                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 08 2010

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




                            FOR THE NINTH CIRCUIT



DAVID BARRAGAN, individually; et al.,            No. 08-16790

             Plaintiffs - Appellants,            D.C. No. 3:06-cv-00310-LRH-
                                                 VPC
  v.

ROBIN LANDRY, individually, and as an            MEMORANDUM *
employee of the Division of Child
Protective Services of the State of Nevada
existing under the laws of the State of
Nevada; et al.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                     Argued and submitted November 6, 2009
                            San Francisco, California

Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, ** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge of the Eastern District of New York, sitting by designation.
      Students and their parents appeal the dismissal on summary judgment of

their 42 U.S.C. § 1983 claims against Robin Landry (“Landry”), rural manager of

the Nevada Division of Child and Family Services (“DCFS”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                           I

      We review the grant of summary judgment de novo. Guru Nanuk Sikh Soc’y

of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir. 2006). In order to

survive summary judgment concerning a 42 U.S.C. § 1983 violation, a plaintiff

must present evidence showing that (1) the complainant has been deprived of a

right “secured by the Constitution and the laws” of the United States and (2) the

action complained of was committed by a person acting under color of state law.

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155–56 (1978).

      The doctrine of qualified immunity provides immunity from a civil suit for

damages to a state actor who violates a constitutional right if the “contours of the

right” were not sufficiently clear at the time so that a reasonable official would

understand what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194,

202 (2001), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808

(2009). If the contours of the right were not clearly established, then we may

affirm on that basis without reaching the question of whether a constitutional


                                           2
violation has occurred. Pearson, 129 S.Ct. at 816 (internal quotation marks

omitted). Social workers may be entitled to qualified immunity for actions taken

during preliminary investigations. See Beltran v. Santa Clara County, 514 F.3d

906, 908–09 (9th Cir. 2008) (en banc) (per curiam), overruling Doe v. Lebbos, 348

F.3d 820 (9th Cir. 2003).

       “The protection of qualified immunity applies regardless of whether the

government official's error is ‘a mistake of law, a mistake of fact, or a mistake

based on mixed questions of law and fact.’” Id. at 815 (quoting Groh v. Ramirez,

540 U.S. 551, 567 (2004) (Kennedy, J., dissenting).

      After a careful de novo review of the record, the briefs, and arguments of the

parties, we conclude that Landry is entitled to qualified immunity because the

contours of the rights at issue in this case were not clearly established at the time of

the actions.

                                           II

      The student plaintiffs allege that Landry violated their Fourth Amendment

right to be free from unreasonable searches and seizures.

       In Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), we discussed a child’s

Fourth Amendment right to be free from seizure from his or her parents by a state

social worker or other child services employee. We held that:


                                           3
      Officials may remove a child from the custody of its 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.

Id. at 1138.

      We have recently held that a government official must have a court order,

parental consent, or exigent circumstances like those discussed in Wallis, before

seizing a child at school in order to investigate allegations that child has been the

victim of abuse. Greene v. Camreta, No. 06-35333, 2009 WL 4674129, at *14

(9th Cir. Dec. 10, 2009). We also held that the scope of the child’s Fourth

Amendment right at school was not clearly established prior to our announcement

in that case. Id. at *14–*15. Therefore, our qualified immunity analysis was

governed by the “lesser . . . standard” from New Jersey v. T.L.O., 469 U.S. 325,

341 (1985), which announced a rule with regard to “‘special needs’ cases” of

which government officials would have been aware. Greene, 2009 WL 4674129,

at *15. This is so because, where a defendant’s action are clearly unconstitutional

under a lesser standard that the defendant regards to be applicable, then qualified

immunity is not available—her “actions could not then be said to be ‘reasonabl[e],

but mistaken[ ]’ with regard to whether [the plaintiffs’] constitutional rights were




                                           4
violated.” Id. (quoting Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir.

2001)) (first and second alterations in Greene).

       As in Greene, T.L.O. announced the constitutional standard that “a

reasonable person would have known” to govern Landry’s conduct at the time of

the seizure of the children by DCFS. Pearson, 129 S.Ct. at 815 (citation omitted).

Under T.L.O., probable cause is not required. Rather, under T.L.O., a search or

seizure at a school is “reasonable” if it is “justified at its inception” and

“reasonably related in scope to the circumstances which justified the interference

in the first place.” 469 U.S. at 341. If Landry “‘could . . . have reasonably but

mistakenly believed that . . . her conduct did not violate’” that standard, she is

entitled to qualified immunity. Greene, 2009 WL 4674129, at *14 (quoting

Jackson, 268 F.3d at 641 (first omission in Greene).

       Landry and DCFS removed the children from the school after compiling a

significant amount of evidence of sexual activity at the school involving both

students and at least one staff member, problems with the provision of medical

care, poor living conditions in the trailer in which the male students had previously

been housed, the possible criminal record of two employees, and dearth of around-

the-clock supervision. Based on this evidence, Landry could reasonably have




                                            5
believed that DCFS was justified in removing the students from the school for their

own safety.

       Although it is not clear from the record precisely when DCFS contacted the

students’ parents, it is uncontroverted that some parents arrived before their

children had been housed in a new facility. And while DCFS placed some of the

students in youth prison facilities temporarily, it supervised the students itself,

isolating them from both the staff and youth at the prison. Therefore, Landry also

could reasonably have believed that the seizure was justified in its scope.

                                           III

       The parent plaintiffs have alleged violation of their Fourteenth Amendment

liberty interest in family integrity.

       In Wallis, we explained that “the same legal standard applies in evaluating

Fourth and Fourteenth Amendment claims for the removal of children” from the

custody of their parents. 202 F.3d at 1137 n.8. In Burke v. County of Alameda,

586 F.3d 725 (9th Cir. 2009), we extended our holding in Wallis to parents with

legal custody of their children, regardless of whether they also possess physical

custody. Id. at 733. However, we explained that the Wallis test “is flexible and

must take into account the individual circumstances” of each case. Id. In

particular, we noted that “if the parent without physical custody does not reside


                                            6
nearby,” and seizure is otherwise justified, “it is probably reasonable for a police

officer to place a child in protective custody without attempting to place the child

with the geographically distant parent.” Id. We also explained that failure to

contact a parent without physical custody of a child before taking that child into

protective custody was not clearly unlawful at the time of the challenged conduct

and granted the individual defendant qualified immunity. Id. at 734.

      To hold that the parents here can proceed with their claim, we would have to

determine that Wallis and Burke apply where a government official removed a

child from the physical custody of a potentially dangerous school with the purpose

of returning the student to his parents’ custody, and we would have to overlook the

physical distance between the school and the parents. More importantly, we would

have to determine that the scope of parents’ rights were more clearly established at

the time of the seizure than those of the students themselves, which we are

unwilling to do.

      Therefore, for the reasons discussed in the previous section, Landry could

reasonably have believed that any intrusion upon the parents’ liberty interest was

justified at its inception and reasonable in its scope.




                                            7
      Because Landry is entitled to qualified immunity as to both the Fourth and

Fourteenth Amendment claims, we affirm the district court’s grant of summary

judgment.

      AFFIRMED.




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