David Barragan, individually; v. Robin Landry, individually

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Edward R. Korman, Senior United States District**
Judge of the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID BARRAGAN, individually; et al.,
Plaintiffs - Appellants,
v.
ROBIN LANDRY, individually, and as an
employee of the Division of Child
Protective Services of the State of Nevada
existing under the laws of the State of
Nevada; et al.,
Defendants - Appellees.
No. 08-16790
D.C. No. 3:06-cv-00310-LRH-
VPC
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and submitted November 6, 2009
San Francisco, California
Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, District**
Judge.
FILED
JAN 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Students and their parents appeal the dismissal on summary judgment of
their 42 U.S.C. § 1983 claims against Robin Landry (“Landry”), rural manager of
the Nevada Division of Child and Family Services (“DCFS”). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I
We review the grant of summary judgment de novo. Guru Nanuk Sikh Soc’y
of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir. 2006). In order to
survive summary judgment concerning a 42 U.S.C. § 1983 violation, a plaintiff
must present evidence showing that (1) the complainant has been deprived of a
right “secured by the Constitution and the laws” of the United States and (2) the
action complained of was committed by a person acting under color of state law.
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155–56 (1978).
The doctrine of qualified immunity provides immunity from a civil suit for
damages to a state actor who violates a constitutional right if the “contours of the
right” were not sufficiently clear at the time so that a reasonable official would
understand what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194,
202 (2001), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808
(2009). If the contours of the right were not clearly established, then we may
affirm on that basis without reaching the question of whether a constitutional

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violation has occurred. Pearson, 129 S.Ct. at 816 (internal quotation marks
omitted). Social workers may be entitled to qualified immunity for actions taken
during preliminary investigations. See Beltran v. Santa Clara County, 514 F.3d
906, 908–09 (9th Cir. 2008) (en banc) (per curiam), overruling Doe v. Lebbos, 348
F.3d 820 (9th Cir. 2003).
“The protection of qualified immunity applies regardless of whether the
government official's error is ‘a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.’” Id. at 815 (quoting Groh v. Ramirez,
540 U.S. 551, 567 (2004) (Kennedy, J., dissenting).
After a careful de novo review of the record, the briefs, and arguments of the
parties, we conclude that Landry is entitled to qualified immunity because the
contours of the rights at issue in this case were not clearly established at the time of
the actions.
II
The student plaintiffs allege that Landry violated their Fourth Amendment
right to be free from unreasonable searches and seizures.
In Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), we discussed a child’s
Fourth Amendment right to be free from seizure from his or her parents by a state
social worker or other child services employee. We held that:

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Officials may remove a child from the custody of its parent without prior
judicial authorization only if the information they possess at the time of
the seizure is such as provides 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.
Id. at 1138.
We have recently held that a government official must have a court order,
parental consent, or exigent circumstances like those discussed in Wallis, before
seizing a child at school in order to investigate allegations that child has been the
victim of abuse. Greene v. Camreta, No. 06-35333, 2009 WL 4674129, at *14
(9th Cir. Dec. 10, 2009). We also held that the scope of the child’s Fourth
Amendment right at school was not clearly established prior to our announcement
in that case. Id. at *14–*15. Therefore, our qualified immunity analysis was
governed by the “lesser . . . standard” from New Jersey v. T.L.O., 469 U.S. 325,
341 (1985), which announced a rule with regard to “‘special needs’ cases” of
which government officials would have been aware. Greene, 2009 WL 4674129,
at *15. This is so because, where a defendant’s action are clearly unconstitutional
under a lesser standard that the defendant regards to be applicable, then qualified
immunity is not available—her “actions could not then be said to be ‘reasonabl[e],
but mistaken[ ]’ with regard to whether [the plaintiffs’] constitutional rights were

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violated.” Id. (quoting Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir.
2001)) (first and second alterations in Greene).
As in Greene, T.L.O. announced the constitutional standard that “a
reasonable person would have known” to govern Landry’s conduct at the time of
the seizure of the children by DCFS. Pearson, 129 S.Ct. at 815 (citation omitted).
Under T.L.O., probable cause is not required. Rather, under T.L.O., a search or
seizure at a school is “reasonable” if it is “justified at its inception” and
“reasonably related in scope to the circumstances which justified the interference
in the first place.” 469 U.S. at 341. If Landry “‘could . . . have reasonably but
mistakenly believed that . . . her conduct did not violate’” that standard, she is
entitled to qualified immunity. Greene, 2009 WL 4674129, at *14 (quoting
Jackson, 268 F.3d at 641 (first omission in Greene).
Landry and DCFS removed the children from the school after compiling a
significant amount of evidence of sexual activity at the school involving both
students and at least one staff member, problems with the provision of medical
care, poor living conditions in the trailer in which the male students had previously
been housed, the possible criminal record of two employees, and dearth of around-
the-clock supervision. Based on this evidence, Landry could reasonably have

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believed that DCFS was justified in removing the students from the school for their
own safety.
Although it is not clear from the record precisely when DCFS contacted the
students’ parents, it is uncontroverted that some parents arrived before their
children had been housed in a new facility. And while DCFS placed some of the
students in youth prison facilities temporarily, it supervised the students itself,
isolating them from both the staff and youth at the prison. Therefore, Landry also
could reasonably have believed that the seizure was justified in its scope.
III
The parent plaintiffs have alleged violation of their Fourteenth Amendment
liberty interest in family integrity.
In Wallis, we explained that “the same legal standard applies in evaluating
Fourth and Fourteenth Amendment claims for the removal of children” from the
custody of their parents. 202 F.3d at 1137 n.8. In Burke v. County of Alameda,
586 F.3d 725 (9th Cir. 2009), we extended our holding in Wallis to parents with
legal custody of their children, regardless of whether they also possess physical
custody. Id. at 733. However, we explained that the Wallis test “is flexible and
must take into account the individual circumstances” of each case. Id. In
particular, we noted that “if the parent without physical custody does not reside

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nearby,” and seizure is otherwise justified, “it is probably reasonable for a police
officer to place a child in protective custody without attempting to place the child
with the geographically distant parent.” Id. We also explained that failure to
contact a parent without physical custody of a child before taking that child into
protective custody was not clearly unlawful at the time of the challenged conduct
and granted the individual defendant qualified immunity. Id. at 734.
To hold that the parents here can proceed with their claim, we would have to
determine that Wallis and Burke apply where a government official removed a
child from the physical custody of a potentially dangerous school with the purpose
of returning the student to his parents’ custody, and we would have to overlook the
physical distance between the school and the parents. More importantly, we would
have to determine that the scope of parents’ rights were more clearly established at
the time of the seizure than those of the students themselves, which we are
unwilling to do.
Therefore, for the reasons discussed in the previous section, Landry could
reasonably have believed that any intrusion upon the parents’ liberty interest was
justified at its inception and reasonable in its scope.

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Because Landry is entitled to qualified immunity as to both the Fourth and
Fourteenth Amendment claims, we affirm the district court’s grant of summary
judgment.
AFFIRMED.

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