Fredenburg v. County of Santa Clara

MEMORANDUM *

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. § 1983 . This court has jurisdiction pursuant to 28 U.S.C. § 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, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (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.2001). 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…

concurring in part and dissenting in part:

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, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (internal quotation marks and citation omitted). Moreover, the test in Wallis v. Spencer, 202 F.3d 1126 (9th Cir.2000), “is flexible and must take into account the individual circumstances.” Burke 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 took emergency custody…

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NOT FOR PUBLICATION DEC 22 2010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…