
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                               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.                                         -5-
