                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 06 2010

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




                            FOR THE NINTH CIRCUIT



BRIGIT BARNES, an individual and                 No. 09-16805
Guardian ad Litem for Minor Children
R.X. and M.X. and JERRY BARNES, an               D.C. No. 2:07-CV-01678-JAM-
individual,                                      JFM

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

COUNTY OF PLACER, EMILY HILL,
an individual and employee of the County
of Placer, DEPUTY HARROUN, an
individual and employee of the County of
Placer and DOES 1-50 INCLUSIVE,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     John A. Mendez, District Judge, Presiding

                        Argued and Submitted June 18, 2010
                             San Francisco, California

Before: TASHIMA and BEA, Circuit Judges, and READE, Chief District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Brigit Barnes (“Brigit”), an individual and guardian ad litem of two minor

grandchildren, M.X. and R.X., and Jerry Barnes (“Jerry”), Brigit’s husband and co-

guardian, (collectively, “Plaintiffs”) appeal the district court’s order granting

summary judgment to the County of Placer, Emily Hill, Deputy Rick Harroun and

Does 1-50, inclusive, (collectively, “Defendants”) on Plaintiffs’ claims that

Defendants deprived them of their Fourth and Fourteenth Amendment rights in

violation of 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.1

      We review de novo the district court’s grant of summary judgment to

determine “whether, viewing the evidence in the light most favorable to the non-

moving party, there are any genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.” Pinard v. Clatskanie Sch.

Dist. 6J, 467 F.3d 755, 763 (9th Cir. 2006) (citation and internal quotation marks

omitted).

      Because the district court based its ruling on the second prong of the

qualified immunity analysis set forth in Saucier v. Katz, 533 U.S. 194, 200 (2001),

we confine our analysis to this issue. We conduct a two-part analysis of Saucier’s



          **
            The Honorable Linda R. Reade, Chief United States District Judge,
Northern District of Iowa, sitting by designation.
      1
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                           2
second prong: “1) Was the law governing the official’s conduct clearly

established?” and “2) Under that law, could a reasonable official have believed the

conduct was lawful?” Rogers v. County of San Joaquin, 487 F.3d 1288, 1296-97

(9th Cir. 2007) (citation and internal quotation marks omitted). “To be clearly

established, the contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Ramirez v.

City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (citation and internal

quotation marks omitted). “The dispositive inquiry is whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation he confronted.”

Id. (citation and internal quotation marks omitted). If the official’s mistake as to

what the law requires is “reasonable,” the defense applies. Id. (citation omitted).

      On Wednesday, April 26, 2006, M.X.’s teacher filed a report of child abuse

with Child Protective Services. The report included the following information:

M.X. had bruises on the back of her thigh, M.X. stated she got the bruises when

Jerry spanked her over the past weekend, M.X. had worn pants on Monday and a

long skirt under her school uniform on Tuesday in what her teacher speculated

might have been an effort to cover up the bruises, Jerry was very stern with the

children, and Jerry had yelled at school staff that morning in front of M.X.

      That same day, Placer County social worker Emily Hill read the report filed

by M.X.’s teacher and arrived at the school at 1:30 p.m. Jerry was expected to pick



                                           3
up M.X. and R.X. from school at 3:00 p.m.2 Hill interviewed M.X., confirmed

Jerry struck M.X. with an object four days earlier, and called the sheriff’s office.

At 2:10 p.m., Deputy Harroun responded and met with Jerry when he arrived at the

school around 3:00 p.m. At most, Hill and Harroun had one-and-a-half hours to

investigate the suspected child abuse. Hill stated in a declaration that it typically

takes three to six hours to get a court order to take a child into protective custody.

When they decided to take M.X. and R.X. into protective custody without a

warrant, Hill and Harroun knew: (1) Jerry hit M.X. hard enough to leave noticeable

marks on her legs four days later; (2) Brigit had struck M.X. with a spatula in the

past; (3) Jerry had yelled at school staff in front of M.X. earlier that day; (4)

M.X.’s teacher suspected M.X. had been wearing clothing to cover her bruises; and

(5) Jerry told Harroun that he might hit M.X. again under similar circumstances.

      On May 1, 2006, four days after M.X. and R.X. were initially placed in

protective custody, the Placer County Juvenile Court (“Juvenile Court”)

determined M.X. and R.X should remain in protective custody. On May 19, 2006,

the Juvenile Court ordered Placer County to return M.X. and R.X. to Brigit’s

custody. On July 5, 2006, the Juvenile Court permitted Jerry to return home

following his completion of anger management classes.




      2
          M.X. was eight years old and her sister, R.X., was five years old.

                                            4
      We agree with the district court’s analysis. “Officials may remove a child

from the custody of [her] parent without prior judicial authorization only if the

information they possess at the time of the seizure is such as provides reasonable

cause to believe that the child is in imminent danger of serious bodily injury and

that the scope of the intrusion is reasonably necessary to avert that specific injury.”

Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). It is well established that

“serious allegations of abuse that have been investigated and corroborated usually

give rise to a ‘reasonable inference of imminent danger sufficient to justify taking

children into temporary custody’ if they might be beaten or molested during the

time it would take to get a warrant.” Rogers, 487 F.3d at 1294 (quoting Ram v.

Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997)). But it was not clearly established as

of April 26, 2006 that the facts known to the officials in this case did not constitute

reasonable cause. A reasonable official could have believed, based on the facts

known to Hill and Harroun, that there was reasonable cause to believe the children

were in imminent danger of serious bodily harm and that the decision to place the

children in protective custody was lawful.

      The district court correctly decided Hill and Harroun were entitled to

qualified immunity even though they failed to contact Brigit before they placed

M.X. and R. X. in protective custody. It was not clearly established as of April 26,

2006, that officials must contact a child’s second legal guardian before they place



                                           5
the child in protective custody when that guardian lives with another guardian, who

the officials reasonably suspect is abusing the child. When Hill decided not to call

Brigit, Hill knew that Brigit lived with Jerry, who was suspected of abusing M.X.

Also, Hill had learned from M.X. that Brigit had spanked M.X. with a spatula and

had learned that M.X.’s teacher suspected M.X. had been wearing clothes to cover

up her bruises. A reasonable official could have believed that the decision to place

the children in protective custody before contacting Brigit was lawful.

      The district court correctly granted summary judgment to Hill and Harroun

with respect to the Barneses’ claim that the continued “detention” of the children

after their initial removal from school violated the Barneses’ Fourteenth

Amendment due process right to familial association. “[O]nly official conduct that

‘shocks the conscience’ is cognizable as a due process violation.” Porter v.

Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Here, the district court correctly

concluded that neither Hill nor Harroun engaged in conduct that shocks the

conscience in their investigation of the alleged abuse of M.X.

          The district court also correctly decided that qualified immunity bars the

§ 1983 claims for custody decisions subsequent to the Juvenile Court’s order.

Mabe v. San Bernadino County Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1109

(9th Cir. 2001) (discussing qualified immunity in custody matters following court

order).



                                             6
      Accordingly, the district court correctly granted summary judgment.

McSherry v. City of Long Beach, 584 F.3d 1129 (9th Cir. 2009) (affirming grant of

summary judgment on qualified immunity).

      AFFIRMED.




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