PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ DONALD JOE GUTTERIDGE, JR., as limited guardian of D.C., a minor child, Plaintiff - Appellant,

v. STATE OF OKLAHOMA; OKLAHOMA DEPARTMENT OF HUMAN SERVICES; BETHANIE KUZMA, an individual; SHANNON MCELROY, an individual; SCOTT BATISTE, an individual; MISTY JENNINGS-NELSON, an individual; BETTY JOHNSON, an individual; RENEE FIELDS, an individual; REGINA BENSON, an individual, Defendants - Appellees, No. 16-6321

_________________________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:13-CV-00816-C)

_________________________________ Michael L. Brooks, The Brooks Law Firm, Oklahoma City, Oklahoma (David W. Van Meter, Van Meter Law Firm, Oklahoma City, Ok lahoma, Charles J. Watts, and Ellen M. Watts, Oklahoma City, Oklahoma, with hi m on the briefs), for Plaintiff-Appellant. John K.F. Langford (Emily B. Fagan, with him on th e brief), Oklahoma Department of Human Services, Oklahoma City, Ok lahoma, for Defendants-Appellees.

_________________________________ Before KELLY , MURPHY , and MORITZ , Circuit Judges.

_________________________________ FILED United States Court of Appeals Tenth Circuit 

### January 3, 2018 Elisabeth A. Shumaker Clerk of Court2 MORITZ , Circuit Judge.

_________________________________ Plaintiff Donald Gutteri dge, Jr. appeals the distri ct court’s order granting summary judgment to the defendants on two claims arising from in juries suffered by D.C., a child who was then in Oklahoma’s foster-care system. We agree with the district court that the individual defendants are entitled to qualified immunity on Gutteridge’s 42 U.S.C. § 1983 claim. Likewise, we agree that Gutteridge’s state-law tort claim is barred to the ex tent it arises from D.C.’s placement in two different foster homes. Acco rdingly, we affirm in part. But to the extent Gutteridge’s state-la w law claim instead arises from the alleged failure to timely remove D.C. from one of those homes and the alleged failure to provide D.C. with timely medical care fo r injuries she suffered ther e, the placement exemption doesn’t apply. Thus, we reverse in part and remand for further proceedings. I D.C. is a minor child wh o was born in April 2008. So on thereafter, she was diagnosed with cerebral palsy. Gutteridge is he r limited guardian. In 2010, the Oklahoma Department of Human Services (OKDHS) removed D.C. from the home of her biological parent s and placed her in the foster-care home of Carolyn Funk. While there, D.C. su ffered an unexplained shoulder fracture. OKDHS removed D.C. from Funk’s home pending an investigation. But it returned D.C. to the Funk home after concluding that any allegations of abuse were unsubstantiated.3 A few months later, D.C.’s biological father reporte d to OKDHS that Funk had allowed D.C. to fall backward and hit her h ead in the bathtub in order to teach D.C. not to lean back in the tub. And appr oximately seven mont hs after that, OKDHS learned of severe bruisi ng and a raised knot on D.C. ’s forehead. OKDHS again investigated and again found no evidence of neglect or abuse. Nevertheless, OKDHS immediately removed D.C. from Fu nk’s home at Funk’s request. OKDHS then placed D.C. in the fo ster-care home of Pat LeBarre. Approximately two weeks later, LeBarre noticed D.C. havi ng what appeared to be a seizure. After LeBarre reported D.C.’s condition to OKDHS, LeBarre and an OKDHS employee took D.C. to a local doctor’s office. D.C. was then transported to a hospital, where testing rev ealed injuries consistent with abusive head trauma. OKDHS later concluded that this head trauma—which ultimately resulted in permanent brain damage—was the result of a buse or neglect that D.C. suffered while in LeBarre’s care. D.C.’s biological father brought suit in state court against OKDHS and several of its employees. After the defendants remove d the action to federal court, Gutteridge substituted himself as the plaintiff and filed an amended complaint. As relevant here, Gutteridge asserted two clai ms: (1) a state-law tort cl aim against OKDHS; and (2) a § 1983 claim against OKDHS em ployees Bethanie Kuzma, Shannon McElroy, Scott Batiste, Misty Jennings-Nelson, Betty J ohnson, Renee Fields, and Regina Benson (the individual defendants), alleging they violated D.C. ’s substantive due process rights.4 The individual defendants and OKDHS moved for summary judgment. In relevant part, the individual defendants asserted that they are entitled to qualified immunity. And OKDHS argued that it’s exempt from liability under Oklahoma’s Governmental Tort Claims Act (GTCA). See Okla. Stat. Ann. tit. 51, § 155(29) (“The state or a political subdivision shall not be liable if a loss or claim results from . . . [a]ny claim based upon an act or omi ssion of an employee in the placement of children.”). The district court agreed on both count s. First, in concluding that the individual defendants are entitled to qualif ied immunity, it ruled that Gutteridge failed to establish a Four teenth Amendment violati on because the individual defendants’ actions don’t “shock the cons cience.” App. vol. 22, 1767. Second, it ruled that Gutteridge’s stat e-law claim against OKDHS is indeed barred because it arises from D.C.’s “placeme nt” with Funk and LeBarre. Okla. Stat. Ann. tit. 51, § 155(29). Accordingly, the district c ourt granted summary judgment to the individual defendants and to OK DHS. Gutteridge appeals. II A Gutteridge first argues that the district c ourt erred in ruling that the individual defendants are entitled to qualified immun ity on his § 1983 claim. We review de novo the district court’s order granti ng summary judgment to the individual defendants on qualified-immunity grounds. Felders ex rel. Smedley v. Malcom , 755 F.3d 870, 877 ( 10th Cir. 2014).5 “The doctrine of qualified immunity shie lds officials from ci vil liability so long as their conduct ‘does not violate clear ly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009)). “When a defendant asserts qualified immunity at su mmary judgment, the burden shifts to the plaintiff, who must clear tw o hurdles in order to defeat the defendant’s motion.” Riggins v. Goodman , 572 F.3d 1101, 1107 ( 10th Cir. 2009). First, “[t]he plaintiff must demonstrate on the facts alleged . . . that the defendant vi olated his [or her] constitutional or statutory rights.” Id. Second, the plaintiff must demonstrate “that the right was clearly established at the ti me of the alleged unlawful activity.” Id. “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgm ent—showing ‘that there are no genuine issues of material fact and th at he or she is en titled to judgment as a matter of law.’” Nelson v. McMullen , 207 F.3d 1202, 1206 ( 10th Cir. 2000) (quoting Albright v. Rodriguez , 51 F.3d 1531, 1535 ( 10th Cir. 1995)). Here, the district court conc luded that Gutteridge’s § 1983 claim faltered at the first of these two hurdles: it ru led that Gutteridge failed to demonstrate the individual defendants violated D.C.’s substantive due process rights under the Fourteenth Amendment. For the reasons di scussed below, we agree. “[S]tate actors are generally only liabl e under the Due Proces s Clause for their own acts and not for private violence . . . .” Uhlrig v. Harder , 64 F.3d 567, 572 (10th Cir. 1995). Thus, the individual defendants t ypically wouldn’t be liable for any acts6 of “private violence” that Funk or LeBarre may have perpetrated against D.C. while she was in their care. Id. But “there are two recognize d . . . exceptions” to this general rule: “(1) the speci al relationship doctrine; a nd (2) the ‘danger creation’ theory.” Id. Gutteridge relies on the first of these two exceptions here. The special-relationship doctrine “pro tects individuals”—including foster children—“who involuntarily en ter state custody and subse quently become reliant on the State, through its agenci es and officials, to provide their basic human needs, paramount among those safety.” Schwartz v. Booker , 702 F.3d 573, 585 (10th Cir. 2012); see also id. at 580 (“[F]oster ca re is recognized as one of the custodial relationships that creates a sp ecial relationship.”). This “s pecial relationship triggers a continuing duty” that “is s ubsequently violated if a st ate official ‘knew of the asserted danger to [a foster child] or fa iled to exercise prof essional judgment with respect thereto, . . . and if an affirmative link to the injuries [t he child] suffered can be shown.’” Id. at 580 (alterations in original) (quoting Yvonne L. ex rel. Lewis v. N.M. Dep’t of Human Servs. , 959 F.2d 883, 890 ( 10th Cir. 1992)). But as the district court pointed out, it appears this court re quires more than a state official’s mere failure to exercise professional ju dgment; instead, to sustain a claim under the special-r elationship doctrine, a plainti ff must demonstrate that the defendant “abdicated her professional duty sufficient to shock the conscience .” Schwartz , 702 F.3d at 585–86 (emphasis added); see also Cty. of Sacramento v. Lewis , 523 U.S. 833, 847 (1998) (“[T]he substantive compone nt of the Due Process Clause is violated by executive action only wh en it ‘can properly be characterized as7 arbitrary, or conscience shocking, in a constitutional sense.’” (quoting Collins v. City of Harker Heights , 503 U.S. 115, 128 (1992))). Here, the district court concluded that the individual defendants were “[no] more than negligent” in placing D.C. with LeBarre. App. vol. 22, 1767. And it reasoned that they were “at mo st reckless or neg ligent” in their d ealings with Funk. Id. Thus, the district court ruled, the i ndividual defendants’ conduct doesn’t “shock the conscience” and therefore can’t form th e basis of a special-r elationship claim. Id. On appeal, Gutteridge raises four challe nges to this ruling. First, Gutteridge asserts that the district c ourt erred in requiring him to demonstrate both that the individual defendants (1) failed to exercise professional judgment and (2) did so in a manner that shocks the cons cience. Instead, Gutteridge asserts, a state employee’s failure to exercise professional judgment vi s-à-vis a foster child necessarily shocks the conscience. More specifi cally, Gutteridge argues, “abdication of professional judgment represents the degree of culpability that satisfies th e conscience-shocking standard in the specific context of foster-care cases.” Aplt. Br. 27; cf. Lewis , 523 U.S. at 850 (“[D]eliberately indifferent cond uct” is “enough to satisfy the fault requirement for due process claims base d on the medical need s of someone jailed while awaiting trial.” (int ernal citations omitted)); Bolmer v. Oliveira , 594 F.3d 134, 143–45 (2d Cir. 2010) (indica ting that substantial depart ure from medical standards in making involuntary-commitment decisi on is per se cons cience-shocking for purposes of due process claim; reasoning that “medical-standards an alysis . . . itself measures what is conscience s hocking in this context”).8 At the outset, we question whether Gutte ridge has preserved this argument for appeal. His opening brief fail s to “cite the precise refere nce in the record where the issue was raised and ruled on. ” 10th Cir. R. 28.2(C)(2); see also Harold s Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1540 n. 3 (10th Cir. 1996) (declining to consider argument where appellant failed to provide record citation in opening brief establishing it raised argument below). More over, our review of the record suggests that Gutteridge may have actually invite d the district court to apply the same approach he now seeks to challenge on appeal. For instance, in his response to the i ndividual defendants’ motion for summary judgment, Gutteridge argued separately—and, in fact, in separate subsections—that (1) the individual defendants “failed to exer cise professional judgment,” App. vol. 8, 1035, and (2) their conduc t shocks the conscience, id. at 1037. Likewise, he later acknowledged that to succeed on his § 1983 cl aim, he had to de monstrate that the individual defendants “abdicated [their] professional duty sufficient to shock the conscience .” App. vol. 18, 1703 (e mphasis added) (citing J.W. v. Utah , 647 F.3d 1006, 1011 (10th Cir. 2011)). And on appeal, Gutteridge recognizes that this very same “sufficient to shoc k the conscience” language, id. , could be read to suggest “that some failures to exer cise professional judgment will not rise to the level of conscience shocking and that a plaintiff must make some showing in addition to a social worker’s abdication of duty to sa tisfy the shocks-the-conscience standard.” Aplt. Br. 28–29, 29 n.10.9 In other words, Gutteridge relied on langua ge below that he recognizes directly contradicts the position he now advances on appeal. Thus, we could treat his argument as waived and decline to consider it, either because Gutteridge fails to demonstrate he raised the argument below a nd fails to argue for plain error on appeal, see Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011), or because Gutteridge affirmatively invited a ny error that may have occurred, see United States v. LaHue , 261 F.3d 993, 1013 (10th Cir. 2001) (applying invited-error doctrine where “defendants’ argument on app eal [wa]s a complete revers al from the position they” advanced below). Alternatively, even if we assume this argument is prop erly before us, it fails on the merits. In Johnson ex rel. Estate of Cano v. Holmes , 455 F.3d 1133 (10th Cir. 2006), we first articulated the relevant test as a bifurcated one: we indicated that to make out a claim under the special-rela tionship doctrine, (1) a plaintiff must demonstrate “an abdication of professional responsibility,” and (2 ) “[s]uch abdication must be sufficient to shock the conscience.” Id. at 1143. But we then reversed the district court’s order gran ting summary judgment to one of the defendants based solely on our conclusion that a reasonable ju ry could determine sh e failed to exercise her professional judgment; we didn’t then se parately address whether her failure to exercise professional judgment also shocked the conscience. Id. at 1145. And as Gutteridge points out, “[i]f the plaintiff had to make some showing beyond failure to exercise professional judgment to demonstr ate that the defenda nt’s conduct shocked10 the conscience, one would have expected the [c]ourt to address this additional requirement before reversi ng summary judgment for the defendant.” Aplt. Br. 29. Nevertheless, another aspe ct of our opinion in Johnson suggests that the district court correctly re quired Gutteridge to show no t only that the individual defendants failed to exercise professional judgment, but that th eir failure to do so shocks the conscience. In Johnson , the district court instru cted the jury that befo re it could find for the plaintiffs under the special-rel ationship doctrine, it had to conclude both that (1) the defendants “failed to exerci se professional judgment”; and (2) the defendants’ “acts and omissions were conscience shocking.” Brief for Appellant, Johnson , 455 F.3d 1133 (No. 04-2286), 2005 WL 6090396, at *51. On appeal , the plaintiffs challenged this instruction, arguing that it “misstated the applicable law by requiring the jury to find that [the defendants’] acti ons ‘shocked the conscience.’” Johnson , 455 F.3d at 1141. And in doing so, the plaintiffs raised an argument similar to the one Gutteridge advances here: they asserted “that ‘[the failure to exercise] professional judgment’ and not conduct that ‘shocks the conscience’ is the appropriate standard [of culpability] to have applied” to their special-relationship claim. Brief for Appellant, Johnson , 455 F.3d 1133 (No. 04-2286), 2005 WL 6090396, at *56. We rejected this argument, concluding th at the jury instru ction—which treated the conscience-shocking nature of the defe ndants’ conduct as a separate, additional element of the plaintiffs’ due process cl aim under the special-re lationship doctrine— “correctly stated the law.” Johnson , 455 F.3d at 1142. And this conclusion squares11 with the language of our more recent cases. Fo r instance, in J.W. , we again articulated the relevant test as having two parts. “The app licable standard,” we said, “‘requires an abdication of su ch professional responsibility,’ and ‘[s]uch abdication must be sufficient to shock the consci ence.’” 647 F.3d at 1011 (emphasis added) (alteration in original) (quoting Johnson , 455 F.3d at 1143). As Gutteridge acknowledges, we had no occasion to apply the second part of this test in J.W. 1 But we subsequently articulated and applied both parts of that twopart test in Schwartz . There, we explained that to “be held liable” under the specialrelationship doctrine, the defendant must have “failed to exercise professional judgment . . . ; moreover , her conduct must s hock the conscience.” Schwartz , 702 F.3d at 583 (emphasis added). We then affirmed the distri ct court’s order refusing to dismiss the plaintiffs’ special relationship claim. But we did so only after concluding that “the facts alleged could be a c onscience-shocking a bdication of duty.” Id. at 576, 587–88. Finally, while certainly not dis positive, dicta in our recent decision in Dahn v. Amedei confirms that the conscience-shocking nature of defendant’s conduct is a separate and distinct element of a special-relationship claim. See 867 F.3d 1178, 1185–86 (10th Cir. 2017) (l isting failure to exercise professional judgment and conscience-shocking nature of conduct as second and four th elements of specialrelationship claim, respectively).

1 Instead, we affirmed the district c ourt’s order granting summary judgment to the defendant because the plaintiffs fa iled to demonstrat e she abdicated her professional responsibilities. J.W. , 647 F.3d at 1011.12 Taken together, Johnson , J.W. , and Schwartz indicate that a plaintiff must separately demonstrate the conscience-shocking nature of a defendant’s conduct in order to mount a successful special-relationship claim. We remain bound by these decisions. See United States v. Little , 829 F.3d 1177, 1181 (10th Cir. 2016). Accordingly, we hold that the district cour t didn’t err in requiring Gutteridge to show both that (1) the individual defendants failed to exercise profes sional judgment; and (2) their actions shock the conscience. Next, Gutteridge argues that even a ssuming he must make this two-part showing, “the [individual de fendants’] conduct here would surely cross the necessary culpability threshold.” Aplt. Br. 41. But we aren’t convinced that the individual defendants failed to exercise their professiona l judgment, let alone that they did so in a manner that shocks the conscience. The individual defendants in this case didn ’t fail to investigate radical changes to D.C.’s home life. Cf. Johnson , 455 F.3d at 1145–46 (re versing order granting summary judgment to defendant who “did not investigate” various changes to child’s home life and who, “over a two-month span, did not make a single visit to” child’s home). Nor did they fail to investigate allega tions that LeBarre or Funk were abusing D.C. Cf. Schwartz , 702 F.3d at 588 (“[F]ailing to i nvestigate the child abuse referrals and dismissing [foster child’s] case withou t investigation was an abdication of duty that would violate [foster child ’s] substantive due process ri ght to be reasonably safe from harm . . . .”).13 On the contrary, Gutteridge concedes that OKDHS investig ated both D.C.’s shoulder fracture and the faci al bruising that she suffere d immediately before her removal from Funk’s home. And he doesn’t suggest that the individual defendants ever received any reports that LeBarre wa s abusing D.C. Under these circumstances, the individual defendants’ c onduct doesn’t shock the cons cience, even assuming they abdicated their professional duties by placing D. C. in, or failing to timely remove her from, the Funk or LeBarre homes. See Schwartz , 702 F.3d at 583 (“[A] social worker who simply makes a mistake of judgmen t under what are admittedly complex and difficult conditions will not find herself liable in damages under § 1983.” (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs. , 489 U.S. 189, 211 (1989) (Brennan, J., dissenting))); Johnson , 455 F.3d at 1142 (“[Defendant] exercised her professional judgment in her investigation of abuse alle gations and, thus, did not violate [child’s] substan tive due process rights.”). It does appear that the individual defe ndants never investigated the allegation that Funk allowed D.C. to fall backward in the tub and hit her head. But even assuming this failure to i nvestigate amounted to an a bdication of the individual defendants’ official duties, it doesn’t shock our conscience. See Schwartz , 702 F.3d at 586 (“Conduct is shoc king to the conscience when th e ‘degree of outrageousness and . . . magnitude of potential or actual harm . . . is truly cons cience shocking.’” (quoting Armijo ex rel. Chavez v. Wagon Mound Pub. Sch. , 159 F.3d 1253, 1262 (10th Cir. 1998))).14 Nor do any of Gutteridge’s remaini ng allegations shock our judicial conscience, e.g., that the individual de fendants were aware LeBarre “had been illegally spanking foster children,” App. vol. 22, 1767, or that th ey failed to seek medical treatment for D.C.’s facial brui sing when they removed her from Funk’s home. As the individual defe ndants point out, Gutteridge doe sn’t dispute that D.C.’s father and stepmother first noticed th e bruising on September 15, 2011. D.C. was then seen at a medical facility the very next day for what was apparently a physicaltherapy appointment. The notes from that appointment make no mention of D.C.’s bruising; on the contrary, they indicate th at D.C. seemed very happy. Thus, any failure to seek medical treat ment for D.C. nearly two w eeks later doesn’t shock the conscience, at least in th e absence of some indicati on that D.C.’s condition had visibly deteriorated by then. Finally, our conclusion that the indivi dual defendants’ conduct doesn’t shock the conscience necessarily disposes of Gutt eridge’s two remaining challenges to the district court’s order gran ting summary judgment to the individual defendants. Gutteridge argues that the district court er red in (1) failing to consider “testimony by other professionals” indicating that th e individual defendants “abdicated their professional judgment,” Aplt. Br. 36, 38; a nd (2) suggesting that reckless behavior can never shock the consci ence in this context. Even assuming the district court erred in failing to consid er certain evidence and but for that error the di strict court would have co ncluded that the individual defendants abdicated their professional duties, the individua l defendants would15 nevertheless be entitled to qualified immunity based on Gutteridge’s failure to demonstrate their conduct shocks the cons cience. Thus, any er ror in failing to consider that evidence was harmless. For similar reasons , so too was any error the district court may have committed by sugg esting that reckless behavior can never shock the conscience. Even assuming th at some reckless conduct can shock the conscience, the individual de fendants’ conduct here does not. Accordingly, we affirm the district court’s order granting summar y judgment to the individual defendants on Gutteridge’s § 1983 claim. B Gutteridge next challenges the distri ct court’s order granting summary judgment to OKDHS on his state-law tort cl aim. According to Gutteridge, his claim is premised on allegations that OKDHS (1) negligently pl aced D.C. in both the Funk home and the LeBarre home; (2) negligently failed to timely remove D.C. from the Funk home; and (3) negligen tly failed to provide D.C. with medical care for her facial bruising. Gutteridge concedes that state law bars hi s tort claim to the extent it arises from D.C.’s placement with Funk and LeBa rre; under the GTCA, “[t]he state or a political subdivision shall not be liable if a loss or claim re sults from . . . [a]ny claim based upon an act or omission of an empl oyee in the placement of children.” Okla. Stat. Ann. tit. 51, § 155(29). But Gutteri dge insists that the GTCA’s placement exemption (the Exemption) doesn’t apply to his two remaining theo ries of liability.16 We exercise de novo review over this argument, see United States v. Johnson , 941 F.2d 1102, 1111 (10th Cir. 1991), and construe the Exemption “restrictively,” Holt v. State ex rel. Okla. Dep’t of Transp. , 927 P.2d 57, 61 (Okla. Civ. App. 1996) (explaining that “object of [GTCA] was to make State and its political subdivisions liable in tort, except where the Legislature specifically and explicitly provided exemptions from liability”). i To the extent that Gutteridge’s state- law claim arises from OKDHS’ failure to provide D.C. with timely medical care, we agree with him that the Exemption doesn’t apply. Viewing the Exemption “r estrictively,” as we must under Holt , 927 P.2d at 61, we simply can’t see how th e failure to seek medical care for D.C. might have anything to do with her “placement.” 2 Okla. Stat. Ann. tit. 51, § 155(29); see also Taylor v. Okla. ex rel. Dep’t of Human Servs. , No. 07-CV-380-GKF-PJC, 2008 WL 268333, at *4 (N.D. Okla. Jan. 29, 200 8) (ruling that claim arising from OKDHS’ “failure . . . to seek me dical treatment [for child] following allegations of abuse” wasn’t based upon act or omis sion in child’s placement). OKDHS suggests that we ca n nevertheless affirm th e district court’s order granting it summary judgment on Gutteridge’s medical-care clai m because, even

2 Notably, the district cour t never explicitly conclude d otherwise. It initially acknowledged that Gutteridge’s state-law claim was premised, in part, on OKDHS’ alleged failure to provide D.C. with time ly medical care. But in analyzing whether the Exemption applies, the court addresse d only Paragraphs 45(D), 46(A), and 46(D) of the operative complaint; it didn’t discuss Paragraph 45(E) or Paragraph 46(E), which discuss OKDHS’ alleged failure to pr ovide D.C. with timely medical care.17 assuming the Exemption doesn’t apply, that claim is time-barred. In support, OKDHS asserts that the claim arises from injuries that D.C. suffered prior to October 2, 2011—more than a year before OKDHS r eceived written notice of the claim. See Okla. Stat. Ann. tit. 51, § 156(B) (“A clai m against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.”). But as Gutteridge points out, the loss he seeks to recover for under this claim isn’t the injury that allegedly caused D.C. to need medical car e in the first place—an injury that he concedes occurred sometime before Se ptember 15, 2011. Instead, Gutteridge seeks to recover for the injury that allegedly resulted in part from OKDHS’ failure to provide that medical care: D.C.’s permanent brain damage. 3 And because it appears that par ticular loss didn’t occur until sometime after October 2, 2011, see id. § 152(8), (defining “loss,” in releva nt part, as “injury to the body”), Gutteridge’s medical-care clai m isn’t “forever barred,” id. § 156(B); see also Bentley v. Kirk , 348 P.3d 1112, 1116 (Okla. Civ. App. 2015) (“The date of an act of negligence and the date of an actual resulting loss are not necessarily the same. Had the Legislature wished to start the one-year period on the date of the negligence or

3 We question whether the record cont ains any evidence of a causal link between (1) the injuri es that D.C. suffered while in Funk’s care or OKDHS’ subsequent failure to seek medical care for those injuri es and (2) D.C.’s ultimate brain damage. But OKDHS doesn’t cite the ab sence of such evid ence as a basis for treating Gutteridge’s state-la w claim as untimely. Accord ingly, we won’t address whether such record evidence exists or whether the abse nce of such evidence would bar Gutteridge’s state-law claim under Okla. Stat. Ann. tit. 51, § 156(B).18 other tortious act, it could have stated so .”). Accordingly, we reverse the district court’s order granting summary judg ment to OKDHS on that claim. ii Gutteridge’s assertion that OKDHS negligen tly failed to timely remove D.C. from the Funk home presents a slightly closer question. In granting OKDHS summary judgment on this claim, the dist rict court reasoned that any allegations involving (1) OKDHS’ failure to remove D.C. from the Funk home or (2) OKDHS’ decision to return D.C. to the Funk home after its inves tigation into D.C.’s shoulder fracture arise from OKDHS’ decision to continue D.C.’s placement with Funk. And the district court agreed with OKDHS that any “semantic distinctions” between failing to remove D.C. from the Funk hom e and continuing D.C.’s placement there are insufficient to pl ace this claim beyond the Exemption’ s reach. App. vol. 22, 1769. We can see how the district court might reach this conclusion. Alleging that OKDHS was negligent in failing to remove D.C. from the Funk home could be construed as nothing more than an alternative way of alleging that OKDHS was negligent in continuing her placement there. And the Exemption indisputably applies to any claims arising from D. C.’s “placement.” Okla. St at. Ann. tit. 51, § 155(29). But as Gutteridge points out, his failure- to-remove claim aris es from acts and omissions that allegedly occurred after OKDHS both (1) initially placed D.C. in the Funk home and (2) had a subsequent oppor tunity to intervene on D.C.’s behalf. Gutteridge argues that under these circum stances, the Oklahoma Court of Civil19 Appeals’ recent decision in Deal v. Brooks , 389 P.3d 375, 382–83 (Okla. Civ. App. 2016), places his failure-to-remove claim outside the Exemption. 4
In Deal , OKDHS placed a foster child with her biological father on May 11, 2011. Id. at 382. He murdered her less than a month later. Id. at 380, 382. The child’s grandparents brought suit, and OKDHS assert ed it was exempt fr om tort liability under the Exemption. Id. at 380. The Oklahoma Court of Civil Appeals agreed. Id. at 381. In doing so, it noted that the plaintif fs’ claims arose sole ly from conduct that “occurred prior to the decision to place th e child with” her father, as opposed to

“ after the placement decision was made.” Id. at 382. Likewise, th e court pointed out, the child’s death occu rred less than a month after he r placement and “prior to, for example, any scheduled re view of the placement or other opportunity to intervene .” Id. at 383 (emphasis added). Thus, the cour t concluded, the Exemption barred the plaintiffs’ claims. Id. Here, on the other hand, Gutteridge’s fa ilure-to-remove clai m arises from acts and omissions that allegedly occurred after D.C.’s placement in the Funk home; OKDHS concedes that (1) it placed D.C. in the Funk home on August 20, 2010; and (2) D.C.’s father noticed her facial brui sing and swelling almost a year later, on September 15, 2011. 5 Moreover, these acts and omis sions occurred not only after

4 The Oklahoma Supreme Court ultimately released Deal for publication and accorded it preced ential value. Deal v. Brooks , 2016 WL 7212486, at *1 (Okla. Aug. 4, 2016). 5 According to Gutteridge, th e injuries that led to this facial bruising and swelling—injuries that D.C. suffered while she was in Funk’s care—contributed to D.C.’s ultimate brain damage.20 OKDHS had an “opportunity to intervene,” id. , but after OKDHS actually did intervene : it temporarily removed D.C. from th e Funk home and then returned her after an investigation. In light of Deal ’s emphasis on post-placement opportunities to intervene, see id. , and our obligation to construe the Exemption “restrictively,” Holt , 927 P.2d at 61, we hold that the Exemptio n doesn’t apply to Gutteridge’s failure-toremove claim, see Brown v. Buhman , 822 F.3d 1151, 1160 n.6 (10th Cir. 2016), cert. denied , 137 S. Ct. 828 (2017) (“[F]ederal courts must defer to stat es’ interpretations of their own statutes.”). 6 But we stress that we are notcalled upon today to define the outer contours of the phrase “opport unity to interven e” as used in Deal . 389 P.3d at 383. And we do not mean to suggest that the Exempti on is inapplicable to all allegations of post-placement negligen ce. Instead, we hold only that, under Deal , the Exemption doesn’t apply when the relevant acts or omissions occurred both (1) after the initial placement; and (2) after OKDHS act ually intervened in that placement by removing the child from the home pending an investigation based on possible abuse and then returning the child to th e home following the investigation. Finally, like Gutteridge’s medical-care cl aim, Gutteridge’s failure-to-remove claim is also ti mely. True, any negligent failure to remove D.C. from the Funk home occurred more than one year before OKDHS received written notice of Gutteridge’s

6 Deal doesn’t explicitly hold that when th e alleged conduct occurs both after the initial placement and afte r a subsequent post-placement opportunity to intervene, the Exemption doesn’t apply. But Deal indisputably indicates the court would have reached a different result but for the absence of such allegations. See, e.g. , 389 P.3d at 382, 383. In light of Deal ’s broad language on this point and the deference we owe that decision, see Brown , 822 F.3d at 1160 n.6, we find it controlling.21 claim. But the “los s” Gutteridge seeks to recover for, see Okla. Stat. Ann. tit. 51, § 152(8), isn’t the facial br uising and swelling that D.C. suffered while in Funk’s care; it’s the permanent brain damage that D.C. suffered someti me after October 2, 2011—brain damage to which Gu tteridge says the injuries th at D.C. suffered while in Funk’s care contributed. And because OKDHS received written notice of Gutteridge’s failure-to-remove claim less than one year after D.C. suffered that brain damage, his claim isn’ t “forever barred.” Id. § 156(B); see also Bentley , 348 P.3d at 1116. For the reasons discussed above, we affirm the district court’s order dismissing Gutteridge’s state-law claim to the extent it arises from OKDHS’ decisions to place D.C. with Funk and LeBarre. But we reve rse the district cour t’s order dismissing— and remand for further proceedings on—Gutte ridge’s state-law clai m to the extent it instead arises from OKDHS’ alleged failure to (1) obtain timely medical care for D.C. and (2) timely remove her from the Funk home. C As a final matter, we grant Gutteridge’s motion to seal Volumes 2, 5, 7, 13, 15, 17, 19, and 21 of the appendix; the material contained in these volumes “play[ed] no role in our resoluti on of this appeal.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc. , 847 F.3d 1221, 1246 n.14 (10th Cir. 2017). But in that same mo tion Gutteridge also moved to seal Volumes 4, 9, 10, and 11 of the appendix. We ordered Gutteridge to address whether we should require him to (1) file an amended appendix and (2) narrow his sealing request to only those22 documents containing private information that can’t be reas onably redacted. In response, Gutteridge asserted that some of the documents in these volumes are confidential in their en tirety under state law. We agree those documents should remain under seal. See Baxter Int’l, Inc. v. Abbott Labs. , 297 F.3d 544, 546 (7th Cir. 2002). Yet Gutteridge’s response fails to identify those documents with any particular ity. Thus, we can’t be sure whether the portions of Volumes 4, 9, 10, and 11 that have “play[ed a] role in our resolution of this appeal” are confidential under state law and should th erefore remain under seal. 7 Lenox MacLaren Surgical Corp. , 847 F.3d at 1246 n.14. Accordingly, the court’s April 10, 2017 order provisionally granting Appellant’s Unopposed Motion for Leave to File Certain Volumes of Appellant’s A ppendix Under Seal is modified as follows. Gutteridge shall review the page s of the appendix cited above, see supra note 7, to determine whether (1) the en tirety of those pages are confidential, or (2) the confidential information contai ned therein can be redacted so as to provide the public access to the record ma terials that informed the court’ s decision. Within 10 days of the date of this opinion, Gutteridge shal l file a response iden tifying any of these pages that are confidential in their entirety, and attachi ng redacted versions of the pages that can reasona bly be redacted.

7 Those pages are App. vol. 4, 376–78; Ap p. vol. 9, 1078–80, 1195; App. vol. 10, 1312, 1335, 1371, 1385; and App. vol. 11, 1196.23 * * * The facts of this case are undeniably tragic. But we cannot say the individual defendants’ conduct—even assuming it amount s to an abdication of professional duty—is so “outrageous[]” as to be “truly conscience shocking.” Schwartz , 702 F.3d at 586 (quoting Armijo , 159 F.3d at 1262). Accordingly, we agree with the district court that the individual defendants are entitled to qualified immunity. And we therefore affirm its order granting summ ary judgment to them on Gutteridge’s § 1983 claim. Likewise, to the extent that Gutte ridge’s state-law clai m arises from D.C.’s placement in the Funk or LeBarre homes, we agree the Exemption applies and affirm the district court’s order granting summar y judgment to OKDHS. But to the extent that Gutteridge’s state-law claim inst ead arises from allegations that OKDHS (1) failed to obtain timely me dical care for D.C. and (2) fa iled to timely remove her from the Funk home, that clai m is neither time-barred nor subject to the Exemption. Accordingly, we reverse in part the district court’s or der granting summary judgment to OKDHS and remand for further proceedings.