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, Oklahoma, Charles J. Watts, and Ellen M. 

Watts, Oklahoma City, Oklahoma, with him on the briefs), for Plaintiff-Appellant. 

John K.F. Langford (Emily B. Fagan, with him on the brief), Oklahoma Department of 

Human Services, Oklahoma City, Oklahoma, 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 Court
2 

MORITZ, Circuit Judge. 

_________________________________ 

Plaintiff Donald Gutteridge, Jr. appeals the district court’s order granting 

summary judgment to the defendants on two claims arising from injuries 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 extent it arises from D.C.’s 

placement in two different foster homes. Accordingly, we affirm in part. But to the 

extent Gutteridge’s state-law 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 for injuries she suffered there, the placement exemption 

doesn’t apply. Thus, we reverse in part and remand for further proceedings. 

I 

D.C. is a minor child who was born in April 2008. Soon thereafter, she was 

diagnosed with cerebral palsy. Gutteridge is her limited guardian. 

In 2010, the Oklahoma Department of Human Services (OKDHS) removed 

D.C. from the home of her biological parents and placed her in the foster-care home 

of Carolyn Funk. While there, D.C. suffered 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 reported to OKDHS that Funk had 

allowed D.C. to fall backward and hit her head in the bathtub in order to teach D.C. 

not to lean back in the tub. And approximately seven months after that, OKDHS 

learned of severe bruising 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 Funk’s home at Funk’s request. 

OKDHS then placed D.C. in the foster-care home of Pat LeBarre. 

Approximately two weeks later, LeBarre noticed D.C. having 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 revealed injuries consistent with abusive head trauma. 

OKDHS later concluded that this head trauma—which ultimately resulted in 

permanent brain damage—was the result of abuse 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 removed the action to federal court, Gutteridge 

substituted himself as the plaintiff and filed an amended complaint. As relevant here, 

Gutteridge asserted two claims: (1) a state-law tort claim against OKDHS; and (2) a 

§ 1983 claim against OKDHS employees Bethanie Kuzma, Shannon McElroy, Scott 

Batiste, Misty Jennings-Nelson, Betty Johnson, 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 omission of an employee in the placement of 

children.”). 

The district court agreed on both counts. First, in concluding that the 

individual defendants are entitled to qualified immunity, it ruled that Gutteridge 

failed to establish a Fourteenth Amendment violation because the individual 

defendants’ actions don’t “shock the conscience.” App. vol. 22, 1767. Second, it 

ruled that Gutteridge’s state-law claim against OKDHS is indeed barred because it 

arises from D.C.’s “placement” with Funk and LeBarre. Okla. Stat. Ann. tit. 51, 

§ 155(29). Accordingly, the district court granted summary judgment to the 

individual defendants and to OKDHS. Gutteridge appeals. 

II 

A 

Gutteridge first argues that the district court erred in ruling that the individual 

defendants are entitled to qualified immunity on his § 1983 claim. We review de 

novo the district court’s order granting 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 shields officials from civil liability so 

long as their conduct ‘does not violate clearly 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 summary judgment, the burden shifts to the 

plaintiff, who must clear two 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 violated his [or her] 

constitutional or statutory rights.” Id. Second, the plaintiff must demonstrate “that the 

right was clearly established at the time 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 judgment—showing ‘that there are no genuine 

issues of material fact and that he or she is entitled 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 concluded that Gutteridge’s § 1983 claim faltered at the 

first of these two hurdles: it ruled that Gutteridge failed to demonstrate the individual 

defendants violated D.C.’s substantive due process rights under the Fourteenth 

Amendment. For the reasons discussed below, we agree. 

“[S]tate actors are generally only liable under the Due Process 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 typically wouldn’t be liable for any acts 
6 

of “private violence” that Funk or LeBarre may have perpetrated against D.C. while 

she was in their care. Id. But “there are two recognized . . . exceptions” to this 

general rule: “(1) the special relationship doctrine; and (2) the ‘danger creation’ 

theory.” Id. Gutteridge relies on the first of these two exceptions here. 

The special-relationship doctrine “protects individuals”—including foster 

children—“who involuntarily enter state custody and subsequently become reliant on 

the State, through its agencies 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 care is recognized as one of the custodial 

relationships that creates a special relationship.”). This “special relationship triggers 

a continuing duty” that “is subsequently violated if a state official ‘knew of the 

asserted danger to [a foster child] or failed to exercise professional judgment with 

respect thereto, . . . and if an affirmative link to the injuries [the 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 requires more than a 

state official’s mere failure to exercise professional judgment; instead, to sustain a 

claim under the special-relationship doctrine, a plaintiff 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 component of the Due Process 

Clause is violated by executive action only when it ‘can properly be characterized as 
7 

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 most reckless or negligent” in their dealings with Funk. 

Id. Thus, the district court ruled, the individual defendants’ conduct doesn’t “shock 

the conscience” and therefore can’t form the basis of a special-relationship claim. Id. 

On appeal, Gutteridge raises four challenges to this ruling. First, Gutteridge 

asserts that the district court 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 conscience. Instead, Gutteridge asserts, a state employee’s 

failure to exercise professional judgment vis-à-vis a foster child necessarily shocks 

the conscience. More specifically, Gutteridge argues, “abdication of professional 

judgment represents the degree of culpability that satisfies the conscience-shocking 

standard in the specific context of foster-care cases.” Aplt. Br. 27; cf. Lewis, 523 U.S. 

at 850 (“[D]eliberately indifferent conduct” is “enough to satisfy the fault 

requirement for due process claims based on the medical needs of someone jailed 

while awaiting trial.” (internal citations omitted)); Bolmer v. Oliveira, 594 F.3d 134, 

143–45 (2d Cir. 2010) (indicating that substantial departure from medical standards 

in making involuntary-commitment decision is per se conscience-shocking for 

purposes of due process claim; reasoning that “medical-standards analysis . . . itself 

measures what is conscience shocking in this context”). 
8 

At the outset, we question whether Gutteridge has preserved this argument for 

appeal. His opening brief fails to “cite the precise reference in the record where the 

issue was raised and ruled on.” 10th Cir. R. 28.2(C)(2); see also Harolds 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). Moreover, our review of the record suggests 

that Gutteridge may have actually invited the district court to apply the same 

approach he now seeks to challenge on appeal. 

For instance, in his response to the individual defendants’ motion for summary 

judgment, Gutteridge argued separately—and, in fact, in separate subsections—that 

(1) the individual defendants “failed to exercise professional judgment,” App. vol. 8, 

1035, and (2) their conduct shocks the conscience, id. at 1037. Likewise, he later 

acknowledged that to succeed on his § 1983 claim, he had to demonstrate that the 

individual defendants “abdicated [their] professional duty sufficient to shock the 

conscience.” App. vol. 18, 1703 (emphasis 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 shock the conscience” language, id., could be read to suggest 

“that some failures to exercise 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 satisfy the shocks-the-conscience standard.” 

Aplt. Br. 28–29, 29 n.10. 
9 

In other words, Gutteridge relied on language 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 and 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 any 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 appeal [wa]s a complete reversal from the position they” 

advanced below).

Alternatively, even if we assume this argument is properly 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-relationship 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 granting summary judgment to one of the defendants based 

solely on our conclusion that a reasonable jury could determine she failed to exercise 

her professional judgment; we didn’t then separately 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 demonstrate that the defendant’s conduct shocked 
10 

the conscience, one would have expected the [c]ourt to address this additional 

requirement before reversing summary judgment for the defendant.” Aplt. Br. 29. 

Nevertheless, another aspect of our opinion in Johnson suggests that the 

district court correctly required Gutteridge to show not only that the individual 

defendants failed to exercise professional judgment, but that their failure to do so 

shocks the conscience. 

In Johnson, the district court instructed the jury that before it could find for the 

plaintiffs under the special-relationship doctrine, it had to conclude both that (1) the 

defendants “failed to exercise 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’] actions ‘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 that the jury instruction—which treated 

the conscience-shocking nature of the defendants’ conduct as a separate, additional 

element of the plaintiffs’ due process claim under the special-relationship doctrine—

“correctly stated the law.” Johnson, 455 F.3d at 1142. And this conclusion squares 
11 

with the language of our more recent cases. For instance, in J.W., we again 

articulated the relevant test as having two parts. “The applicable standard,” we said, 

“‘requires an abdication of such professional responsibility,’ and ‘[s]uch abdication 

must be sufficient to shock the conscience.’” 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 shock the conscience.” Schwartz, 702 

F.3d at 583 (emphasis added). We then affirmed the district 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 conscience-shocking abdication of duty.” Id. at 576, 

587–88. Finally, while certainly not dispositive, 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) (listing failure to exercise professional judgment and 

conscience-shocking nature of conduct as second and fourth elements of specialrelationship claim, respectively). 

 

1

 Instead, we affirmed the district court’s order granting summary judgment to 

the defendant because the plaintiffs failed to demonstrate 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 court didn’t err in requiring Gutteridge to show 

both that (1) the individual defendants failed to exercise professional judgment; and 

(2) their actions shock the conscience. 

Next, Gutteridge argues that even assuming he must make this two-part 

showing, “the [individual defendants’] 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 professional 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 (reversing 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 allegations that LeBarre or Funk were abusing 

D.C. Cf. Schwartz, 702 F.3d at 588 (“[F]ailing to investigate the child abuse referrals 

and dismissing [foster child’s] case without investigation was an abdication of duty 

that would violate [foster child’s] substantive due process right to be reasonably safe 

from harm . . . .”). 
13 

On the contrary, Gutteridge concedes that OKDHS investigated both D.C.’s 

shoulder fracture and the facial bruising that she suffered immediately before her 

removal from Funk’s home. And he doesn’t suggest that the individual defendants 

ever received any reports that LeBarre was abusing D.C. Under these circumstances, 

the individual defendants’ conduct doesn’t shock the conscience, 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 judgment 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 allegations and, thus, did not 

violate [child’s] substantive due process rights.”). 

It does appear that the individual defendants 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 investigate amounted to an abdication of the individual 

defendants’ official duties, it doesn’t shock our conscience. See Schwartz, 702 F.3d at 

586 (“Conduct is shocking to the conscience when the ‘degree of outrageousness and 

. . . magnitude of potential or actual harm . . . is truly conscience 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 remaining allegations shock our judicial 

conscience, e.g., that the individual defendants were aware LeBarre “had been 

illegally spanking foster children,” App. vol. 22, 1767, or that they failed to seek 

medical treatment for D.C.’s facial bruising when they removed her from Funk’s 

home. As the individual defendants point out, Gutteridge doesn’t dispute that D.C.’s 

father and stepmother first noticed the 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 that D.C. seemed very happy. Thus, any 

failure to seek medical treatment for D.C. nearly two weeks later doesn’t shock the 

conscience, at least in the absence of some indication that D.C.’s condition had 

visibly deteriorated by then. 

Finally, our conclusion that the individual defendants’ conduct doesn’t shock 

the conscience necessarily disposes of Gutteridge’s two remaining challenges to the 

district court’s order granting summary judgment to the individual defendants. 

Gutteridge argues that the district court erred in (1) failing to consider “testimony by 

other professionals” indicating that the individual defendants “abdicated their 

professional judgment,” Aplt. Br. 36, 38; and (2) suggesting that reckless behavior 

can never shock the conscience in this context. 

Even assuming the district court erred in failing to consider certain evidence 

and but for that error the district court would have concluded that the individual 

defendants abdicated their professional duties, the individual defendants would 
15 

nevertheless be entitled to qualified immunity based on Gutteridge’s failure to 

demonstrate their conduct shocks the conscience. Thus, any error in failing to 

consider that evidence was harmless. For similar reasons, so too was any error the 

district court may have committed by suggesting that reckless behavior can never 

shock the conscience. Even assuming that some reckless conduct can shock the 

conscience, the individual defendants’ conduct here does not. Accordingly, we affirm 

the district court’s order granting summary judgment to the individual defendants on 

Gutteridge’s § 1983 claim. 

B 

Gutteridge next challenges the district court’s order granting summary 

judgment to OKDHS on his state-law tort claim. According to Gutteridge, his claim 

is premised on allegations that OKDHS (1) negligently placed 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) negligently failed to provide D.C. with medical care for her 

facial bruising. 

Gutteridge concedes that state law bars his tort claim to the extent it arises 

from D.C.’s placement with Funk and LeBarre; under the GTCA, “[t]he state or a 

political subdivision shall not be liable if a loss or claim results from . . . [a]ny claim 

based upon an act or omission of an employee in the placement of children.” Okla. 

Stat. Ann. tit. 51, § 155(29). But Gutteridge insists that the GTCA’s placement 

exemption (the Exemption) doesn’t apply to his two remaining theories 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 “restrictively,” as we must under Holt, 927 P.2d at 61, 

we simply can’t see how the 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, 2008) (ruling that claim arising from OKDHS’ 

“failure . . . to seek medical treatment [for child] following allegations of abuse” 

wasn’t based upon act or omission in child’s placement). 

OKDHS suggests that we can nevertheless affirm the district court’s order 

granting it summary judgment on Gutteridge’s medical-care claim because, even 

 

2

 Notably, the district court never explicitly concluded otherwise. It initially 

acknowledged that Gutteridge’s state-law claim was premised, in part, on OKDHS’ 

alleged failure to provide D.C. with timely medical care. But in analyzing whether 

the Exemption applies, the court addressed 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 provide 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 received written notice of the claim. See 

Okla. Stat. Ann. tit. 51, § 156(B) (“A claim 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 care in the first place—an 

injury that he concedes occurred sometime before September 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 particular loss didn’t occur until sometime after October 2, 

2011, see id. § 152(8), (defining “loss,” in relevant part, as “injury to the body”), 

Gutteridge’s medical-care claim 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 contains any evidence of a causal link 

between (1) the injuries that D.C. suffered while in Funk’s care or OKDHS’ 

subsequent failure to seek medical care for those injuries and (2) D.C.’s ultimate 

brain damage. But OKDHS doesn’t cite the absence of such evidence as a basis for 

treating Gutteridge’s state-law claim as untimely. Accordingly, we won’t address 

whether such record evidence exists or whether the absence 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 judgment to OKDHS on that claim. 

ii 

Gutteridge’s assertion that OKDHS negligently failed to timely remove D.C. 

from the Funk home presents a slightly closer question. In granting OKDHS 

summary judgment on this claim, the district 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 investigation 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 home and continuing D.C.’s placement there 

are insufficient to place 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. Stat. Ann. tit. 51, § 155(29). 

But as Gutteridge points out, his failure-to-remove claim arises from acts and 

omissions that allegedly occurred after OKDHS both (1) initially placed D.C. in the 

Funk home and (2) had a subsequent opportunity to intervene on D.C.’s behalf. 

Gutteridge argues that under these circumstances, the Oklahoma Court of Civil 
19 

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 asserted it was exempt from 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 plaintiffs’ claims arose solely from conduct that 

“occurred prior to the decision to place the child with” her father, as opposed to 

“after the placement decision was made.” Id. at 382. Likewise, the court pointed out, 

the child’s death occurred less than a month after her placement and “prior to, for 

example, any scheduled review of the placement or other opportunity to intervene.” 

Id. at 383 (emphasis added). Thus, the court concluded, the Exemption barred the 

plaintiffs’ claims. Id.

 Here, on the other hand, Gutteridge’s failure-to-remove claim 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 bruising and swelling almost a year later, on 

September 15, 2011.5

 Moreover, these acts and omissions occurred not only after 

 

4

 The Oklahoma Supreme Court ultimately released Deal for publication and 

accorded it precedential value. Deal v. Brooks, 2016 WL 7212486, at *1 (Okla. Aug. 

4, 2016). 

5

 According to Gutteridge, the 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 the 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 Exemption 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 states’ interpretations 

of their own statutes.”).6

 But we stress that we are not called upon today to define the 

outer contours of the phrase “opportunity to intervene” as used in Deal. 389 P.3d at 

383. And we do not mean to suggest that the Exemption is inapplicable to all 

allegations of post-placement negligence. 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 actually intervened in that placement by 

removing the child from the home pending an investigation based on possible abuse 

and then returning the child to the home following the investigation. 

Finally, like Gutteridge’s medical-care claim, Gutteridge’s failure-to-remove 

claim is also timely. 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 the alleged conduct occurs both after 

the initial placement and after 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 “loss” Gutteridge seeks to recover for, see Okla. Stat. Ann. tit. 51, 

§ 152(8), isn’t the facial bruising and swelling that D.C. suffered while in Funk’s 

care; it’s the permanent brain damage that D.C. suffered sometime after October 2, 

2011—brain damage to which Gutteridge says the injuries that 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 reverse the district court’s order dismissing—

and remand for further proceedings on—Gutteridge’s state-law claim 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 resolution of this appeal.” Lenox MacLaren Surgical Corp. v. Medtronic, 

Inc., 847 F.3d 1221, 1246 n.14 (10th Cir. 2017). 

But in that same motion 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 those 
22 

documents containing private information that can’t be reasonably redacted. In 

response, Gutteridge asserted that some of the documents in these volumes are 

confidential in their entirety 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 particularity. 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 therefore 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 Appendix Under Seal is modified as follows. 

Gutteridge shall review the pages of the appendix cited above, see supra note 7, to 

determine whether (1) the entirety of those pages are confidential, or (2) the 

confidential information contained therein can be redacted so as to provide the public 

access to the record materials that informed the court’s decision. Within 10 days of 

the date of this opinion, Gutteridge shall file a response identifying any of these 

pages that are confidential in their entirety, and attaching redacted versions of the 

pages that can reasonably be redacted. 

 

7

 Those pages are App. vol. 4, 376–78; App. 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 amounts 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 summary judgment to them on Gutteridge’s § 1983 

claim. Likewise, to the extent that Gutteridge’s state-law claim 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 summary judgment to OKDHS. But to the extent 

that Gutteridge’s state-law claim instead arises from allegations that OKDHS 

(1) failed to obtain timely medical care for D.C. and (2) failed to timely remove her 

from the Funk home, that claim is neither time-barred nor subject to the Exemption. 

Accordingly, we reverse in part the district court’s order granting summary judgment 

to OKDHS and remand for further proceedings.