Oralee Anderson-Francois v. Brad Conners , 415 F. App'x 6 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ORALEE ANDERSON-FRANCOIS, No. 09-16238
Plaintiff - Appellee, D.C. No. 3:08-cv-00724-WHA
v.
COUNTY OF SONOMA; et al., MEMORANDUM *
Defendants,
and
BRAD CONNORS,
Defendant - Appellant.
ORALEE ANDERSON-FRANCOIS, No. 09-16240
Plaintiff - Appellee, D.C. No. 3:08-cv-00724-WHA
v.
COUNTY OF SONOMA and JERRY
NEWMAN,
Defendants - Appellants,
and
CITY OF SANTA ROSA; et al.,
Defendants.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted October 7, 2010
San Francisco, California
Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge.**
Oralee Anderson-Francois filed a § 1983 action against Sonoma County,
California, the City of Santa Clara, and various local officials. She alleged that, in
February 2006, the defendants—including Detective Brad Conners and a social
worker, Jerry Newman—violated her right to familial association by removing her
foster children from her home without a warrant. Conners and Newman challenge,
on interlocutory appeal, the district court’s summary judgment ruling that they
were not entitled to qualified immunity. Sonoma County (“the County”) also
appeals the district court’s denial of its summary judgment motion.
Issue Preclusion
Shortly after the children were removed, a California juvenile court
conducting a detention hearing ruled that there was a sufficient basis for further
detaining the children. Defendants contend that this state court ruling is
preclusive, barring Anderson-Francois from pressing her constitutional claims in
**
The Honorable Louis H. Pollak, Senior District Judge for the U.S.
District Court for Eastern Pennsylvania, Philadelphia, sitting by designation.
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federal court. However, even if the California statutes governing warrantless
removal, Cal. Welf. & Inst. Code §§ 305(a), 306(a)(2), are deemed equivalent to
the federal constitutional exigency requirement, the California statutes do not
require the judge conducting a detention hearing to make an exigency
determination, see id. §§ 315, 319,1 and in the case at bar the judge conducting the
detention hearing made no findings about the propriety of the warrantless removal.
See Conners ER 321–22. Accordingly, the issue that Anderson-Francois seeks to
litigate in federal court is not identical to any issue decided at the detention
hearing. Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990) (issue preclusion
only applies if, inter alia, “the issue sought to be precluded from relitigation [is]
identical to that decided in a former proceeding”); see also Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (“[A] federal court must give to a
state-court judgment the same preclusive effect as would be given that judgment
under the law of the State in which the judgment was rendered.”).
Qualified Immunity: Conners
1
Conners’ reliance on M.L. v. Superior Court is misplaced. In M.L.,
the juvenile court had made a finding, at the detention hearing, that sufficient
exigency existed to justify a warrantless removal under § 306, and the appellate
court reviewed that finding under federal constitutional standards. 172
Cal.App.4th 520, 526–27 (2009). But the juvenile court in this case did not
address, nor did either party raise, § 306 compliance. Moreover, as noted above,
the statutes governing detention hearings do not require an assessment of § 306.
3
We affirm the district court’s ruling that Conners is not entitled to qualified
immunity. At summary judgment, a qualified immunity analysis involves two
inquiries: (1) whether the facts plaintiff has shown make out a constitutional
violation; and, if so, (2) whether the right was clearly established at the time of the
alleged misconduct. See Pearson v. Callahan, 129 S. Ct. 808, 815–16 (2009).
Courts have discretion in deciding which of the two prongs to address first. Id. at
813.
“Parents and children have a well elaborated constitutional right to live
together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126,
1136 (9th Cir. 2000). “Officials . . . who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to experience
serious bodily harm in the time that would be required to obtain a warrant.”
Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). At the time
Conners removed Anderson-Francois’ children (February 2006), the right to be
free from an unjustified warrantless removal was clearly established. See id. at
1297.
In this case, a jury could find that Conners, who could have obtained a
warrant within a few hours, did not have reasonable cause to believe that the
children were in imminent danger. Viewing the facts in the light most favorable to
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Anderson-Francois, Conners knew that the investigation had been ongoing for over
six weeks, that the evidence of abuse was contradicted, and that the most recent
instance of confirmed abuse was several months prior to the removal date. Thus,
because a jury could conclude that Conners violated a clearly established
constitutional right, Conners is not entitled to qualified immunity.
Qualified Immunity: Newman 2
We also affirm the district court’s ruling that Newman is not entitled to
qualified immunity. Anderson-Francois’ evidence, if credited by a jury, could
support a finding that Newman, as the primary investigator, had to be aware that,
for the reasons described above, the facts elicited in the investigation did not
suggest that the children would be in imminent danger if not removed from their
homes within the few hours required to obtain a warrant. Moreover, the evidence
viewed in the light most favorable to Anderson-Francois could support a finding
that Newman not only provided input into the warrant question, but also made a
2
Anderson-Francois contends that Newman waived his right to appeal
because he did not argue in the district court that he was entitled to qualified
immunity. But Newman did raise qualified immunity below, if only in passing.
See Mot. for Summ. J. at 27, Anderson-Francois v. Cnty. of Sonoma, et. al, No. 08-
00724 (N.D. Cal. May 22, 2009), ECF No. 56. Moreover, the district court appears
to have ruled that neither Newman nor Conners was entitled to immunity. See
Anderson-Francois v. Cnty. of Sonoma, 2009 U.S. Dist. LEXIS 44176, at *20
(N.D. Cal. May 22, 2009).
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“joint” decision with Conners that warrantless removal was proper.
“[D]irect, personal participation is not necessary to establish liability for a
constitutional violation” and a plaintiff need only show that it was “reasonably
foreseeable that the actions of the . . . defendants would lead to the rights violations
alleged to have occurred . . . .” See Kwai Fun Wong v. United States, 373 F.3d
952, 966 (9th Cir. 2004). Here, a jury would have a basis for finding that it was
reasonably foreseeable that Newman’s input and participation in the removal
decision would lead to a violation of Anderson-Francois’ constitutional rights.
Accordingly, and in light of the fact that the right was clearly established, Newman
is not entitled to qualified immunity.
Monell Liability
Anderson-Francois’ claim against the County arises under Monell v. Dep’t of
Soc. Services of N.Y., 436 U.S. 658 (1978). Anderson-Francois alleges that the
County failed to give adequate training to its social workers with respect to the due
process principles governing removal of children from a parental home, and
thereby demonstrated deliberate indifference to Anderson-Francois’ constitutional
rights. The County appeals the district court’s ruling that there was a triable issue
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of fact on the Monell claim.3
“[T]he rule announced in Mitchell v. Forsyth [472 U.S. 511(1985)] that
individual defendants can appeal from the denial of a motion for a summary
judgment to obtain review of the merits of their qualified immunity defense does
not empower a federal court to consider the denial of a municipality’s motion for a
summary judgment in a § 1983 action.” Huskey v. City of San Jose, 204 F.3d 893,
902 (9th Cir. 2000); see also Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 38
(1995). However, “pendent party appellate jurisdiction may be permissible under
the ‘inextricably intertwined’ exception . . . .” Huskey, 204 F.3d at 904–05. “Only
where essential to the resolution of properly appealed collateral orders should
courts extend their . . . jurisdiction to rulings that would not otherwise qualify for
expedited consideration.” Swint, 514 U.S. at 51 (internal quotation marks
3
The County’s appeal does not address with specificity the adequacy of
training issue. A joint appellate brief was filed on behalf of Newman and the
County, and that brief simply argues that Anderson-Francois failed to present
sufficient facts to demonstrate that Newman violated her constitutional rights, and
thus that the Monell claim against the County should fail. See Newman Blue Br.
35–36. Because we find that Anderson-Francois’ evidence could support a finding
that Newman violated her consitutional rights, we must determine whether we have
jurisdiction to address the substance of the Monell claim—i.e., the adequacy of the
County’s training program. Moreover, because we ultimately find we do not have
jurisdiction to entertain the County’s appeal, we need not reach the question
whether the County, by virtue of its minimalist appellate briefing, has waived
consideration of the training issue on this appeal.
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omitted).
Because our resolution of Newman’s qualified immunity appeal does not
implicate the adequacy of the County’s training program, we cannot entertain the
County’s appeal. See Huskey, 204 F.3d at 905–06 (pendent jurisdiction over
Monell ruling not available where “ruling on the merits of the collateral qualified
immunity appeal did not resolve all of the remaining issues presented” by Monell
ruling). Accordingly, the County’s appeal is dismissed for want of jurisdiction.
AFFIRMED AND REMANDED.
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