[NOT FOR PUBLICATION]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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