The opinion
FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MATT FREDENBURG, individually, and No. 09-16396
as guardian ad litem for his minor children,
A.F., M.F., and E.F.; and KIM D.C. No. 5:07-cv-04412-JW
FREDENBURG,
Plaintiffs - Appellees, MEMORANDUM *
v.
COUNTY OF SANTA CLARA; et al.,
Defendants,
and
PETE PROLO, individually, and as an
employee of the City of Milpitas,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Pete Prolo ('Officer Prolo') appeals the district court's summary judgment
order denying him qualified immunity with respect to the Fredenburgs' false
imprisonment and Fourth and Fourteenth Amendment claims under 42 U.S.C.
y 1983. This court has jurisdiction pursuant to 28 U.S.C. y 1291. We affirm.
The facts alleged by the Fredenburgs show that Officer Prolo's conduct
violated a clearly established constitutional right. See Saucier v. Katz, 533 U.S.
194, 201 (2001). The Fourteenth Amendment 'guarantee[s] that parents and
children will not be separated by the state without due process of law except in an
emergency.' Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000); accord Mabe
v. San Bernardino Cnty., Dept. of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.
2003). Accordingly, officials may remove a child from his or her parents only
when they have '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, 202 F.3d at 1138. Here, although Officer Prolo
had reasonable cause to remove the children from Mrs. Fredenburg, he failed to
determine or even consider whether Mr. Fredenburg posed a threat to the children
before removing the children from him and placing them with a social worµer. See
id. at 1140-41, 1142 n.14 ('The government may not, consistent with the
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Constitution, interpose itself between a fit parent and her children simply because
of the conduct--real or imagined--of the other parent.' (emphasis added)).
The right to familial association free from government intrusion, absent
reasonable cause to believe both parents pose a threat to the children, was clearly
established in Wallis, a case that predates Officer Prolo's conduct. See id. at 1138,
1140-41, 1142 n.14. Here, as in Wallis, one of the children's parents was not
implicated in the criminal investigation and was immediately available to taµe
custody of the children. Id. at 1140-41. The Fredenburgs allege Officer Prolo was
aware that Mr. Fredenburg and his parents were at the police station, but declined
to question or otherwise investigate Mr. Fredenburg before deciding to place the
children with child protective services. On summary judgment review, we must
taµe 'the version of the material facts asserted by the [Fredenburgs] to be correct.'
Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001) (quotation marµs and
citation omitted). Given that standard, '[t]here is no evidence that the children
could not have been [placed] with their [father] . . . . A genuine issue of material
fact exists therefore as to whether the removal of the children from their [father]'s
custody . . . was sufficiently 'strictly circumscribed by the exigency that justified'
[Officer Prolo]'s intrusion into the children's lives.' Wallis, 202 F.3d at 1140-41
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(quoting Good v. Dauphin Cnty. Soc. Servs. for Children and Youth, 891 F.2d
1087, 1093 (3d Cir. 1989)).
AFFIRMED.
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FILED
Fredenburg v. Prolo, No. 09-16396 DEC 22 2010
MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS
The majority may be correct that (1) given the language of the statute and
(2) construing the facts in the light most favorable to the plaintiffs, Officer Prolo's
conduct violated a constitutional right. However, I respectfully dissent from their
conclusion that the right was clearly established.
'[T]he right the official is alleged to have violated must have been 'clearly
established' in a more particularized, and hence more relevant, sense: The
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.' Saucier v. Katz, 533 U.S.
194, 202 (internal quotation marµs and citation omitted). Moreover, the test in
Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), 'is flexible and must taµe into
account the individual circumstances.' Burµe v. County of Alameda, 586 F.3d 725,
733 (9th Cir. 2009). Applying this standard to the alleged facts, the right Officer
Prolo allegedly violated was not clearly established as of August 9, 2006.
The district court found that Officer Prolo acted with reasonable cause when
he tooµ emergency custody of the children from Mrs. Fredenburg. Although
Wallis recognized that officials may remove children from their parents only with
'reasonable cause to believe that the child is in imminent danger of serious bodily
1
injury,' 202 F.3d at 1138, it did not clearly establish that, once children have
already been lawfully removed from one parent, officers must investigate an absent
parent to retain protective custody. It is undisputed that Mr. Fredenburg was not
present when officers lawfully removed the children from their mother's custody,
and that the children were still in protective custody when Officer Prolo turned
them over to child protective services. Given the flexible standard in Wallis, and
taµing into account these individual circumstances, 'the law did not put [Officer
Prolo] on notice that his conduct would be clearly unlawful[; therefore], summary
judgment based on qualified immunity is appropriate.' Saucier, 533 U.S. at 202.
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