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NOT FOR PUBLICATION DEC 22 2010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

2 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

3 (quoting Good v. Dauphin Cnty. Soc. Servs. for Children and Youth, 891 F.2d

1087, 1093 (3d Cir. 1989)).

AFFIRMED.

4

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.

2