                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 21 2011

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




                            FOR THE NINTH CIRCUIT

ORALEE ANDERSON-FRANCOIS,                        No. 09-16238

             Plaintiff - Appellee,               D.C. No. 3:08-cv-00724-WHA
  v.

COUNTY OF SONOMA; et al.,                        MEMORANDUM *

             Defendants,
  and

BRAD CONNORS,

             Defendant - Appellant.
ORALEE ANDERSON-FRANCOIS,                      No. 09-16240

              Plaintiff - Appellee,            D.C. No. 3:08-cv-00724-WHA
  v.

COUNTY OF SONOMA and JERRY
NEWMAN,

              Defendants - Appellants,
  and

CITY OF SANTA ROSA; et al.,

              Defendants.

                    Appeal from the United States District Court

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       for the Northern District of California
                     William H. Alsup, District Judge, Presiding

                       Argued and Submitted October 7, 2010
                             San Francisco, California

Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge.**

      Oralee Anderson-Francois filed a § 1983 action against Sonoma County,

California, the City of Santa Clara, and various local officials. She alleged that, in

February 2006, the defendants—including Detective Brad Conners and a social

worker, Jerry Newman—violated her right to familial association by removing her

foster children from her home without a warrant. Conners and Newman challenge,

on interlocutory appeal, the district court’s summary judgment ruling that they

were not entitled to qualified immunity. Sonoma County (“the County”) also

appeals the district court’s denial of its summary judgment motion.

Issue Preclusion

      Shortly after the children were removed, a California juvenile court

conducting a detention hearing ruled that there was a sufficient basis for further

detaining the children. Defendants contend that this state court ruling is

preclusive, barring Anderson-Francois from pressing her constitutional claims in


       **
             The Honorable Louis H. Pollak, Senior District Judge for the U.S.
District Court for Eastern Pennsylvania, Philadelphia, sitting by designation.

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federal court. However, even if the California statutes governing warrantless

removal, Cal. Welf. & Inst. Code §§ 305(a), 306(a)(2), are deemed equivalent to

the federal constitutional exigency requirement, the California statutes do not

require the judge conducting a detention hearing to make an exigency

determination, see id. §§ 315, 319,1 and in the case at bar the judge conducting the

detention hearing made no findings about the propriety of the warrantless removal.

See Conners ER 321–22. Accordingly, the issue that Anderson-Francois seeks to

litigate in federal court is not identical to any issue decided at the detention

hearing. Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990) (issue preclusion

only applies if, inter alia, “the issue sought to be precluded from relitigation [is]

identical to that decided in a former proceeding”); see also Migra v. Warren City

Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (“[A] federal court must give to a

state-court judgment the same preclusive effect as would be given that judgment

under the law of the State in which the judgment was rendered.”).

Qualified Immunity: Conners


      1
              Conners’ reliance on M.L. v. Superior Court is misplaced. In M.L.,
the juvenile court had made a finding, at the detention hearing, that sufficient
exigency existed to justify a warrantless removal under § 306, and the appellate
court reviewed that finding under federal constitutional standards. 172
Cal.App.4th 520, 526–27 (2009). But the juvenile court in this case did not
address, nor did either party raise, § 306 compliance. Moreover, as noted above,
the statutes governing detention hearings do not require an assessment of § 306.

                                            3
        We affirm the district court’s ruling that Conners is not entitled to qualified

immunity. At summary judgment, a qualified immunity analysis involves two

inquiries: (1) whether the facts plaintiff has shown make out a constitutional

violation; and, if so, (2) whether the right was clearly established at the time of the

alleged misconduct. See Pearson v. Callahan, 129 S. Ct. 808, 815–16 (2009).

Courts have discretion in deciding which of the two prongs to address first. Id. at

813.

        “Parents and children have a well elaborated constitutional right to live

together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126,

1136 (9th Cir. 2000). “Officials . . . who remove a child from its home without a

warrant must have reasonable cause to believe that the child is likely to experience

serious bodily harm in the time that would be required to obtain a warrant.”

Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). At the time

Conners removed Anderson-Francois’ children (February 2006), the right to be

free from an unjustified warrantless removal was clearly established. See id. at

1297.

        In this case, a jury could find that Conners, who could have obtained a

warrant within a few hours, did not have reasonable cause to believe that the

children were in imminent danger. Viewing the facts in the light most favorable to


                                            4
Anderson-Francois, Conners knew that the investigation had been ongoing for over

six weeks, that the evidence of abuse was contradicted, and that the most recent

instance of confirmed abuse was several months prior to the removal date. Thus,

because a jury could conclude that Conners violated a clearly established

constitutional right, Conners is not entitled to qualified immunity.

Qualified Immunity: Newman 2

      We also affirm the district court’s ruling that Newman is not entitled to

qualified immunity. Anderson-Francois’ evidence, if credited by a jury, could

support a finding that Newman, as the primary investigator, had to be aware that,

for the reasons described above, the facts elicited in the investigation did not

suggest that the children would be in imminent danger if not removed from their

homes within the few hours required to obtain a warrant. Moreover, the evidence

viewed in the light most favorable to Anderson-Francois could support a finding

that Newman not only provided input into the warrant question, but also made a



      2
             Anderson-Francois contends that Newman waived his right to appeal
because he did not argue in the district court that he was entitled to qualified
immunity. But Newman did raise qualified immunity below, if only in passing.
See Mot. for Summ. J. at 27, Anderson-Francois v. Cnty. of Sonoma, et. al, No. 08-
00724 (N.D. Cal. May 22, 2009), ECF No. 56. Moreover, the district court appears
to have ruled that neither Newman nor Conners was entitled to immunity. See
Anderson-Francois v. Cnty. of Sonoma, 2009 U.S. Dist. LEXIS 44176, at *20
(N.D. Cal. May 22, 2009).

                                           5
“joint” decision with Conners that warrantless removal was proper.

      “[D]irect, personal participation is not necessary to establish liability for a

constitutional violation” and a plaintiff need only show that it was “reasonably

foreseeable that the actions of the . . . defendants would lead to the rights violations

alleged to have occurred . . . .” See Kwai Fun Wong v. United States, 373 F.3d

952, 966 (9th Cir. 2004). Here, a jury would have a basis for finding that it was

reasonably foreseeable that Newman’s input and participation in the removal

decision would lead to a violation of Anderson-Francois’ constitutional rights.

Accordingly, and in light of the fact that the right was clearly established, Newman

is not entitled to qualified immunity.

Monell Liability

      Anderson-Francois’ claim against the County arises under Monell v. Dep’t of

Soc. Services of N.Y., 436 U.S. 658 (1978). Anderson-Francois alleges that the

County failed to give adequate training to its social workers with respect to the due

process principles governing removal of children from a parental home, and

thereby demonstrated deliberate indifference to Anderson-Francois’ constitutional

rights. The County appeals the district court’s ruling that there was a triable issue




                                           6
of fact on the Monell claim.3

      “[T]he rule announced in Mitchell v. Forsyth [472 U.S. 511(1985)] that

individual defendants can appeal from the denial of a motion for a summary

judgment to obtain review of the merits of their qualified immunity defense does

not empower a federal court to consider the denial of a municipality’s motion for a

summary judgment in a § 1983 action.” Huskey v. City of San Jose, 204 F.3d 893,

902 (9th Cir. 2000); see also Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 38

(1995). However, “pendent party appellate jurisdiction may be permissible under

the ‘inextricably intertwined’ exception . . . .” Huskey, 204 F.3d at 904–05. “Only

where essential to the resolution of properly appealed collateral orders should

courts extend their . . . jurisdiction to rulings that would not otherwise qualify for

expedited consideration.” Swint, 514 U.S. at 51 (internal quotation marks



      3
              The County’s appeal does not address with specificity the adequacy of
training issue. A joint appellate brief was filed on behalf of Newman and the
County, and that brief simply argues that Anderson-Francois failed to present
sufficient facts to demonstrate that Newman violated her constitutional rights, and
thus that the Monell claim against the County should fail. See Newman Blue Br.
35–36. Because we find that Anderson-Francois’ evidence could support a finding
that Newman violated her consitutional rights, we must determine whether we have
jurisdiction to address the substance of the Monell claim—i.e., the adequacy of the
County’s training program. Moreover, because we ultimately find we do not have
jurisdiction to entertain the County’s appeal, we need not reach the question
whether the County, by virtue of its minimalist appellate briefing, has waived
consideration of the training issue on this appeal.

                                           7
omitted).

      Because our resolution of Newman’s qualified immunity appeal does not

implicate the adequacy of the County’s training program, we cannot entertain the

County’s appeal. See Huskey, 204 F.3d at 905–06 (pendent jurisdiction over

Monell ruling not available where “ruling on the merits of the collateral qualified

immunity appeal did not resolve all of the remaining issues presented” by Monell

ruling). Accordingly, the County’s appeal is dismissed for want of jurisdiction.

      AFFIRMED AND REMANDED.




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