

                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 96-2351

                      JOHN DOE, ET AL.,

                   Plaintiffs, Appellants,

                             v.

                    BRUCE MOFFAT, ET AL.,

                   Defendants, Appellees.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Mary M. Lisi, U.S. District Judge]

                                        

                           Before

                   Selya, Boudin and Stahl,
                       Circuit Judges.

                                        

Gerard McG.DeCelles and Stephen A. DeLeo on brief for appellants.
Jeffrey B.  Pine, Attorney General,  and James R.  Lee, Assistant
Attorney General, on brief for appellees.

                                        

                        JUNE 11, 1997
                                        

          Per  Curiam.   We  have  carefully  considered  the

relevant case  law, the record and  the parties' briefs.   We

affirm the district  court's decision  substantially for  the

reasons                    stated                           in                             its                                 Memorandum and Order of October 22, 1996.

We add only the following comments.

     I. Damages Claims

     In the context of a  state actor's entry into a home  to

investigate                        a report of child abuse or neglect and to remove a

child                  from                       his                          parents'                                   custody, the standards under the Fourth

Amendment                      and                          the                             Due                                 Process Clause are essentially the same.1

The search fits within the exigent circumstances exception to

the                Fourth                      Amendment's                                  warrant requirement if "the state actors

making the search . . .  have reason to believe that life  or

limb is  in  immediate jeopardy  and  that the  intrusion  is

reasonably                       necessary                                to                                   alleviate the threat."  Good v. Dauphin

County Social Services, 891 F.2d 1087, 1094 (3d Cir.  1989). 

     Similarly, the Due  Process Clause tolerates  officials'

taking  custody  without  a prior  hearing  "if  a  child  is

immediately                        threatened with harm or is bereft of adequate care

   1 We assume, without deciding, that the Fourth Amendment's
warrant and probable cause requirements apply in this
context. But cf. McCabe v. Life-Line Ambulance Service, 77
F.3d 540 (1st Cir.) (reversing decision denying defendants'
motion for summary judgment on ground that city's policy of
permitting police officers to execute civil commitment orders
by means of forcible entries into private residences fell
within the "special need" exception to Fourth Amendment
warrant requirement), cert. denied,    U.S.   , 117 S. Ct.
275 (1996). 

                             -2-

or               supervision. . . . [I]t is sufficient if the officials have

been presented  with evidence  of serious  ongoing abuse  and

therefore have reason to fear imminent recurrence."  Robinson

v. Via, 821 F.2d 913, 922 (2d Cir. 1987).  See also Weller v.

Dept.                  of                     Social Services for Baltimore, 901 F.2d 387, 393 (4th

Cir. 1990) ("Due process does not mandate a prior hearing  in

cases where  emergency  action may  be  needed to  protect  a

child."); Lossman v.  Pekerske, 707 F.2d  288, 291 (7th  Cir.

1983)  ("When  a  child's  safety  is  threatened,  that   is

justification                          enough                                for                                    action first and hearing afterward.").

     "In order to survive the 'swing of the summary  judgment

axe,' the nonmoving  party must produce  evidence on which  a

reasonable                       finder of fact, under the appropriate proof burden,

could                  base                       a                         verdict for it; if that party cannot produce such

evidence,                      the                         motion                                must be granted."  Ayala-Gerena v. Bristol

Myers-Squibb                         Co., 95 F.3d 86, 94 (1st Cir. 1996) (quoting Mack

v.               Great                     Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 181

(1st Cir. 1989)).   Given appellants' failure to provide  any

factual support for their claims, the district court properly

                             -3-

took defendants' statement of uncontested facts as admitted.2

See id. at 95.

     Even                      if                         on                            the undisputed facts, viewed in the light most

favorable                      to                         appellants, a reasonable jury could conclude that

the                foregoing requirements of the Fourth Amendment and the Due

Process                    Clause were not met in this case, the defendants would

be entitled to qualified immunity.  No reasonable jury  could

conclude on these facts that defendants lacked an objectively

reasonable basis  for  their decision  to remove  the  infant

plaintiff.                                               S                        ee Hollingsworth v. Hill, 110 F.3d 733, 741 (10th

Cir. 1997);  Van  Emrik v.  Chemung  County Dept.  of  Social

Services, 911 F.2d 863, 866 (2d Cir. 1990).  With respect  to

defendant  Rhode Island  Department  of Children,  Youth  and

Families, "[i]t is settled beyond peradventure . . . that . .

.              a                state                      agency                            .                              .                                .                                  may not be sued for damages in a section

1983 action."  Johnson  v. Rodriguez, 943 F.2d 104, 108  (1st

Cir. 1991).

     II. Stay of Discovery

     Appellants                            argue that their ability to oppose the summary

judgment motion was hampered by the order staying  discovery.

   2  Appellants argue that they provided factual support in
the form of references to a transcript of a Rhode Island
Family Court proceeding.  As appellants concede, however,
that transcript was not submitted to the district court (nor
has it been submitted to this court) and, therefore, the
references thereto are mere "unsupported factual allegations"
which were properly disregarded by the district court. 
Ayala-Gerena, 95 F.3d at 95.

                             -4-

"It is well settled that the trial judge has broad discretion

in ruling on pre-trial management matters, and we review  the

district  court's  denial  of  discovery  for  abuse  of  its

considerable  discretion."   Ayala-Gerena,  95  F.3d  at  91.

Appellants' opposition to  summary judgment was  "deafeningly

silent                   as                      to                         their inability to oppose summary judgment due to

incomplete discovery."  Id. at 92.  Appellants still have not

identified how their opposition was hampered by the  district

court's order staying discovery.  Under these  circumstances,

appellants' argument that  summary judgment was premature  in

this case is without merit.  See R.W. Intern. Corp. v.  Welch

Food, Inc., 13 F.3d 478, 488 (1st Cir. 1994).

     The district court  judgment is affirmed.   See Loc.  R.

27.1.

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