237 F.3d 1101 (9th Cir. 2001), 98-56561, Mabe v. San Bernardino County

Docket Nº:98-56561
Citation:237 F.3d 1101
Party Name:MATILDA MABE, Plaintiff-Appellant, v. SAN BERNARDINO COUNTY, DEPARTMENT OF PUBLIC SOCIAL SERVICES; KAREN PERRY; JEFF LUTHER; BRENDA WALKER; KATHY MCBRIDE; DAN SHOREE; CHUCK MCATEE; STEPHANIE RUMPLER, Defendants-Appellees.
Case Date:January 24, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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237 F.3d 1101 (9th Cir. 2001)

MATILDA MABE, Plaintiff-Appellant,

v.

SAN BERNARDINO COUNTY, DEPARTMENT OF PUBLIC SOCIAL SERVICES; KAREN PERRY; JEFF LUTHER; BRENDA WALKER; KATHY MCBRIDE; DAN SHOREE; CHUCK MCATEE; STEPHANIE RUMPLER, Defendants-Appellees.

No. 98-56561

United States Court of Appeals, Ninth Circuit

January 24, 2001

Argued and Submitted October 10, 2000

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Brett J. Williamson, Peter R. Afrasiabi, Christopher W. Arledge, O'Melveny & Myers LLP, Newport Beach, California, for the plaintiff-appellant.

Dennis E. Wagner, Deputy County Counsel; Regina A. Cole- man, Deputy County Counsel; and Alan K. Marks, County Counsel, San Bernardino, California, for the defendants- appellees County of San Bernardino, Karen Perry, Jeff Luther, Kathy McBride, Dan Shoree and Chuck McAtee.

Janet Stouder-Brandon, San Bernardino, California, for defendant-appellee Stephanie Rumpler.

Appeal from the United States District Court for the Central District of California Robert J. Timlin, District Judge, Presiding. D.C. No.CV-96-00325-RT

Before: Robert Boochever, A. Wallace Tashima and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge:

We review the propriety of actions taken during the course of a child abuse investigation and subsequent dependency proceedings. Matilda Mabe sued, on various state and federal grounds, the social worker conducting the investigation, certain supervisors and colleagues, the county agency that employs them, and two individuals who later provided foster care to Mabe's minor daughter. The district court granted summary judgment in favor of all defendants on all claims. Mabe argues that Appellees are liable for damages under 42 U.S.C. § 1983 for their actions in removing Mabe's daughter (MD1) from her home without a warrant and subsequently placing her in foster care. We affirm in part and reverse and remand in part because there is a material question of fact regarding the liability of the investigating county social worker.

I. Background.

On July 19, 1995, the San Bernardino County Sheriff's Department received a call from Stephanie Rumpler that her younger sister, MD, at the time a 14-year-old minor, had been molested by her stepfather, Mabe's husband. MD reported that the stepfather had touched her

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breasts and crotch area through her clothing at night in her bedroom and that this had been occurring every other night for the past two or three months. At the time of the initial telephonic report to police, MD was visiting her sister in Northern California. A few days later, MD returned to the home shared by Mabe and the step- father in San Bernardino County.

The deputy sheriff who took MD's complaint contacted Mabe, who responded that MD made up stories and embel- lished facts. Next, the deputy spoke to the stepfather, who stated that MD was lying. No criminal charges were ever filed against the stepfather.

Appellee Karen Perry, a San Bernardino County social worker with the Department of Social Services, was assigned the case. Perry spoke with the deputy sheriff regarding his conversations with Rumpler, MD, Mabe, and the stepfather. Perry learned that the stepfather had also allegedly "mooned" MD on some prior occasion when he exposed his buttocks to her.

Nearly one month after the initial telephonic report was made, on August 17, 1995, Perry interviewed both Mabe and MD at their home. According to Perry, Mabe claimed that no abuse had occurred and that the "mooning" incident by the stepfather was MD's fault because she had done it to him first. MD told Perry that no further acts had occurred since her return to their residence after the initial police report was made. Perry maintains that at the time of this interview she believed that there was child abuse in the home, that there was pressure being exerted on MD in retaliation for reporting the touching to authorities, and that the stepfather still had unrestricted access to MD. Nonetheless, Perry decided to leave MD in the home shared by Mabe, the stepfather, and MD. MD testified on deposition that during this interview Perry told MD that she would see whether she needed to remove MD from the home.

On August 21, 1995, four days after leaving MD in the home, Perry presented her report of MD's situation to an agency case review committee for evaluation. The committee recommended that MD be placed out of the home and that a California Welfare and Institutions Code § 300 child dependency petition be filed with the juvenile court. After receiving this recommendation, Perry and a sheriff's deputy went to Mabe's home later that day without a warrant and removed MD.

Both sides agree that Mabe did not consent to the officials' warrantless entry into her home. Nor did Perry give advance notice to Mabe that she would return to the home at this time. Mabe strongly objected to MD's removal from the home. Perry alleges that Mabe was very upset, allegedly harassing MD during the removal. Mabe insists that the stepfather told Perry that he was willing to leave the house if necessary to allow MD to remain in her mother's home.

The California juvenile court later found that there was substantial danger to the physical well-being of MD and that there were no reasonable services that would have allowed for her to remain safely in her mother's home. MD was initially placed in foster care and then the court gave temporary custody to Rumpler. MD's placement was monitored by Perry and other social workers for four years until dependency proceedings were dismissed when MD turned 18.

Mabe's lawsuit seeks damages from Perry, certain supervisors and colleagues, San Bernardino County, MD's initial fos- ter mother, and Rumpler. The district court dismissed several of the counts alleged in the original complaint against some of the defendants for failure to state a claim. Mabe's second amended complaint contained twenty-six causes of action including federal civil rights claims and state law claims. The County Appellees and Rumpler separately filed motions for summary judgment claiming immunity. A magistrate judge recommended that the defendants' motions be granted and the action be dismissed in its entirety. The district judge granted summary judgment to all

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defendants on all claims based in part upon a finding that the defendants were entitled to immunity. Mabe appeals.

II. Discussion.

A. Scope and Standards of Review.

We review the district court's grant of summary judgment de novo. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc). The type of immunity to which a public official is entitled is a question of law also reviewed de novo. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987).

Whether governing law was clearly established is a legal determination reviewed de novo. Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (qualified immunity). Whether specific facts constitute a violation of established law is a legal determination reviewed de novo. Armendariz v. Penman , 75 F.3d 1311, 1317 (9th Cir. 1996) (en banc) (assuming facts in light most favorable to nonmoving party). When examining the validity of a warrantless search and seizure, exigent circum- stances present a mixed question of law and fact reviewed de novo. United States v. Hudson, 100 F.3d 1409, 1417 (9th Cir. 1996).

B. Merits.

1. Liability of the Individual Appellees Under Section 1983.

Section 1983 creates a cause of action against any person who, acting under color of state law, violates the constitutional rights of another person. See 42 U.S.C. § 1983. The individual appellees say that either they did not personally cause Mabe's alleged constitutional violations or that they are immune from suit for their official actions, which precludes Mabe's recovery under section 1983.

When deciding whether a public official is immune from liability for acts performed in her official capacity, qualified immunity is the general rule and absolute immunity the exceptional case. See Zolin, 812 F.2d at 1108 (citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). It is well-settled that the immunity to which a public official is entitled depends not on the official's title or agency, but on the nature of the function that the person was performing when taking the actions that provoked the lawsuit. See id.

Mabe's claim against the individual appellees involves official conduct encompassing two different functions -- conduct relating to the removal of MD from her home and conduct involving the post-removal dependency proceedings. Because the immunity inquiry under section 1983 is different for the two governmental functions performed, we address each separately.

a. The Removal of MD. i. Liability of Perry for the Removal of MD.

Mabe argues that social worker Perry is not entitled to qualified immunity because her conduct in removing MD without a warrant was unlawful under the Constitution. Qualified immunity shields a government official from liability for civil damages if (1) the law governing the official's conduct was clearly established; and (2) under that law, the official objectively could have believed that her conduct was lawful. See Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997) (involving the qualified immunity of a social worker and a police officer).

Government officials are required to obtain prior judicial authorization before intruding on a parent's custody of her child unless they possess information at the time of the seizure that establishes "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 v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000) (citing Mincey v. Arizona,

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437 U.S. 385, 393...

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