UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATILDA MABE,
Plaintiff-Appellant,
v.
No. 98-56561
SAN BERNARDINO COUNTY,
D.C. No.
DEPARTMENT OF PUBLIC SOCIAL
CV-96-00325-RT
SERVICES; KAREN PERRY; JEFF
LUTHER; BRENDA WALKER; KATHY OPINION
MCBRIDE; DAN SHOREE; CHUCK
MCATEE; STEPHANIE RUMPLER,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, District Judge, Presiding
Argued and Submitted
October 10, 2000--Pasadena, California
Filed January 24, 2001
Before: Robert Boochever, A. Wallace Tashima and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
_________________________________________________________________
COUNSEL
Peter R. Afrasiabi, 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.
_________________________________________________________________
OPINION
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, cer-
tain 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
1129
summary judgment in favor of all defendants on all claims.
Mabe argues that Appellees are liable for damages under 42
U.S.C. S 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 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"
_________________________________________________________________
1 We use the initials "MD" for Mabe's daughter to protect the privacy
of the victim.
1130
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 unre-
stricted 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 S 300 child depen-
dency 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.
1131
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 cus-
tody to Rumpler. MD's placement was monitored by Perry
and other social workers for four years until dependency pro-
ceedings were dismissed when MD turned 18.
Mabe's lawsuit seeks damages from Perry, certain supervi-
sors 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 defendants on all claims based in
part upon a finding that the defendants were entitled to immu-
nity. 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
1132
facts constitute a violation of established law is a legal deter-
mination 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 constitu-
tional rights of another person. See 42 U.S.C. S 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 func-
tion that the person was performing when taking the actions
that provoked the lawsuit. See id.
Mabe's claim against the individual appellees involves offi-
cial 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
1133
two governmental functions performed, we address each sepa-
rately.
a. The Removal of MD.
i. Liability of Perry for the Removal of MD.
[1] 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. Quali-
fied 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).
[2] Government officials are required to obtain prior judi-
cial 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, 437 U.S. 385, 393
(1978)).
[3] The first prong of the qualified immunity test focuses
on whether the law governing Perry's removal of MD from
the Mabe home was clearly established. The constitutional
right of parents and children to live together without govern-
mental interference is well established. See Santosky v.
Kramer, 455 U.S. 745, 753 (1982). The Fourteenth Amend-
ment guarantees that parents will not be separated from their
children without due process of law except in emergencies.
See Stanley v. Illinois, 405 U.S. 645, 651 (1972); Ram, 118
F.3d at 1310 (9th Cir. 1997) (holding that in 1993"it was
1134
clear that a parent had a constitutionally protected right to the
care and custody of his children and that he could not be sum-
marily deprived of that custody without notice and a hearing
except when the children were in imminent danger").
The second prong of the qualified immunity test focuses on
whether a reasonable official could have believed her conduct
was lawful. See id. Whether Perry could have believed that
removing MD under the facts of this case was lawful depends
on whether a reasonable social worker could have believed
that exigent circumstances existed on August 21, 1995, suffi-
cient to override the warrant requirement. See White v. Pierce
County, 797 F.2d 812, 815 (9th Cir. 1986) (citing Payton v.
New York, 445 U.S. 573, 588-90 (1980)). Two relevant cases
involving the availability of qualified immunity based on
claims of exigency for officials conducting child abuse inves-
tigations bracket the facts in this case.
In White, exigent circumstances excused the need for a
warrant. We concluded that the "deputies had probable cause
to believe the child had been abused and that the child would
be injured or could not be taken into custody if it were first
necessary to obtain a court order." Id. (applying a Washington
state child abuse statute directing immediate seizure if officers
had probable cause to suspect imminent danger). Accord-
ingly, we reversed the district court's denial of defendant's
motion for summary judgment upon a finding of qualified
immunity. Id.
An opposite result was reached in Calabretta v. Floyd, 189
F.3d 808 (9th Cir. 1999). In Calabretta, the summary judg-
ment motion filed by the social worker and police officer, on
the grounds of qualified immunity, was denied by the district
court. We affirmed because a reasonable government official
would have known that exigent circumstances justifying war-
rantless entry into the parents' home did not exist; that con-
sent or a warrant was required for entry; and that qualified
1135
immunity was not available with respect to the coerced strip
search of a three-year-old child. See id.
The social worker in Calabretta, investigating allegations
of child abuse, went to the residence and spoke to the mother.
Id. at 810-11. Ten days later, the social worker returned to the
residence with a police officer and made a coerced, warrant-
less entry into the house. Id. at 811. The social worker also
coerced the mother to pull down the pants of one of the chil-
dren so the social worker could check for signs of abuse. Id.
at 811-12. Under these facts, the Calabretta court, citing
White, held that the government officials were not entitled to
qualified immunity because there was no showing of immi-
nent danger to the children. Id. at 813, nn. 9 & 12.
The facts in this case appear to fall somewhere in between
Calabretta and White. The record shows that the mother,
Mabe, was hostile to the social worker, Perry, and to her
daughter, MD, during Perry's investigation, which is arguably
similar to the father's hostile behavior in White, giving rise to
a reasonable fear that the child was in imminent physical dan-
ger. However, in White, the officers had a reasonable fear that
because the father, the potential abuser, was hostile about the
investigation, the child would be harmed in any time it would
take to obtain a warrant. See White, 797 F.2d at 815. In con-
trast, Perry's concerns that Mabe was hostile to the veracity
of MD's allegations against her husband are not directly
related to how he himself might react when faced with MD's
allegations of sexual abuse.
Both Calabretta and White are distinguishable from this
case because the allegations of abuse being investigated in
those cases were not provided by the victim or people with
personal knowledge of any abuse. In this case, Perry had the
victim's report of abuse. This is significantly more compel-
ling evidence to support the social worker's reasonable belief
that abuse had occurred and that the child was still in danger
1136
of future harm than in Calabretta or in White, where a neigh-
bor's report formed the basis of suspicion of child abuse.
[4] Nonetheless, imminent danger of future harm is
required to show exigency. Several facts, viewed in the light
most favorable to Mabe, undermine a reasonable belief of exi-
gency here. First, and most importantly, Perry opted to leave
MD in the residence after interviewing MD and Mabe about
the alleged molestation. Perry told MD at the end of the inter-
view on August 17, 1995, that she would see if MD needed
to be removed from the home. This demonstrates Perry's
intent to delay the removal, which raises a serious question
about Perry's reasonable belief that MD was in imminent dan-
ger on August 21, 1995, similar to the delay in Calabretta.
[5] Second, Perry concedes that the improper touching had
not been recurring since MD returned home over a month
after the initial police report was made. Unlike White, this
case does not present the concern that the child would be con-
cealed or further abused during the time it would take to get
a warrant because such retribution had not happened to MD
since her return home after Mabe and the stepfather were both
told that a police report had been filed.
[6] Third, the type of abuse here is qualitatively different
than that under investigation in both White and Calabretta.
Here, the allegations were not of physical beatings that could
happen at any time of the day. Although the conduct by the
stepfather was clearly inappropriate, it did not involve vio-
lence or penetration and the only time it had taken place was
at night when MD was in her bedroom. Assuming that Perry
could obtain a warrant2 the same day as the case review com-
_________________________________________________________________
2 The record supports a finding of probable cause that MD should have
been removed to compel the issuance of a warrant for removal. However,
a showing of probable cause does not satisfy the conclusion that MD was
in imminent danger of serious physical injury sufficient to justify a war-
rantless removal. LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th
1137
mittee recommended that MD be removed, it is difficult to
understand how the further delay of a few hours necessary to
obtain the warrant would have put MD in imminent danger of
serious physical injury.
Whether reasonable cause to believe exigent circumstances
existed in a given situation, "and the related questions, are all
questions of fact to be determined by a jury." Wallis v. Spen-
cer, 202 F.3d 1126, 1138 (9th Cir. 2000) (citing McKenzie v.
Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)). Accordingly,
"[s]ummary judgment in favor of the defendants is improper
unless, viewing the evidence in the light most favorable to the
plaintiffs, it is clear that no reasonable jury could conclude
that the plaintiffs' constitutional rights were violated." Id.
Under this standard, we found summary judgment to be
improper in Wallis in part because "a material question of fact
exists regarding whether . . . there was reasonable cause to
believe, on the basis of the information in the possession of
the . . . police officer, that the . . . children faced an immediate
threat of serious physical injury or death." Id.
[7] Similarly, there exists a question of material fact here
whether a reasonable social worker could have believed that
her conduct was lawful because it is unclear on summary
judgment whether MD faced an immediate threat of serious
physical injury. The district court's grant of summary judg-
ment in favor of Perry was erroneous because, viewing the
exigency evidence in the light most favorable to Mabe, a rea-
sonable jury could conclude that Mabe's constitutional rights
were violated by Perry's warrantless removal of MD. See id.
_________________________________________________________________
Cir. 2000) ("[I]t is well settled constitutional law that, absent exigent cir-
cumstances, probable cause alone cannot justify an officer's warrantless
entry into a person's home."). The failure to remove MD on August 17,
1995, is the strongest evidence in the record that Perry did not believe the
circumstances were exigent.
1138
ii. Liability of the Supervisor for the Removal
of MD.
[8] Mabe also sued Perry's supervisor, Jeff Luther, for the
warrantless removal of MD from her home. However, no evi-
dence was presented to show a causal connection between any
personal conduct by Luther and the alleged constitutional vio-
lation. The Supreme Court has concluded that in enacting sec-
tion 1983 Congress did not intend to "impose liability
vicariously on [employers or supervisors] solely on the basis
of the existence of an employer-employee relationship with a
tortfeasor." Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir.
1993) (quoting Monell v. Department of Soc. Servs. of New
York, 436 U.S. 658, 692 (1978)). Therefore, the conduct of
Perry cannot be imputed to Luther. We affirm the district
court's grant of summary judgment on this claim.
b. The Dependency Proceedings.
[9] Separate from Mabe's complaint about the warrantless
removal of MD from her home, Mabe argues generally that
the County's social workers did not conduct the investigation
properly, were allowed to submit false evidence during the
juvenile court proceedings, and interfered with her custody
rights. The district court dismissed some of these counts for
failure to state a claim and properly granted summary judg-
ment on the remaining counts because social workers are enti-
tled to absolute immunity for the initiation and pursuit of
dependency proceedings, including their testimony offered in
such proceedings. See Meyers v. Contra Costa County Dep't
of Soc. Servs., 812 F.2d 1154, 1158-59 (9th Cir. 1987). Sum-
mary judgment was proper on Mabe's false evidence allega-
tions because she failed to offer any evidence of false or
perjured testimony.
Moreover, social workers "enjoy absolute, quasi-judicial
immunity when making post-adjudication custody decisions
pursuant to a valid court order." Babcock v. Tyler, 884 F.2d
1139
497, 503 (9th Cir. 1989) (holding social workers entitled to
absolute immunity from a claim that they erred in placing
minor dependents in foster home where the minors were later
sexually abused).
Even if the action against Perry entitles Mabe to damages
under a theory of warrantless removal without exigent cir-
cumstances, summary judgment is affirmed for the subse-
quent social workers and court-appointed caretakers 3 who
participated in MD's dependency proceedings because their
liability cannot be imputed solely by virtue of their relation-
ship to Perry. See Palmer, 9 F.3d at 1438.
We affirm the district court's dismissal and grant of sum-
mary judgment on the portion of Mabe's case that involves
the dependency proceedings claims and the post-removal cus-
tody decisions of the juvenile court.
c. Scope of Removal and Placement in Light of
Exigency.
Mabe argues that the extent of the intrusion, resulting in the
removal of MD from the home and placement in foster care
for an indefinite period, was improper under law. We have
held that exigency is a "very limited exception " to the warrant
rule and simply "because some intrusion on a child's pro-
tected privacy and security interests may be reasonable does
not mean that any intrusion is." Wallis, 202 F.3d at 1140.
In Wallis, the threat of future physical abuse and past sex-
ual abuse on the Wallis children were all attributed to the
_________________________________________________________________
3 The district court's grant of summary judgment for the section 1983
claims against MD's subsequent caretakers (Walker and Rumpler) is
affirmed because there was no evidence presented that either of these
Defendants-Appellees was acting under color of state law as agents or
employees of the County. See Johnson v. Knowles , 113 F.3d 1114, 1118-
20 (9th Cir. 1996); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
1140
father. We noted that there was "no evidence that the children
could not have been taken with their mother to a shelter, or
placed under some other form of protective custody with her
until . . . some later date." Id. at 1140. We concluded that
there was a "genuine issue of material fact as to whether the
emergency continued to exist for more than the brief day or
two following the time of the children's seizure " and whether
the children could have been taken out of the home with their
mother. Id.
[10] Here, MD's allegations of abuse were only attributed
to the stepfather, Mabe's husband, yet MD was removed from
the home. Furthermore, Mabe says that her husband told
Perry he would move out of the house if that was necessary
to have MD remain in the home. If the exigency that justified
MD's removal was the stepfather's access to her in the resi-
dence, then his departure or Mabe's and MD's detention
would have been a less drastic step to protect MD from imme-
diate harm.
Perry thought that Mabe was not protecting MD in light of
how she reacted to MD's report of the stepfather's alleged
misconduct. Compare Wallis, 202 F.3d at 1140. Mabe did not
believe MD's allegations that the abuse had occurred or that
there was a threat that such abuse would occur again in the
future. Perry says Mabe was verbally abusive of MD during
the removal, harassing MD within inches of her face. Perry's
impressions constitute supporting evidence, unlike Wallis,
that removal from the mother was reasonably necessary as
well to protect MD.
The day after MD's removal from the Mabe home, a Juve-
nile Dependency Petition was filed with the San Bernardino
County Juvenile Court. The following day the juvenile court
held a hearing attended by Mabe. The court found that a
prima facie case was established for MD's detention out of
home. The court also found that the "lack of pre-placement
preventive efforts was reasonable" and "continuation in the
1141
parental home is contrary to the welfare of the minor; no
means to protect without removal." The record demonstrates
that attempts were made to resolve the conflict between MD
and her mother and her stepfather through family reunifica-
tion procedures, but an impasse developed in the family when
MD refused to recant the allegations and Mabe and her hus-
band refused to admit that any abuse had occurred.
[11] The juvenile court's findings are not relevant to
whether a sufficient exigency existed at the time of the
removal to justify the warrantless action because such an
inquiry is to be based on the information that Perry had at the
time. However, those findings certainly buttress the conclu-
sion that MD's removal from the Mabe residence and perma-
nent placement outside the home were justified in light of the
situation. The juvenile court ordered the continued separation
of Mabe from MD. Mabe opted not to appeal the juvenile
court's jurisdiction and disposition orders that required MD's
four-year placement outside of Mabe's home. Summary judg-
ment on this claim is affirmed.
2. Liability of the County Under Section 1983.
Mabe argues that her claim against the County for the war-
rantless removal of MD should not have been dismissed. A
municipality can be sued for "constitutional deprivations vis-
ited pursuant to governmental custom." Monell , 436 U.S. at
690; Wallis, 202 F.3d at 1136. To establish liability, Mabe
must show that (1) she was deprived of a constitutional right;
(2) the County had a policy; (3) the policy amounted to a
deliberate indifference to her constitutional right; and (4) the
policy was the "moving force behind the constitutional viola-
tion." Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th
Cir. 1996).
[12] Under this standard, the district court's grant of sum-
mary judgment in favor of the County must be affirmed.
Mabe adduced no evidence that the County had a policy that
1142
both amounted to deliberate indifference to Mabe's constitu-
tional rights and was the moving force behind a violation of
those rights. Even assuming that the County had a policy of
delaying the removal decision in a child abuse investigation
so as to allow the social worker to present the matter to a case
review committee, there is no evidence that the County had
a further policy of thereafter conducting warrantless removals
in the absence of exigent circumstances, or any other policy
of a sort that could give rise to liability. Because Mabe pre-
sented no evidence of an unconstitutional custom or policy to
support her claim against the County, summary judgment in
favor of the County is affirmed.
3. Remaining Claims.
a. Wrongful Search and Seizure of Property.
There is no evidence that Mabe's Fourth Amendment rights
were violated by any of her property being seized from her
home by Defendants-Appellees. Mabe has no standing to
claim a violation of MD's Fourth Amendment rights. See
United States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991)
(holding that Fourth Amendment rights are personal and may
not be asserted vicariously). Accordingly, summary judgment
on this claim is affirmed.
b. State Claims.
As a condition precedent to suit against a public entity, the
California Tort Claims Act (CTCA) requires "the timely pre-
sentation of a written claim and the rejection of the claim in
whole or in part." Mangold v. California Pub. Util. Comm'n,
67 F.3d 1470 (9th Cir. 1995) (citing Snipes v. City of Bakers-
field, 145 Cal. App. 3d 861 (1983)). The magistrate judge
found that Mabe's state claims were precluded under the
CTCA because the relevant "factual allegations . . . were not
set forth in the claim filed with the County."
1143
However, Mabe's written claim, which was submitted on a
form provided by the County, appears to contain several rele-
vant allegations including: names, dates, details and causes of
action based upon state grounds, violation of statutes, and
intentional and negligent infliction of emotional distress.
These details satisfy the threshold notice requirement of claim
submission. See Cal. Gov't Code SS 910, 910.4. While
Mabe's CTCA submission contains duplicative claims
addressed elsewhere in this opinion,4 at least two of these
claims sound in state law, which are also presented in Mabe's
opening brief on appeal -- statutory violations and emotional
distress.
Summary judgment was also granted on the state law
claims because the County is not specifically listed on the
claim form. However, the document itself is entitled "Claim
Against County of San Bernardino." Simply because Mabe
completed the form by responding to the question asking her
to identify the "public officers or employees causing injury"
does not entitle the County to summary judgment under the
guise of failure to satisfy the CTCA by omitting to name the
County. Accordingly, summary judgment for the County
based upon failure to comply with the CTCA is reversed and
remanded for consideration on the merits.
c. Access to School Records.
Mabe says she was denied access to her daughter's school
records by defendants' actions. Mabe adduced no evidence
implicating a County custom. Nor was any evidence pre-
sented to suggest that such a custom caused Mabe injury.
Summary judgment for the County on this issue is affirmed.
_________________________________________________________________
4 The duplicative claims include allegations of perjured statements in
documents, interference with family reunification, disregard for MD's
medical, dental and educational well-being, and wrongful placement of
MD in an unsuitable foster home. These claims are barred by absolute
immunity. See Babcock, 884 F.2d at 503; Meyers, 812 F.2d at 1159.
1144
Summary judgment on the same claim against the individuals
is affirmed because they are entitled to absolute immunity for
their actions conducted pursuant to the dependency proceed-
ings. See Babcock, 884 F.2d at 503; Meyers, 812 F.2d at
1159.
d. Discovery Requests.
We review discovery rulings for abuse of discretion. See
Ingham v. United States, 167 F.3d 1240, 1246 (9th Cir. 1999).
Mabe argues that the magistrate judge should have allowed
her access to MD's high school records and the County's
records. However, Mabe failed to comply with a local rule
requiring a joint stipulation with the County and failed to
comply with Fed. R. Civ. P. 45(a)(2) which requires that the
subpoena issue from the federal district in which the school
is located. The magistrate judge did not abuse her discretion
in denying the requests. See Exxon Shipping Co. v. Depart-
ment of Interior, 34 F.3d 774, 779-80 (9th Cir. 1994).
e. New Cause of Action.
In her opening brief on appeal, Mabe alleges a new cause
of action, not contained in her second amended complaint,
that Rumpler, who subsequent to the removal took care of
MD, mismanaged MD's social security benefits. When a
claim is not raised below, it is not considered on appeal. See
Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996)
(holding that newly minted causes of action are not consid-
ered on appeal because the complaint contained only passing
references to them). Since Mabe did not sue on behalf of MD
for MD's damages, this claim is without merit. Mabe's claim
that appellants damaged MD by causing her to suffer psycho-
logical damage similarly fails as a matter of law.
III. Conclusion.
A material issue of fact exists regarding whether there was
reasonable cause to believe, on the basis of the information in
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the possession of Karen Perry at the time of removal, that MD
faced an imminent danger of serious bodily injury sufficient
to justify a warrantless entry to Mabe's home and the seizure
of her daughter. We reverse and remand this issue for trial.
The dismissal of the supplemental state law claims against
the County is reversed and remanded since the district court
dismissed them for an impermissible reason (failure to com-
ply with the CTCA). We express no opinion as to the merits
of those reinstated claims.
We affirm the district court's grant of summary judgment
in favor of Karen Perry on all remaining claims against her.
We also affirm the grant of summary judgment in favor of the
County on all but the supplemental state law claims. We
affirm the dismissals of all claims against Jeff Luther, Brenda
Walker, Kathy McBride, Dan Shoree, Chuck McAtee, and
Stephanie Rumpler.5 The parties shall bear their own costs on
appeal.
AFFIRMED in part; REVERSED in part; and
REMANDED.
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5 Rumpler's motion for correction of proof of service and relief from
default is granted.
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