Schwenk et al v. County of Alameda et al

Filing 48

USCA ORDER AND MEMORANDUM: Affirming in part; Reversing in part, and Remanding for further proceedings. Each party shall bear its own costs. (jlm, COURT STAFF) (Filed on 2/2/2010)

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Case: 07-16525 02/02/2010 Page: 1 of 4 DktEntry: 7215990 F IL E D FEB 02 2010 N O T FOR PUBLICATION U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U . S . C O U R T OF APPE A L S T A N Y A SCHWENK; et al., Plaintiffs - Appellants, v. N o . 07-16525 D .C . No. CV-07-00849-SBA M EM O RA ND UM * C O U N T Y OF ALAMEDA; et al., Defendants - Appellees. A p p e al from the United States District Court fo r the Northern District of California S au n d ra B. Armstrong, District Judge, Presiding A rg u e d and Submitted December 9, 2009 S an Francisco, California B efo re: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, ** District Judge. T a n y a Schwenk and her son, Christopher Schwenk, appeal the district co u rt's order granting the appellees' motion to dismiss their § 1983 complaint. We This disposition is not appropriate for publication and is not precedent ex cep t as provided by 9th Cir. R. 36-3. T h e Honorable Barbara M.G. Lynn, United States District Judge for th e Northern District of Texas, sitting by designation. ** * Case: 07-16525 02/02/2010 Page: 2 of 4 DktEntry: 7215990 h av e jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and rem an d for further proceedings.1 T h e district court erred by dismissing the case in light of Tanya Schwenk's w ell-p lead ed allegation that she was Christopher's legal custodian. When ruling o n the motion to dismiss, the district court was required to take as true Schwenk's alleg atio n of legal custody, unless contradicted by a matter properly before the co u rt. S ee Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). T h e district court properly took judicial notice of an interim order of the Alameda C o u n ty Family Court, dated May 11, 2004, which transferred physical custody of C h risto p h er from Tanya Schwenk to his father and which gave Tanya Schwenk "v is ita tio n with [Christopher] every Sunday at 7:30 a.m. until Sunday at 9:00 p.m." S e e Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Fed. R. Evid. 2 0 1 . However, because the order was silent on the matter of legal custody, the d istrict court erred by concluding that Tanya Schwenk did not have a legal basis to ch allen g e the seizure of Christopher. B u rke v. County of Alameda, 586 F.3d 725, 7 3 3 (9th Cir. 2009) (noting that a parent without physical custody may have legal cu sto d y, and recognizing such parent's liberty interest in the care, custody, and Because the parties are familiar with the facts, we repeat them here only as n e c es sa ry to the disposition of this case. 2 1 Case: 07-16525 02/02/2010 Page: 3 of 4 DktEntry: 7215990 m an ag em en t of their children); s ee also Brittain v. Hansen, 451 F.3d 982, 992 (9th C ir. 2006) (recognizing that parents without legal custody but with visitation rights m ain tain a liberty interest in the care, custody, and management of their children, alb eit a reduced one); Cal. Fam. Code § 3003. W e affirm the dismissal as to Lacativo on the basis of qualified immunity. A t the time of the alleged conduct, we had not yet decided B u r k e, which expressly h eld that "parents with legal custody, regardless of whether they also possess p h ysical custody of their children" have a liberty interest in the care, custody, and m an ag em en t of their children. 586 F.3d at 731, 733-34. Accordingly, the right w as not yet clearly established, id . a t 734, and Lacativo is entitled to qualified im m u n ity. P ea rso n v. Callahan, 129 S.Ct. 808, 815 (2009). B e ca u s e the district court erred in its assessment of appellants' alleged rig h ts, the court, on remand, should reevaluate their claims against the County p u rsu an t to M o n ell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).2 On remand, th e district court should also address the claims purportedly asserted by C h risto p h er Schwenk, as to which its earlier order was silent. We agree with the district court that appellees' arguments urging dismissal u n d e r the R o o ker-F eld m a n d o ctrin e are without merit. See Exxon Mobil Corp. v. S a u d i Basic Indus. Corp., 544 U.S. 280, 284 (2005). 3 2 Case: 07-16525 02/02/2010 Page: 4 of 4 DktEntry: 7215990 A F F IR M E D in part; R E V E R S E D in part, and R E M A N D E D f o r further p ro ceed in g s. Each party shall bear its own costs. 4

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