Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1990)

No. 88-6692.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT, LEAVY, Circuit Judges, and KING^* , Senior United States District Judge.

MEMORANDUM^** 

Boyd Givens appeals pro se the district court's grant of summary judgment for the defendants, which resulted in the dismissal with prejudice of his 42 U.S.C. § 1983 action against a deputy sheriff, a police officer, and a social worker. Givens asserts that the defendants violated his constitutional rights when (1) they removed first his ward and then his child from his home and placed them in protective custody without a predeprivation hearing; (2) Anderson entered his home without a warrant to place Given's daughter in protective custody; and (3) Anderson arrested Givens without probable cause. The role of this court is a limited one. We cannot reexamine here the question of Given's guilt or innocence. We can only review the propriety of the district court's dismissal of the civil cause of action. In dismissing Given's case, the district court simply applied well-settled principles of law. It was compelled by binding precedent to dismiss his claims. Therefore, we affirm.

We will consider Given's claims in the order listed above. First, he claims that the defendants are liable for removing his ward and his child without a predeprivation hearing. The district court ruled that qualified immunity protects the defendants from Sec. 1983 liability. The district court was correct. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Meyers v. Contra Costa County Dep't of Soc. Servs., 812 F.2d 1154, 1157-58 (9th Cir.), cert. denied, 484 U.S. 829 (1987). The defendants cannot be held liable for damages unless, at the time of their actions, they should have been aware that they were violating a clearly established constitutional right. Harlow, 457 U.S. at 818. Because the case law in 1986 permitted officials to take allegedly abused children from a home without a predeprivation hearing in many circumstances, see Baker v. Racansky, 887 F.2d 183, 187-90 (9th Cir. 1989); Meyers v. Morris, 810 F.2d 1437, 1462-63 (8th Cir.), cert. denied, 484 U.S. 828 (1987), the right to a predeprivation hearing was not clearly established. Qualified immunity therefore protects the defendants from damages stemming from the lack of a predeprivation hearing.

Given's second claim, that Anderson improperly entered his home without a warrant, must also fail. Anderson's entry was justified by a then-existing statute, Cal.Welf. & Inst.Code Sec. 305 (Deering 1979) (superseded), which permitted a police officer to enter a home based on reasonable suspicion that a minor was in immediate danger of sexual abuse. A police officer's reliance on statutory authority is a valid defense to a Sec. 1983 claim for damages. Pierson v. Ray, 386 U.S. 547, 555 (1967).

The district court also properly ruled for the defendants on Given's final Sec. 1983 claim, that he was arrested without probable cause. Givens pleaded guilty to one count. As noted earlier, this court has no jurisdiction to review that guilty plea. For this reason, we must evaluate Given's civil claims in light of his prior conviction. A conviction precludes a Sec. 1983 plaintiff from asserting lack of probable cause. Compton v. Ide, 732 F.2d 1429, 1434 (9th Cir. 1984).

AFFIRMED.