Herrera v. Los Angeles Unified School District, No. 20-55054 (9th Cir. 2021)
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Erick and his tenth-grade classmates attended an end-of-year party at a park. Erick told school aide Lopez that he was going to the park’s swimming pool, which was monitored by three lifeguards. Lopez did not enter the pool area but watched Erick from a designated observation area, as required by pool rules. Lopez allegedly knew that Erick had asthma and could not swim. Lopez saw Erick leave the pool and enter the locker area. He left the observation deck to wait for Erick at the locker room exit. Unbeknownst to Lopez, Erick returned to the pool. Five minutes later, Lopez began searching for Erick. He found lifeguards trying unsuccessfully to resuscitate Erick, who had drowned.
Erick’s parents sued Lopez, the school district, and others for negligence and wrongful death, with a 42 U.S.C. 1983 claim for deprivation of familial relationship. The Ninth Circuit affirmed summary judgment for the defendants. The Due Process Clause generally does not provide an affirmative right to government aid, but a state’s failure to protect may give rise to a section 1983 claim under the state-created danger exception, which applies when the state places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger. The court applied a subjective standard; because the aide was unaware that Erick was in the pool area when he drowned, the defendants cannot be liable.
Court Description: Civil Rights. The panel affirmed the district court’s order granting summary judgment to defendants on a claim for deprivation of familial relationship, brought under 42 U.S.C. § 1983 by the parents of a disabled high school student who drowned while on a field trip to a pool. The panel held that the Fourteenth Amendment’s Due Process Clause generally does not provide an affirmative right to government aid, but a state’s failure to protect may give rise to a § 1983 claim under the state-created danger exception, which applies when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger. The panel held that following Kingsley v. Hendrickson, 576 U.S. 389 (2015), and Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc), an objective deliberate-indifference standard has been applied in excessive force and detention cases, but this court has continued to apply a subjective standard in all state-created danger claims and in non-detainee failure-to-protect claims. The panel therefore applied a subjective standard. Plaintiffs contended that a school aide was deliberately indifferent because he recognized an unreasonable risk to their son and intended to expose him to that risk without regard for the consequences when (1) the boy returned to the pool after entering the locker room area and (2) earlier in the day when the aide allowed the boy to go to the pool, did not HERRERA V. LAUSD 3 enter the pool to watch him, and lost sight of him for at least a few minutes. The panel held that these facts, viewed in the light most favorable to plaintiffs, did not constitute deliberate indifference under the subjective test. The panel addressed additional claims in an accompanying memorandum disposition.
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