                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-3583
                                      ____________

                             CHRISTOPHER ZIMMER, SR.;
                                 NICOLE ZIMMER,
                                            Appellants

                                             v.

     NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
             f/k/a Division of Youth and Family Services (“DCP&P”);
      LISA VON PIER, In her Official Capacity as Director of DCP&P/Assistant
     Commissioner of the New Jersey Department of Children and Families (DCF);
      ALLISON BLAKE, In her Official Capacity as the Commissioner of DCF;
                  MONIQUE DYKES, In her Individual Capacity;
               MICHELLE MARCHESE, In her Individual Capacity
                                  ____________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 3-15-cv-02524)
                      District Judge: Honorable Freda L. Wolfson
                                      ____________

                          Submitted November 6, 2018
           Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.

                                (Filed: November 8, 2018)

                                      ____________

                                        OPINION *
                                      ____________

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Christopher Zimmer, Sr. and his wife Nicole Zimmer appeal the District Court’s

orders granting summary judgment to New Jersey Division of Child Protection and

Permanency (DCPP) caseworker Michelle Marchese and dismissing all the original

Defendants sued in their official capacities. We will affirm.

                                             I1

       The Zimmers make three arguments on appeal: two regarding qualified immunity

and one regarding their standing to seek injunctive relief. We will address each argument

in turn.

                                             II

       The Zimmers first claim summary judgment was improper because they

established facts sufficient to make out a Fourth Amendment violation by Marchese.

They next argue those facts preclude qualified immunity for Marchese because she was

on notice her conduct violated the Fourth Amendment. Because the Zimmers must

prevail on both arguments to defeat summary judgment, and because we hold that

Marchese reasonably believed the Zimmers voluntarily consented to her second attempt

to enter their home, we need not decide whether a constitutional violation in fact



       1
        The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. §§ 158(d) and 1291. We review a District Court’s orders granting
summary judgment and dismissing defendants de novo. See Halsey v. Pfeiffer, 750 F.3d
273, 287 (3d Cir. 2014); Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012).
                                             2
occurred. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Marchese’s reasonable

belief entitled her to qualified immunity and summary judgment was appropriate on that

basis.

         State actors are protected by qualified immunity if “the law did not put the officer

on notice that [her] conduct would be clearly unlawful.” Montanez v. Thompson, 603

F.3d 243, 251 (3d Cir. 2010) (quoting Bayer v. Monroe Cty. Children & Youth Servs.,

577 F.3d 186, 193 (3d Cir. 2009)). On the facts presented in this appeal, no statute or

precedent put Marchese on notice that her entry into the Zimmers’ home would be clearly

unlawful. When Marchese first approached the home, Mr. Zimmer denied her entry and

asked her to wait in her car across the street while he summoned police. Marchese

complied. Chief of Police Matthew Scott responded, spoke with Marchese at her car, and

spoke with the Zimmers inside their home without Marchese present. Although the

parties dispute what was said inside the home, they do not dispute that Chief Scott then

returned to Marchese at her car and told her: “[y]ou can go in. They will let you in.” App.

181. When Chief Scott left and Marchese approached the home for the second time, Mr.

Zimmer opened the door and she entered without any objection (or invitation). The

Zimmers then directed her to sit at the dining room table where they spoke for over an

hour.

         Under these circumstances, Marchese could reasonably believe the Zimmers

changed their minds after the initial encounter and voluntarily consented to her entry.

Comparing the two interactions at the front door clarifies this further. Mr. Zimmer
                                               3
initially refused entry—even in the face of Marchese’s threat to let her in “or else.” App.

148. After speaking with Chief Scott, Mr. Zimmer then let Marchese inside the home

without protest and spoke with her at length. Regardless of the dispute over what Chief

Scott said to the Zimmers in the interim, Marchese was not privy to that conversation, so

she reasonably perceived this apparent change-of-heart as voluntary. For that reason, she

is entitled to qualified immunity.

                                               III

       The Zimmers also ask us to reinstate their claim for an injunction against the

original Defendants sued in their official capacities for an alleged pattern of rights

violations. We decline to do so.

       Prospective relief like the injunction the Zimmers seek requires plaintiffs to

establish a “concrete and particularized” injury that is also “actual and imminent.” Free

Speech Coal., Inc. v. Att’y Gen., 825 F.3d 149, 165 (3d Cir. 2016) (quoting Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009)). The Zimmers allege no concrete or

particularized pattern, just this one instance of an anonymous tip leading to a caseworker

visit. Moreover, DCPP has apparently taken no action relating to the Zimmers since

Marchese’s visit except to inform them in writing that it has no intention to take further

action against them. This debunks the Zimmers’ claim to be suffering any real and

immediate threat of continued investigation, which is the only ground they provide to

justify their standing to sue. The District Court therefore did not err when it dismissed

DCPP and the Defendants named in their official capacities.
                                              4
                               *      *       *

For the reasons stated, we will affirm the orders of the District Court.




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