     Case: 10-41035     Document: 00511657333         Page: 1     Date Filed: 11/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 7, 2011

                                       No. 10-41035                        Lyle W. Cayce
                                                                                Clerk

EDWARD WERNECKE, Individually; MICHELLE WERNECKE, Individually;
KATIE WERNECKE, Previously a minor, now of majority age in her own
individual capacity; JONATHAN WERNECKE, Previously a minor, now of
majority age in his own individual capacity,

                                                  Plaintiffs - Appellants

v.

LINDA KIM GARCIA, In her individual capacity,

                                                  Defendant - Appellee



                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:07-CV-238


Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        This action in 2007 under 42 U.S.C. § 1983 by Edward and Michelle
Wernecke, individually and on behalf of their then four minor children, claimed
violations of the Fourth and Fourteenth Amendments. In 2009, defendants were
awarded summary judgment on most of the claims. Summary judgment was


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 10-41035

denied Linda Kim Garcia and another, in their individual capacities, for which
they pursued an interlocutory appeal. Wernecke v. Garcia, 591 F.3d 386 (5th
Cir. 2009). On remand, the parties settled in part, and judgment dismissing all
claims was entered in 2010.
      This appeal from that final judgment concerns only Garcia and the district
court’s ruling in 2009 that an earlier Texas state-court proceeding precluded
claims arising from the State’s taking custody of their daughter Katie Wernecke.
Conceding that ruling was erroneous, Garcia instead claims qualified immunity.
Along that line, the Werneckes’ post-argument motion to reverse and remand for
reconsideration is DENIED. Based on qualified immunity, the judgment is
AFFIRMED.
                                       I.
      Katie Wernecke, then minor daughter of Edward and Michelle Wernecke,
was diagnosed with Hodgkin’s disease in January 2005. She was treated with
chemotherapy in spring 2005 at Driscoll Children’s Hospital in Corpus Christi,
Texas.     Following chemotherapy, her physician recommended radiation
treatment. Her parents refused, at least initially, to consent.
      On 26 May 2005, the Texas Department of Family and Protective Services
(TDFPS) received a report of medical neglect regarding Katie Wernecke. The
report stated: the Werneckes were told on 29 April of her need for radiation;
despite a second opinion recommending radiation, her parents intended to treat
her at home with herbal pills; and, she had symptoms suggesting her tumor was
growing.
      The next day, Garcia of TDFPS spoke to Katie Wernecke’s physician, who
said she needed to start radiation within ten days to prevent recurrence of the
cancer. Garcia then spoke to Mrs. Wernecke and explained TDFPS would
intervene if the Werneckes had not, by 31 May, scheduled an appointment for
Katie Wernecke to receive radiation on or before 6 June.

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                                 No. 10-41035

      On 1 June, Garcia was informed by a social worker at Driscoll of the
following: the Werneckes had requested that day that Katie Wernecke be
referred to an oncologist for radiation; but, the referral could not be made
because the requested physician was not certified in pediatric radiology. TDFPS
then filed in state court in Nueces County a petition seeking emergency
temporary custody of Katie Wernecke. In her supporting affidavit, Garcia
included the above facts, except that the Werneckes had requested a referral and
that the referral could not be made. A Nueces County judge ordered the same
day that TDFPS be given temporary custody of Katie Wernecke.
      Around 5:30 that evening, Garcia, accompanied by another TDFPS
employee and two deputy constables, went to the Wernecke home to take custody
of Katie Wernecke. Upon their arrival, Mr. Wernecke told them she was not at
home and refused to say where she was. After an extended discussion with Mr.
Wernecke, the deputies and TDFPS employees entered the home.              While
searching, Garcia observed the “deplorable” condition of the home and, after
conferring with her supervisor, Trainer, removed the two minor boys who were
present. On 4 June, Katie Wernecke was found and placed in TDFPS custody.
      The Werneckes filed this § 1983 action against TDFPS, Nueces County,
the two deputies, and six TDFPS employees, including Garcia and Trainer,
claiming violations of the Fourth and Fourteenth Amendments. Defendants
were awarded summary judgment on claims arising from the seizure of Katie
Wernecke.    The district court ruled those claims precluded, because the
Werneckes had “a full and fair opportunity to litigate the issue” during a state-
court hearing on 15-16 June 2005, at the conclusion of which Katie Wernecke
had been ordered to remain in TDFPS custody for treatment.
      The district court denied summary judgment (denial of qualified
immunity), however, to Garcia and Trainer on the claims of unreasonable search
of the home and unjustified seizure of the boys. From this qualified-immunity

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denial, Garcia and Trainer pursued an interlocutory appeal. Our court, inter
alia, upheld the denial of summary judgment for Garcia for the claim concerning
seizure of the boys. Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009). On
remand, the parties settled that claim, and judgment was entered dismissing all
claims.
                                       II.
      The Werneckes challenge only the summary judgment awarded Garcia,
based on their claims regarding the seizure of Katie Wernecke being precluded.
They contend Garcia committed a constitutional violation by omitting before the
Nueces County judge that they had requested Katie Wernecke be referred for
radiation.
      A summary judgment is reviewed de novo. E.g., Berquist v. Wash. Mut.
Bank, 500 F.3d 344, 348 (5th Cir. 2007). Summary judgment is proper if “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law”. FED. R. CIV. P. 56(a).
      The Werneckes maintain Garcia violated:            the Fourth Amendment
protection against unreasonable seizure (as applied against the States by the
Fourteenth Amendment); and, the Fourteenth Amendment (substantive due
process) right to family integrity.    Their due-process claim is waived for
inadequate briefing. FED. R. APP. P. 28(a)(9)(A).
                                       A.
      Garcia concedes the district court erred in granting summary judgment
sua sponte on the grounds of claim and issue preclusion. Compare Baker v.
Metro. Life Ins. Co., 364 F.3d 624, 632 (5th Cir. 2004) (“a district court may not
grant summary judgment sua sponte on grounds not requested by the moving
party” (citation and internal quotation marks omitted)), with FED. R. CIV. P.
56(f)(2) (as amended 2010) (“[a]fter giving notice and a reasonable time to
respond, the court may . . . grant the [summary-judgment] motion on grounds

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                                  No. 10-41035

not raised by a party”). The district court’s having failed to give the Werneckes
notice, its preclusion ruling was improper under both Baker and Rule 56(f)(2).
                                        B.
      Garcia contends our court, nevertheless, should affirm the summary
judgment on the basis of qualified immunity, as asserted in her summary-
judgment motion. E.g., Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812
(5th Cir. 2010) (summary judgment may be affirmed “on any grounds supported
by the record and presented to the [district] court”).
      “Although nominally an affirmative defense, the plaintiff has the burden
to negate the assertion of qualified immunity once properly raised.” Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). Qualified immunity shields from
civil liability government officials performing discretionary functions “insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known”. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).      Therefore, to overcome qualified immunity for
summary-judgment purposes, a plaintiff must: (1) present evidence creating a
genuine dispute on whether the official violated a statutory or constitutional
right; and, (2) demonstrate that right was clearly established. Saucier v. Katz,
533 U.S. 194, 201 (2001). See also Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(courts may “exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first”).
                                        1.
      The Fourth Amendment applies to social workers’ civil investigations.
E.g., Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th
Cir. 2002). An official violates that Amendment when, inter alia, she “knowingly
and intentionally, or with reckless disregard for the truth” makes a false
statement or omission that results in the issuance of a warrant without probable
cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Hale v. Fish, 899 F.2d

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390, 400 (5th Cir. 1990) (applying Franks to omissions); Gates v. Tex. Dep’t of
Protective & Regulatory Servs., 537 F.3d 404, 429 n.16 (5th Cir. 2008) (court
order under provision at issue is equivalent to warrant for Fourth Amendment
purposes).
      “To determine whether facts omitted from a warrant affidavit are material
to the determination of probable cause, courts ordinarily insert the omitted facts
into the affidavit and ask whether the reconstructed affidavit would still support
a finding of probable cause.” Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir.
2006). Insertion of the omitted facts–the Werneckes requested a referral, but
the referral could not be made because the physician was not certified to treat
Katie Wernecke–does not reconstruct the affidavit so as to preclude finding:
                     (1) there is an immediate danger to the physical
               health or safety of the child . . . and that continuation in
               the home would be contrary to the child’s welfare;
                     (2) there is no time, consistent with the physical
               health or safety of the child, for a full [adversarial
               hearing]; and
                     (3) reasonable efforts, consistent with the
               circumstances and providing for the safety of the child,
               were made to prevent or eliminate the need for the
               removal of the child.

TEX. FAM. CODE § 262.102.
      Therefore, the Werneckes have not shown, for summary-judgment
purposes, a genuine dispute on whether Garcia’s omissions resulted in the
issuance of an order without adequate grounds. Accordingly, they have not
made a sufficient showing of a constitutional violation prerequisite to
overcoming summary judgment based on qualified immunity. See Saucier, 533
U.S. at 201.




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                                  No. 10-41035

                                        2.
      In the alternative, for summary-judgment purposes, the Werneckes do not
show a genuine dispute on whether Garcia’s conduct was other than “objectively
reasonable under clearly established law”. E.g., Hampton v. Oktibbeha Cnty.
Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).
      The Werneckes contend: it was clearly established at the time of Garcia’s
conduct that social workers were subject to the Fourth Amendment; and, a
reasonable official would have known it is illegal to omit “critical” information
from an affidavit. These contentions do not satisfy the test. “This inquiry, it is
vital to note, must be undertaken in light of the specific context of the case, not
as a broad general proposition”. Saucier, 533 U.S. at 201.
      Garcia’s conduct cannot give rise to civil liability unless a reasonable
official in her circumstances would have known her conduct violated the
Constitution. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Defendant’s
circumstances include facts known to defendant. Thompson v. Upshur Cnty.,
245 F.3d 447, 457 (5th Cir. 2001). It is not disputed Garcia knew, at the time of
her affidavit, both that the Werneckes had requested a referral and that the
referral could not be made because the physician was not certified in pediatric
radiology. For summary-judgment purposes, the Werneckes fail to show a
genuine dispute on whether a reasonable official would have necessarily believed
omitting the exculpatory fact that a referral was requested, along with the
inculpatory fact that the requested physician was not certified, would violate the
Constitution.
                                       III.
      For the foregoing reasons, the Werneckes’ post-argument motion to reverse
and remand for reconsideration is DENIED; the judgment is AFFIRMED.




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