Doe v. Moffatt ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 96-2351


                                  JOHN DOE, ET AL.,


                               Plaintiffs, Appellants,


                                         v.


                                BRUCE MOFFAT, ET AL.,


                               Defendants, Appellees.


                                ____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF RHODE ISLAND


                      [Hon. Mary M. Lisi, U.S. District Judge]


                                ____________________


                                       Before


                               Selya, Boudin and Stahl,

                                   Circuit Judges.


                                ____________________


            Gerard McG.DeCelles and Stephen A. DeLeo on brief for appellants.

            Jeffrey B.  Pine, Attorney General,  and James R.  Lee, Assistant

       Attorney General, on brief for appellees.



                                ____________________


                                    JUNE 11, 1997

                                ____________________







                      Per  Curiam.   We  have  carefully  considered  the


            relevant case  law, the record and  the parties' briefs.   We


            affirm the district  court's decision  substantially for  the


            reasons
stated
in
its
Memorandum and Order of October 22, 1996.


            We add only the following comments.


                 I. Damages Claims


                 In the context of a  state actor's entry into a home  to


            investigate
a report of child abuse or neglect and to remove a


            child
from
his
parents'
custody, the standards under the Fourth


            Amendment
and
the
Due
Process Clause are essentially the same.1


            The search fits within the exigent circumstances exception to


            the
Fourth
Amendment's
warrant requirement if "the state actors


            making the search . . .  have reason to believe that life  or


            limb is  in  immediate jeopardy  and  that the  intrusion  is


            reasonably
necessary
to
alleviate the threat."  Good v. Dauphin


            County Social Services, 891 F.2d 1087, 1094 (3d Cir.  1989).


                 Similarly, the Due  Process Clause tolerates  officials'


            taking  custody  without  a prior  hearing  "if  a  child  is


            immediately
threatened with harm or is bereft of adequate care





               1 We assume, without deciding, that the Fourth Amendment's

            warrant and probable cause requirements apply in this

            context. But cf. McCabe v. Life-Line Ambulance Service, 77

            F.3d 540 (1st Cir.) (reversing decision denying defendants'

            motion for summary judgment on ground that city's policy of

            permitting police officers to execute civil commitment orders

            by means of forcible entries into private residences fell

            within the "special need" exception to Fourth Amendment

            warrant requirement), cert. denied, __ U.S. __, 117 S. Ct.

            275 (1996).


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            or
supervision. . . . [I]t is sufficient if the officials have


            been presented  with evidence  of serious  ongoing abuse  and


            therefore have reason to fear imminent recurrence."  Robinson


            v. Via, 821 F.2d 913, 922 (2d Cir. 1987).  See also Weller v.


            Dept.
of
Social Services for Baltimore, 901 F.2d 387, 393 (4th


            Cir. 1990) ("Due process does not mandate a prior hearing  in


            cases where  emergency  action may  be  needed to  protect  a


            child."); Lossman v.  Pekerske, 707 F.2d  288, 291 (7th  Cir.


            1983)  ("When  a  child's  safety  is  threatened,  that   is


            justification
enough
for
action first and hearing afterward.").


                 "In order to survive the 'swing of the summary  judgment


            axe,' the nonmoving  party must produce  evidence on which  a


            reasonable
finder of fact, under the appropriate proof burden,


            could
base
a
verdict for it; if that party cannot produce such


            evidence,
the
motion
must be granted."  Ayala-Gerena v. Bristol


            Myers-Squibb
Co., 95 F.3d 86, 94 (1st Cir. 1996) (quoting Mack


            v.
Great
Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 181


            (1st Cir. 1989)).   Given appellants' failure to provide  any


            factual support for their claims, the district court properly
















                                         -3-







            took defendants' statement of uncontested facts as admitted.2


            See id. at 95.


                 Even
if
on
the undisputed facts, viewed in the light most


            favorable
to
appellants, a reasonable jury could conclude that


            the
foregoing requirements of the Fourth Amendment and the Due


            Process
Clause were not met in this case, the defendants would


            be entitled to qualified immunity.  No reasonable jury  could


            conclude on these facts that defendants lacked an objectively


            reasonable basis  for  their decision  to remove  the  infant


            plaintiff.
S
ee Hollingsworth v. Hill, 110 F.3d 733, 741 (10th


            Cir. 1997);  Van  Emrik v.  Chemung  County Dept.  of  Social


            Services, 911 F.2d 863, 866 (2d Cir. 1990).  With respect  to


            defendant  Rhode Island  Department  of Children,  Youth  and


            Families, "[i]t is settled beyond peradventure . . . that . .


            .
a
state
agency
.
.
.
may not be sued for damages in a section


            1983 action."  Johnson  v. Rodriguez, 943 F.2d 104, 108  (1st


            Cir. 1991).


                 II. Stay of Discovery


                 Appellants
argue that their ability to oppose the summary


            judgment motion was hampered by the order staying  discovery.





               2  Appellants argue that they provided factual support in

            the form of references to a transcript of a Rhode Island

            Family Court proceeding.  As appellants concede, however,

            that transcript was not submitted to the district court (nor

            has it been submitted to this court) and, therefore, the

            references thereto are mere "unsupported factual allegations"

            which were properly disregarded by the district court.

            Ayala-Gerena, 95 F.3d at 95.


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            "It is well settled that the trial judge has broad discretion


            in ruling on pre-trial management matters, and we review  the


            district  court's  denial  of  discovery  for  abuse  of  its


            considerable  discretion."   Ayala-Gerena,  95  F.3d  at  91.


            Appellants' opposition to  summary judgment was  "deafeningly


            silent
as
to
their inability to oppose summary judgment due to


            incomplete discovery."  Id. at 92.  Appellants still have not


            identified how their opposition was hampered by the  district


            court's order staying discovery.  Under these  circumstances,


            appellants' argument that  summary judgment was premature  in


            this case is without merit.  See R.W. Intern. Corp. v.  Welch


            Food, Inc., 13 F.3d 478, 488 (1st Cir. 1994).


                 The district court  judgment is affirmed.   See Loc.  R.


            27.1.


























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