qualified immunity depends on disputed issues of material fact." Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001); see also Ortiz, 131 S. Ct. at 891. "Where disputed facts exist, however, we can determine whether the denial of qualified immunity was appropriate by assuming that the version of the material facts asserted by the non-moving party is correct." Jeffers, 267 F.3d at 903 (citations omitted).
In this appeal, we are asked to resolve multiple issues of law, including the correct standard under which to assess alleged violations of Fourteenth Amendment substantive due process rights by state hospital administrators, and the extent to which this law is clearly established. We must also determine whether the facts alleged and shown by Ammons, some of which are in dispute, support a constitutional violation. Accordingly, we have jurisdiction to hear this appeal, and we evaluate Appellants' claims of qualified immunity by resolving all factual disputes in Ammons's favor. See id.
We review de novo a district court's denial of qualified immunity by summary judgment. Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007) (citing Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003)). In reviewing the denial of qualified immunity, we consider the "purely legal issue of whether facts alleged by the plaintiff support a claim of violation of clearly established law" such that appellants are not immune from suit. Lytle v. Wondrash, 182 F.3d 1083, 1086 (9th Cir. 1999) (internal citation and quotation marks omitted).
 Qualified immunity shields state officers from civil liability for damages unless (1) the facts alleged by the plaintiff establish a violation of the plaintiff 's constitutional rights; and (2) the constitutional right in question was "clearly established" when the defendant committed his alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815-16 (2009). Put another way, "[t]he principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law." Id. at 823. Courts are given the discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 818.
Here, it is difficult to assess whether the facts alleged by Ammons establish the alleged constitutional violation without setting forth the governing law. Therefore, we first examine the clearly established law with respect to the alleged Fourteenth Amendment violation, and then determine whether the facts before us support such a violation.
For a constitutional right to be "clearly established," "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, "in light of pre-existing law the unlawfulness must be apparent." Id.
A. The Constitutional Right
Although Ammons asserts in her complaint that Appellants violated her constitutional right to "equal protection, as well as [her] constitutionally protected right to procedural and due process of law," the alleged facts and her contention that LaFond and Webster were "deliberately indifferent" to her safety make clear that her § 1983 claim is based on her Fourteenth Amendment substantive due process right to safe con- ditions while involuntarily committed to the custody of a state actor.
 Involuntarily committed patients in state mental health hospitals have a Fourteenth Amendment due process right to be provided safe conditions by the hospital administrators. In Youngberg v. Romeo, 457 U.S. 307, 310 (1982), the Supreme Court was confronted with an involuntarily committed mental patient in a state hospital who alleged that, while at the hospital, he had been injured on numerous occasions "by his own violence and by the reactions of other residents to him." The patient, Romeo, sued three hospital administrators for failing to institute appropriate procedures to prevent the injuries they "knew, or should have known" Romeo was receiving, thereby violating Romeo's rights under the Fourteenth Amendment. Id. Noting that "the right to personal security constitutes an 'historic liberty interest' protected substantively by the Due Process Clause," the Court held that "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed - who may not be punished at all - in unsafe conditions." Id. at 315-16 (citations omitted).
 According to Youngberg, the Constitution requires that hospital officials, in order to protect a patient's right to safe conditions, exercise professional judgment. Id. at 321-22. The Court explained that liability may be imposed for failure to provide safe conditions "when the decision made by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323.*fn5 Youngberg, then, created a stan-dard whereby whether a hospital administrator has violated a patient's constitutional rights is determined by whether the administrator's conduct diverges from that of a reasonable professional. We refer to this as the "Youngberg professional judgment standard." In distinguishing this standard from the "deliberate indifference" standard used in Eighth Amendment cruel and unusual punishment cases, the Youngberg Court noted that "[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Id. at 321-22 (emphasis added). The Court approvingly cited the ...