                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 23 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



VANESSA HALDEMAN; et al.,                        No. 08-15648

             Plaintiffs - Appellees,             D.C. No. 05-CV-00810-DAE

  v.
                                                 MEMORANDUM *
RUTH GOLDEN, in her individual
capacity; et al.,

             Defendants,

 and

KAREN DUTY, in her individual
capacity,

             Defendant - Appellant.



VANESSA HALDEMAN; et al.,                        No. 08-16352

             Plaintiffs - Appellees,             D.C. No. 1:05-cv-00810-DAE-
                                                 KSC
  v.

RUTH GOLDEN, in her individual


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
capacity; et al.,

              Defendants,

 and

DONALD CUPP, in his individual
capacity,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                      Argued and Submitted October 14, 2009
                                Honolulu, Hawaii

Before: BEEZER, GRABER and FISHER, Circuit Judges.

       State social workers Karen Duty and Donald Cupp appeal from the district

court’s partial denial of qualified immunity from child-plaintiffs Vanessa and

Benjamin Haldeman’s 42 U.S.C. § 1983 and state law claims. We have

jurisdiction over interlocutory appeals taken from a district court’s denial of

summary judgment based on a claim of qualified immunity. Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). We review a district court’s denial of qualified

immunity de novo on appeal. Elder v. Holloway, 510 U.S. 510, 516 (1994). We

reverse the district court’s denial of qualified immunity.


                                           2
      The facts of this case are known to the parties. We do not repeat them.

      The claims contained in counts 1, 2, 4, 5, 7, 8 and 10 of the Haldeman

children’s second amended complaint as alleged against Duty and Cupp are

properly before the court on appeal. We do not decide any other issues as to any

other parties.

                                           I

      Counts 1 and 2 of the Haldeman children’s second amended complaint

contain their § 1983 claims and conspiracy claims against Duty and Cupp.

Qualified immunity protects § 1983 defendants from civil liability unless their

conduct violated “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Under Pearson v. Callahan, the court may determine whether the

constitutional right asserted was clearly established at the time of the alleged

violation without first determining whether the defendants actually violated a

constitutional right. 129 S. Ct. 808, 818 (2009).

                                           A

      The district court incorrectly denied Duty and Cupp qualified immunity

against the constitutional claims contained in count 1, including claims resting on




                                           3
allegations of assuming custody of the Haldeman children, filing a petition in the

family court and causing Vanessa’s medical examination.

      Duty and Cupp are entitled to summary judgment for taking custody of the

Haldeman children. The clearly established constitutional right of parents and

children to live together without government interference, Santosky v. Kramer, 455

U.S. 745, 753 (1982), is limited by the government’s need to investigate serious

claims of abuse. Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). Duty and

Cupp had a serious and important obligation to protect child welfare and had good

cause to believe that parental sexual abuse had occurred. Duty and Cupp did not

need a court order to take custody of the children because they had reasonable

cause to believe that both children were in “imminent danger of serious bodily

injury.” Id.

      Duty and Cupp are entitled to absolute immunity against claims based on the

filing of a custody petition in family court. See Beltran v. Santa Clara County, 514

F.3d 906, 908 (9th Cir. 2008) (per curiam) (en banc). Duty and Cupp are also

entitled to qualified immunity against claims that they deliberately falsified

evidence. The Haldeman children fail to support their claim of deliberate evidence

falsification with anything other than expert reports that criticize Duty and Cupp’s

interviewing techniques. “[T]here is no constitutional due process right to have


                                           4
child witnesses in a child sexual abuse investigation interviewed in a particular

manner, or to have the investigation carried out in a particular way.” Devereaux v.

Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (en banc).

      Duty and Cupp are entitled to summary judgment for claims that they caused

Vanessa’s medical exam. No evidence in the record links Duty and Cupp to the

authorization or performance of the medical exam. The Haldeman children thus

bear the burden of providing evidence demonstrating a genuine issue of material

fact for trial. Fed. R. Civ. P. 56(e); Devereaux, 263 F.3d at 1076. The Haldeman

children offer no evidence of Duty’s or Cupp’s personal participation.

                                          B

      Duty and Cupp are entitled to summary judgment on count 2, which alleges

a civil conspiracy. A civil conspiracy claim, as opposed to a claim under 42 U.S.C.

§ 1985, holds private actors liable under § 1983 when they conspire with state

actors to violate a person’s constitutional rights. Tower v. Glover, 467 U.S. 914,

920 (1984). It is not a means of holding state actors liable on claims from which

they are otherwise immune. While the existence of a conspiracy would eliminate

the requirement that Duty and Cupp personally participated in Vanessa’s medical

exam, no evidence in the record supports the existence of an agreement to carry out

that exam.


                                          5
                                          II

      Counts 4, 5, 7, 8 and 10 of the Haldeman children’s second amended

complaint raise claims of negligence, gross negligence, intentional infliction of

emotional distress, social worker malpractice and invasion of privacy. All of these

claims are based on Duty and Cupp having taken custody of the Haldeman

children, filing the custody petition in family court and causing Vanessa’s medical

examination.

      The district court incorrectly denied state law immunity to Duty and Cupp

on all counts. Hawaii state law provides immunity to state social workers

investigating child abuse cases for acts performed within the scope of their duties.

Haw. Rev. Stat. § 350-3(b). This statute provides at least the same level of

immunity as provided under federal law. The same analysis above therefore

applies to the state law claims.

      The district court is directed to dismiss all claims against Duty and Cupp.

      REVERSED and REMANDED.




                                          6
