189 F.3d 808 (9th Cir. 1999), 97-15385, Calabretta v. Floyd

Docket Nº:97-15385
Citation:189 F.3d 808
Party Name:ROBERT CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children; SHIRLEY CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children, Plaintiffs-Appellees, v. JILL FLOYD, individually and in her Official capacity as a Caseworker of Yolo County Departm
Case Date:August 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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189 F.3d 808 (9th Cir. 1999)

ROBERT CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children; SHIRLEY CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children, Plaintiffs-Appellees,


JILL FLOYD, individually and in her Official capacity as a Caseworker of Yolo County Department of Social Services; YOLO COUNTY DEPARTMENT OF SOCIAL SERVICES; NICHOLAS SCHWALL, individually and in his official capacity with Woodland Police Department; USSELL SMITH, individually and in his official capacity as Chief of Police of the Woodland Police Department; WOODLAND POLICE DEPARTMENT, Defendants-Appellants.


United States Court of Appeals, Ninth Circuit

August 26, 1999

Argued and Submitted June 8, 1998

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[Copyrighted Material Omitted]

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J. Scott Smith, Angelo, Kilday and Kilduff, Sacramento, California, for the defendants-appellants.

Michael P. Farris, Home School Legal Defense Association, Paeonian Springs, Virginia, for the plaintiffs-appellees.

Stephen Bailey (briefed), Placerville, California, for the plaintiffs-appellees.

Thomas R. Yanger (briefed), Deputy Attorney General, Sacramento, California, for amicus State of California Ex Rel. Eloise Anders, Director of the California State of Social Services.

Kevin T. Snider (briefed), United States Justice Foundation, Escondido, California, for amicus United States Justice Foundation and Christian Action Network.

Appeal from the United States District Court for the Eastern District of California. Lawrence K. Karlton, District Judge, Presiding, D.C. No. CV-95-00345-LKK/PAN.

Before: J. Clifford Wallace, Thomas G. Nelson and Andrew J. Kleinfeld, Circuit Judges.

KLEINFELD, Circuit Judge:

This case involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.


The two individual defendants moved for summary judgment based on qualified immunity. The district judge denied it.

Some individual called the Department of Social Services October 27, 1994, with the information that gave rise to this case. The report says that the caller was anonymous, but the report redacts names, thus it is not clear whether the caller gave her name but the Department treated her as anonymous, or whether she refused to give her name. The caller said that she was once awakened by a child screaming "No Daddy, no" at 1:30 A.M. at the Calabretta home. Then two days ago she (or someone else, possibly a Department of Social Services employee - it is not clear from the report) heard a child in the home scream "No, no, no" in the late afternoon. The caller said that the children "are school age and home studied" and that "this is an extremely religious family."

The report was put into the in box of defendant Jill Floyd, a social worker in the Department. She checked the Department files to see whether the Calabretta family had any "priors," or had ever been on welfare, and ascertained that they had no priors and had never been on welfare. She did not attempt to interview the person who had called in the report.

On October 31, four days after the call, the social worker went to the Calabretta home to investigate. Mrs. Calabretta, the

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children's mother, refused to let her in. The children were standing at the door with their mother, and the social worker noted on her report that they "were easily seen and they did not appear to be abused/neglected."

The social worker was about to go on vacation, so she requested that someone else be assigned to the case, but the investigation had not been completed when she returned. On November 10, fourteen days after the call and ten days after the first visit, the social worker returned to the Calabretta house with a policeman. She did not tell the police dispatcher about the specific allegations, just that she needed police assistance to gain access so that she could interview the children. Officer Nicholas Schwall met the social worker at the Calabretta house, knowing nothing about the case except that he had been assigned to assist her. She told him that they had received a report of the children crying, and he understood her to mean that they might have been beaten.

The policeman knocked, Mrs. Calabretta answered, and the policeman said they were checking on the children's welfare because someone had reported children crying. Mrs. Calabretta did not open the door, and said she was uncomfortable letting them in without her husband at home. The police officer had the opinion that in any check on the welfare of children "there is an exigent circumstance" so no search warrant is needed. Mrs. Calabretta and Officer Schwall disagreed in their depositions on whether Officer Schwall told her that if she did not admit them, then he would force their way in. Appellants concede that for purposes of appeal, the entry must be treated as made without consent.

The social worker then took Mrs. Calabretta's twelve year old daughter into one room while the policeman stayed with the mother in another. The twelve year old did not remember any of the children screaming "No, Daddy, no, " but did recall that at about the date of the report, her little brother hurt himself in the backyard and screamed "no, no, no. " The social worker asked what kind of discipline the parents used, and understood the twelve year old to be saying that the parents used "a round, wooden dowel, very, very thin wooden dowel," about "twice as big . . . as a pen. " The three year old came into the room at that point and said "I get hit with the stick too." The twelve year old told her, according to the social worker's report, "that her parents do not discipline indiscriminately, only irreverence or disrespect. " The social worker wrote in her report "Minor is extremely religious made continual references to the Lord and the Bible. " The social worker testified that any physical means of disciplining children "raises a red flag" for her, and "I always counsel or advise parents on other ways of discipline before they resort to corporal punishment."

While the mother was still with the policeman in the other room, the social worker told the twelve year old to pull down the three year old girl's pants. She wanted to look at the three year old's buttocks to see whether there were marks. The twelve year old did not do so, and the three year old started crying. The mother heard her daughter crying and ran in. The twelve year old said "she wants me to take down Natalie's pants." The social worker said "I understand you hit your children with objects," and went on to say "It's against the California state law to hit your children with objects. And I found out that you hit your children with objects. And I need to see Natalie's bottom to see if there are bruises there." The policeman said "I'll leave you alone to do this" and backed off. The social worker said "The rod of correction?" Mrs. Calabretta answered, "Oh, it's just a little stick," referring to "a little Lincoln log, piece of Lincoln log roofing, nine inches long." Mrs. Calabretta "explained the Biblical basis of its use" to the social worker. The social worker repeated "It's against California law to hit your children with objects. This is breaking the law. And I insist on seeing her

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bottom." The three year old was screaming and fighting to get loose, the mother looked at the social worker to see whether she would relent, but she did not, and the mother pulled down the three year old's pants in obedience to the social worker's order.

There were no bruises or marks on the three year old's bottom. The social worker then insisted on seeing the piece of Lincoln log roofing, and Mrs. Calabretta showed it to her. The social worker then decided not to interview or examine the buttocks of any of the other children. She "had a brief conversation with the mother in which we discussed her looking into alternative forms of discipline."

The Calabrettas sued the social worker and policeman and other defendants for damages, declaratory relief and an injunction under 28 U.S.C. S 1983. The defendants moved for summary judgment on grounds of qualified immunity. The district court denied the defendants' motion, and the social worker and police officer appeal.


We have jurisdiction over interlocutory appeals from denials of summary judgments denying qualified immunity. 1 On summary judgment, "even in a qualified immunity case, we must assume the nonmoving party's version of the facts to be correct."2 Those facts must, of course, be established by evidence cognizable under Federal Rule of Civil Procedure 56. In this case, although the parties disagree on some details, the disagreements are not material to the outcome. We review denial of the qualified immunity claim de novo.3

A. The coerced entry

The social worker and police officer concede that for purposes of appeal, they should be treated as having entered the Calabretta home without consent. They argue that the district court erred in holding that their non-consensual entry required special exigency or a search warrant. Their theory is that an administrative search to protect the welfare of children does not carry these requirements, and the social worker was doing just what she was supposed to do under state administrative regulations. They claim immunity for entry into the home, interviewing the twelve year old, and strip searching the three year old.

"[G]overnment officials performing...

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