IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41035

EDWARD WERNECKE, Individually; MICHELLE WERNECKE, Individually;

KATIE WERNECKE, Previously a minor, now of majority age in her own

individual capacity; JONATHAN WERNECKE, Previously a minor, now of

majority age in his own individual capacity,

Plaintiffs - Appellants

v.

LINDA KIM GARCIA, In her individual capacity,

Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:07-CV-238

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This action in 2007 under 42 U.S.C. § 1983 by Edward and Michelle

Wernecke, individually and on behalf of their then four minor children, claimed

violations of the Fourth and Fourteenth Amendments. In 2009, defendants were

awarded summary judgment on most of the claims. Summary judgment was

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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denied Linda Kim Garcia and another, in their individual capacities, for which

they pursued an interlocutory appeal. Wernecke v. Garcia, 591 F.3d 386 (5th

Cir. 2009). On remand, the parties settled in part, and judgment dismissing all

claims was entered in 2010.

This appeal from that final judgment concerns only Garcia and the district

court’s ruling in 2009 that an earlier Texas state-court proceeding precluded

claims arising from the State’s taking custody of their daughter Katie Wernecke. 

Conceding that ruling was erroneous, Garcia instead claims qualified immunity. 

Along that line, the Werneckes’ post-argument motion to reverse and remand for

reconsideration is DENIED. Based on qualified immunity, the judgment is

AFFIRMED.

I.

Katie Wernecke, then minor daughter of Edward and Michelle Wernecke,

was diagnosed with Hodgkin’s disease in January 2005. She was treated with

chemotherapy in spring 2005 at Driscoll Children’s Hospital in Corpus Christi,

Texas. Following chemotherapy, her physician recommended radiation

treatment. Her parents refused, at least initially, to consent.

On 26 May 2005, the Texas Department of Family and Protective Services

(TDFPS) received a report of medical neglect regarding Katie Wernecke. The

report stated: the Werneckes were told on 29 April of her need for radiation;

despite a second opinion recommending radiation, her parents intended to treat

her at home with herbal pills; and, she had symptoms suggesting her tumor was

growing.

The next day, Garcia of TDFPS spoke to Katie Wernecke’s physician, who

said she needed to start radiation within ten days to prevent recurrence of the

cancer. Garcia then spoke to Mrs. Wernecke and explained TDFPS would

intervene if the Werneckes had not, by 31 May, scheduled an appointment for

Katie Wernecke to receive radiation on or before 6 June.

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On 1 June, Garcia was informed by a social worker at Driscoll of the

following: the Werneckes had requested that day that Katie Wernecke be

referred to an oncologist for radiation; but, the referral could not be made

because the requested physician was not certified in pediatric radiology. TDFPS

then filed in state court in Nueces County a petition seeking emergency

temporary custody of Katie Wernecke. In her supporting affidavit, Garcia

included the above facts, except that the Werneckes had requested a referral and

that the referral could not be made. A Nueces County judge ordered the same

day that TDFPS be given temporary custody of Katie Wernecke.

Around 5:30 that evening, Garcia, accompanied by another TDFPS

employee and two deputy constables, went to the Wernecke home to take custody

of Katie Wernecke. Upon their arrival, Mr. Wernecke told them she was not at

home and refused to say where she was. After an extended discussion with Mr.

Wernecke, the deputies and TDFPS employees entered the home. While

searching, Garcia observed the “deplorable” condition of the home and, after

conferring with her supervisor, Trainer, removed the two minor boys who were

present. On 4 June, Katie Wernecke was found and placed in TDFPS custody.

The Werneckes filed this § 1983 action against TDFPS, Nueces County,

the two deputies, and six TDFPS employees, including Garcia and Trainer,

claiming violations of the Fourth and Fourteenth Amendments. Defendants

were awarded summary judgment on claims arising from the seizure of Katie

Wernecke. The district court ruled those claims precluded, because the

Werneckes had “a full and fair opportunity to litigate the issue” during a statecourt hearing on 15-16 June 2005, at the conclusion of which Katie Wernecke

had been ordered to remain in TDFPS custody for treatment.

The district court denied summary judgment (denial of qualified

immunity), however, to Garcia and Trainer on the claims of unreasonable search

of the home and unjustified seizure of the boys. From this qualified-immunity

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denial, Garcia and Trainer pursued an interlocutory appeal. Our court, inter

alia, upheld the denial of summary judgment for Garcia for the claim concerning

seizure of the boys. Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009). On

remand, the parties settled that claim, and judgment was entered dismissing all

claims.

II.

The Werneckes challenge only the summary judgment awarded Garcia, 

based on their claims regarding the seizure of Katie Wernecke being precluded. 

They contend Garcia committed a constitutional violation by omitting before the

Nueces County judge that they had requested Katie Wernecke be referred for

radiation.

A summary judgment is reviewed de novo. E.g., Berquist v. Wash. Mut.

Bank, 500 F.3d 344, 348 (5th Cir. 2007). Summary judgment is proper if “there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law”. FED. R. CIV. P. 56(a).

The Werneckes maintain Garcia violated: the Fourth Amendment

protection against unreasonable seizure (as applied against the States by the

Fourteenth Amendment); and, the Fourteenth Amendment (substantive due

process) right to family integrity. Their due-process claim is waived for

inadequate briefing. FED. R. APP. P. 28(a)(9)(A).

A.

Garcia concedes the district court erred in granting summary judgment

sua sponte on the grounds of claim and issue preclusion. Compare Baker v.

Metro. Life Ins. Co., 364 F.3d 624, 632 (5th Cir. 2004) (“a district court may not

grant summary judgment sua sponte on grounds not requested by the moving

party” (citation and internal quotation marks omitted)), with FED. R. CIV. P.

56(f)(2) (as amended 2010) (“[a]fter giving notice and a reasonable time to

respond, the court may . . . grant the [summary-judgment] motion on grounds

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not raised by a party”). The district court’s having failed to give the Werneckes

notice, its preclusion ruling was improper under both Baker and Rule 56(f)(2).

B.

Garcia contends our court, nevertheless, should affirm the summary

judgment on the basis of qualified immunity, as asserted in her summaryjudgment motion. E.g., Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812

(5th Cir. 2010) (summary judgment may be affirmed “on any grounds supported

by the record and presented to the [district] court”).

“Although nominally an affirmative defense, the plaintiff has the burden

to negate the assertion of qualified immunity once properly raised.” Collier v.

Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). Qualified immunity shields from

civil liability government officials performing discretionary functions “insofar as

their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known”. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). Therefore, to overcome qualified immunity for

summary-judgment purposes, a plaintiff must: (1) present evidence creating a

genuine dispute on whether the official violated a statutory or constitutional

right; and, (2) demonstrate that right was clearly established. Saucier v. Katz,

533 U.S. 194, 201 (2001). See also Pearson v. Callahan, 555 U.S. 223, 236 (2009)

(courts may “exercise their sound discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first”).

1.

The Fourth Amendment applies to social workers’ civil investigations. 

E.g., Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th

Cir. 2002). An official violates that Amendment when, inter alia, she “knowingly

and intentionally, or with reckless disregard for the truth” makes a false

statement or omission that results in the issuance of a warrant without probable

cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Hale v. Fish, 899 F.2d

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390, 400 (5th Cir. 1990) (applying Franks to omissions); Gates v. Tex. Dep’t of

Protective & Regulatory Servs., 537 F.3d 404, 429 n.16 (5th Cir. 2008) (court

order under provision at issue is equivalent to warrant for Fourth Amendment

purposes).

“To determine whether facts omitted from a warrant affidavit are material

to the determination of probable cause, courts ordinarily insert the omitted facts

into the affidavit and ask whether the reconstructed affidavit would still support

a finding of probable cause.” Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir.

2006). Insertion of the omitted facts–the Werneckes requested a referral, but

the referral could not be made because the physician was not certified to treat

Katie Wernecke–does not reconstruct the affidavit so as to preclude finding:

(1) there is an immediate danger to the physical

health or safety of the child . . . and that continuation in

the home would be contrary to the child’s welfare;

(2) there is no time, consistent with the physical

health or safety of the child, for a full [adversarial

hearing]; and

(3) reasonable efforts, consistent with the

circumstances and providing for the safety of the child,

were made to prevent or eliminate the need for the

removal of the child.

TEX. FAM. CODE § 262.102.

Therefore, the Werneckes have not shown, for summary-judgment

purposes, a genuine dispute on whether Garcia’s omissions resulted in the

issuance of an order without adequate grounds. Accordingly, they have not

made a sufficient showing of a constitutional violation prerequisite to

overcoming summary judgment based on qualified immunity. See Saucier, 533

U.S. at 201.

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2.

In the alternative, for summary-judgment purposes, the Werneckes do not

show a genuine dispute on whether Garcia’s conduct was other than “objectively

reasonable under clearly established law”. E.g., Hampton v. Oktibbeha Cnty.

Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).

The Werneckes contend: it was clearly established at the time of Garcia’s

conduct that social workers were subject to the Fourth Amendment; and, a

reasonable official would have known it is illegal to omit “critical” information

from an affidavit. These contentions do not satisfy the test. “This inquiry, it is

vital to note, must be undertaken in light of the specific context of the case, not

as a broad general proposition”. Saucier, 533 U.S. at 201.

Garcia’s conduct cannot give rise to civil liability unless a reasonable

official in her circumstances would have known her conduct violated the

Constitution. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Defendant’s

circumstances include facts known to defendant. Thompson v. Upshur Cnty.,

245 F.3d 447, 457 (5th Cir. 2001). It is not disputed Garcia knew, at the time of

her affidavit, both that the Werneckes had requested a referral and that the

referral could not be made because the physician was not certified in pediatric

radiology. For summary-judgment purposes, the Werneckes fail to show a

genuine dispute on whether a reasonable official would have necessarily believed

omitting the exculpatory fact that a referral was requested, along with the

inculpatory fact that the requested physician was not certified, would violate the

Constitution.

III.

For the foregoing reasons,theWerneckes’ post-argument motion to reverse

and remand for reconsideration is DENIED; the judgment is AFFIRMED.

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