Herrera v. Los Angeles Unified School Dist., No 20-55054 (9^th Cir., December 1, 2021) (J.Nelson) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/01/20-55054.pdf

School aide unknowingly allowing disabled high school student to enter pool attended by lifeguards did not rise to the level of subjective deliberate indifference to support 42 U.S.C. § 1983 claim

Plaintiffs' autistic 10^th grade son drowned on a field trip. Plaintiffs brought this negligence, wrongful death and 42 U.S.C. § 1983 claim against the school district, a school employee and the County of Los Angeles, for “deprivation of familial relationship.”  The United States District Court for the Central District of California  granted the defendant school defendants summary judgment and the United States Court of Appeals for the Ninth Circuit affirmed.

42 U.S.C. § 1983 allows plaintiffs to sue where a defendant has deprived him or her of a “constitutional right while acting under color of state law.” While the 14th Amendment's Due Process Clause in most cases does not create a right to aid from the government, the government's failure to protect from a government created danger may create such a right, if it can be shown the state affirmatively placed a plaintiff in danger by acting with “deliberate indifference” to a known and obvious danger. In excessive force and detention cases the “deliberate indifference” standard is an objective one. However, in most other cases where it is alleged the state created the danger a subjective standard is applied. Such is the case here.

Here plaintiffs' son Erick attended a school field trip for a year-end party at a park. While at the park Erick told the school aide, Lopez, that he was going to the park's swimming pool.  The pool was monitored by three lifeguards. Lopez watched Erick from a designated observation area as he entered the pool. Lopez knew that Erick had asthma and could not swim. Lopez saw Erick exit the pool and enter the locker room. Lopez then left the observation area and walked to the locker room exit awaiting Erick. Unbeknownst to Lopez, Erick returned to the pool. After five minutes, when Erick did not exit, Lopez began looking for him only to find lifeguards trying unsuccessfully  to resuscitate him.   

For a defendant to act with deliberate indifference, he

must “recognize the unreasonable risk and actually

intend to expose the plaintiff to such risks without regard

to the consequences to the plaintiff Ultimately, a state

actor needs to “know that something is going to happen

but ignore the risk and expose [the plaintiff] to it.

Here the evidence was uncontroverted that Lopez did not know that Erick was in any immediate danger and could not have subjectively expected any immediate danger to Erick.

Erick was never left completely without

protection. Lopez observed Erick while he was in the pool,

and three lifeguards also monitored the area. Deliberate

indifference requires more: with at least four individuals

tasked with supervising Erick while in the pool, Lopez

neither abandoned Erick nor left him completely without

protection.