*1 parties authority cited peal. a matter of the award as justify
does course, not find the Union’s do and we requests for frivolous. The to be
appeal denied. are therefore fees AFFIRMED. KRAINSKI, Plaintiff-Appellant, Megan ex BOARD OF rel. NEVADA State SYS OF NEVADA REGENTS EDUCATION, on TEM OF HIGHER Nevada, University Las behalf Mill; Clark; Vegas; Richard Rebecca Jiminez; Burns; Phillip Su Nannette Tyree Pini; Carrasco; Leslie Wal san Goff; Tramposch; lenfeldt; L. Brett Kenya Polee, Culver; Defendants- J. Appellees.
No. 08-17523. Appeals, United Court States Ninth Circuit. Dec. 2009. Argued Aug. Submitted Aug. Filed *3 Bach; NV; Las Vegas,
Jason for the appellant. Linstrom; NV; Vegas,
Richard Las C. O’Brien; NV; Vegas, Carrasco Las Susan Henderson, NV; Gabroy; Christian James appellees. for the FLETCHER, Before: BETTY B. N. RANDY R. THOMAS and SIDNEY SMITH, Judges. Circuit THOMAS; Opinion by Judge Partial Dissent Judge and Partial Concurrence B. FLETCHER.
OPINION
THOMAS, Judge: Circuit Megan appeals the district court’s dismissal of her Section 1983 action Nevada, University of Las Ve- against the (“UNLV”)1 em- and various UNLV gas (“UNLV Employees”)2 their ployees Officer; Jiminez, Regents Student Conduct Nannette 1. State of Nevada ex rel. Board Education, Officer; Carrasco, System Higher Nevada Student Susan M. Conduct University Counsel; Pini, Nevada. Tyree behalf Assis- Assistant General Coordinator; Life Leslie Wal- tant Residential "University Employees” include Rebec- 2. The lenfeldt, Life Coordina- Assistant Residential Life; Mills, ca Vice President for Student Goff, tor; police L. and UNLV officers Brett Clark, Director of Student Conduct Richard Tramposch, J. and Culver. Life; Burns, Phillip Senior Residential capacities. official file a personal complaint against formal Defen- and state law viola- dant POLEE. an altercation arising tions WALLENFELDT, 28. Defendants roommate, Polee, Kenya former that led to PINI, and POLEE then contacted subjection Krainski’s arrest and to univer- UNLV Police and made false statements sity discipline.3 The district court dis- officer an attempt [sic] prej- federal claims with missed Krainski’s have Plaintiff arrested. jurisdiction udice and declined to exercise GOFF, 29. Defendant Officers TRAM- *4 remaining law over the state claims. We POSCH, CULVER, knew, and or should jurisdiction pursuant to have 28 U.S.C. known, have allegations made § affirm. and we false, by Defendant POLEE were but alleged arrested Plaintiff for the crime I a Deadly Weapon. of Assault with to According complaint, Krainski’s arrest, Prior to making Defen- together Krainski and Polee roomed in GOFF, TRAMPOSCH, dant Officers housing residential at According UNLV. and CULVER did in- not conduct complaint, to the “a prominent Polee was vestigation by into the claims made De- UNLV, student-athlete listed on the POLEE, fendant had probable and no University’s top jump- website as ‘the long cause or warrant to arrest Plaintiff. among for ... long er the Rebels the top actions, aAs result of these alleg- (Mountain jumpers in the MWC West incarcerated, es that wrongly she was re- ” Conference).’ complaint liberty, stricted of subjected her and to began states that her troubles on Septem- psychological harm. 10, 2007, ber with when she met Defendant UNLV, Krainski further alleges that and her on-going Wallenfeldt “advised Mills, Clark, Burns, Jiminez, and Carrasco harassing threatening and by behavior” proceeded then to wrongly initiate student that, Polee. in “retalia- disciplinary against proceedings her. Her making complaint tion for her against a complaint explains: star athlete”: In October Defendants 11, 2007, September 27.On Defendants UNLV, MILLS, CLARK, BURNS, WALLEN-FELDT and PINI contacted JIMENEZ, and brought CARRASCO POLEE, Defendant without Plaintiffs against formal charges Plaintiff al- for consent confidentiality, and breach of leged violations of University Ne- and her informed vada, Vegas Las Student Conduct by made conspired Plaintiff with and Code.... Defendant POLEE story to fabricate a about Plaintiff attempting UNLV, to attack PO- MILLS, 33. Defendants scissors, LEE pair CLARK, with a BURNS, all before JIMENEZ, Plaintiff opportunity would have failed provide CARRASCO Plaintiff 3. Krainski named also Polee as a defendant. retaliation her for defense law Krainski's suit; responded by filing third-party Polee sought preliminary com- injunction she also plaint sought with reinstating cross-claims in which onto her the track team. dis implead Scott-Williams, Yvonne head trict court dismissed Polee’s federal claims team, coach of the UNLV preliminary track as a third- and denied the motion in party defendant. junction. disposed Polee appeal UNLV We of Polee's Mill, (9th wrongfully and Williams removed her from Fed.Appx. Krainski v. Cir. 2009) the track scholarship team and her (unpublished). revoked motion, reasoning that Eleventh of the formal hear- notice proper with immunity barred Krainski’s Amendment ing. ... MILLS, against UNLV, constitutional claims 34. Defendants BURNS; JIMENEZ, Employees in their official ca- CLARK, and the UNLV hearing on qualified immunity a formal pacities, held CARRASCO they at which time against November claims Krainski’s federal barred repre- Plaintiff to be failed allow each personal in their the UNLV advisers, her by assisted sented and/or Additionally, the capacities. district representation made despite explicit state a that Krainski failed to determined would be that Plaintiff Defendants for violation of her Fourth Amend- claim assist- represented to be allowed and/or rights, process due ment substantive advisers, intentionally causing ed said procedural rights, and representing to be ineffective at Plaintiff dismissing Krainski’s federal rights. After hearing.... at said herself prejudice, the district court claims *5 fact no evidence Despite the jurisdiction over the declined to exercise support any of presented was ever remaining timely law state claims. This Plaintiff, made against the followed. appeal UNLV, MILLS, CLARK, Defendants JIMENEZ, BURNS, and CARRASCO II “Responsible” of Plaintiff to found The district court not err in dismiss- did completely ignoring the ev- charges, said ing against Krainski’s claims UNLV and Plaintiff, forever idence that exonerated in their Employees the UNLV official ca- transcript the and tarnishing educational a decision we review de novo. pacities, Plaintiff, causing as as of well record Yakama Indian Nation State Wash. physical inju- psychological and severe of (9th Revenue, 1241, 1245 Dep’t ries .... of Cir.1999). the ac- alleges that defendants’ Krainski opportunity of “depriv[ed] tions her bars “The Eleventh Amendment and further her ca- obtain an education its against agencies the State or for suits reer.” relief, types unequivocal all of absent con Krainski raised three Bible, by the state.” Romano v. 169 sent procedur- claims before the district court: Cir.1999) (9th (citing 1185 F.3d al due under the Fifth and Four- Halderman, 89, 100, 465 Pennhurst v. U.S. Amendments; pro- teenth substantive due (1984)). 67 79 L.Ed.2d Fifth Fourteenth cess under and jurisdictional Eleventh Amendment bar Amendments; un- Fourth Amendment and applies regardless of the nature relief imprisonment. In addi- lawful arrest and sought and extends to state instrumentali damages, “a monetary sought tion Allain, Papasan agencies. ties See Injunction, prohibiting De- Permanent 92 placing a agents from fendants their (1986). L.Ed.2d 209 transcript or placing hold on her academic findings or sanctions notation of immunity Amendment Eleventh her upon student file or against officials from official ca also shields state transcript.” Reserve pacity suits. See Central Life of (“Central N. Am. Co. v. Re Ins. Struve Employees sub-
UNLV the UNLV (9th serve”), F.2d 1160-61 Cir. Krain- filed motion to dismiss sequently 1988). A exception narrow exists “where granted complaint. The district ski’s 70-71, According- sought prospective is nature U.S. at S.Ct. 2304. relief ongoing ly, may on an violation bring and is based not action statuto- plaintiffs against constitutional or or UNLV the UNLV federal ry (emphasis in rights.” origi- Id. at 1161 capacities in their official under Monell. 277-78, nal); Papasan, also 478 U.S. at see III 2932; Indep. Living Ctr. S. S.Ct. Cal., Maxwell-Jolly, Inc. properly The district court dismissed Cir.2009) (9th (“[A] may ... plaintiff against Krainski’s constitutional claims action to compel maintain federal state Employees in personal capac- their compliance with prospective official’s qualified immunity. ities basis (citations rights.”) omit- plaintiffs federal State officials are entitled to ted). qualified immunity damages suits that the conclude district court We as their “insofar conduct does violate properly dismissed claims clearly statutory established constitu against the Eleventh UNLV under rights tional of which a person reasonable Amendment. concedes the would have known.” v. Fitzger Harlow University system Nevada and its constitu ald, agencies ent institutions are and instru (1982). “Determining L.Ed.2d 396 wheth mentalities of State within of Nevada qualified immunity er officials are owed the meaning of the Eleventh Amendment. (1) whether, inquiries: involves two taken *6 v. Rights
See Disabled
Action Comm. Las
light
most
party
favorable to the
Inc.,
Events,
Vegas
861,
n. 17
883
asserting
injury,
the facts
show
(9th Cir.2004) (noting that
the Nevada
the officer’s conduct
a
violated
constitu
System
Higher
of
Education is immune
(2)
so,
right;
tional
if
whether the
from suit under
the Eleventh Amend
right
clearly
was
light
established in
ment). Accordingly,
the district court
specific context of the case.”
v.
al-Kidd
properly
dismissed Krainski’s
claims
(9th Cir.2009)
949,
Ashcroft, 580 F.3d
964
against UNLV.
Katz,
194, 201,
(citing Saucier v.
533 U.S.
(2001)).
2151,
121 S.Ct.
U.S.
The district court did not err in conclud
(1959).
if the
“Probable cause exists
facts
qualified immunity
ing
precluded
to the officer
and circumstances known
Krainski’s substantive due
claims
believing
man in
prudent
warrant a
against the
In or
individual defendants.
committed.”
Id.
offense has been
[an]
viability
qualified
of a
der to determine
if the
mistaken that
officers were
“[E]ven
claim,
immunity
we
whether the
determine
existed, they
cause
arrest
...
probable
right
violated
constitutional
defendants
liability
if
are nonetheless immune
right
and whether the constitutional
was
Fuller v.
their mistake was reasonable.”
clearly established
the time of the de
(9th
Jewelry,
M.G.
Katz,
fendants’ actions. Saucier
(citation
omitted).
Cir.1991)
and footnote
S.Ct.
150 L.Ed.2d
(2001).
Callahan,
Under Pearson
Here, Krainski herself admitted
—
—,
Goff, Tram
officers
(2009),
may begin
L.Ed.2d 565
we
her pursuant
and Culver arrested
posch
immunity
qualified
analysis
considering
by Polee and two UNLV
to statements
clearly
is a violation of
whether there
es
Life Coordinators and other
Residential
law
indicating
determining
without
whether
investigative information
tablished
pair
had attacked Polee with a
violation
occurred.
allege
Krainski failed to
scissors.
guarantee of
substantive
any
complaint
argument
at oral
facts
“heightened protec
process provides
had
of the officers
suggesting
tion
government interference
against
*7
suspect
falsity
of
reason to
the state
liberty
rights
fundamental
and
in
certain
other
made
the victim
two
ments
Washington
Glucksberg,
v.
521
terests.”
instead,
university employees;
merely
she
2258,
117
U.S.
S.Ct.
138 L.Ed.2d
conclusory
in a
fashion that
(1997).
guaranteed
“liberty”
772
“knew,
known,
have
officers
or should
yet
fully
the Due Process Clause has
...
false” and that
were
presents
“a rational
circumscribed
investi
they
adequate
to conduct an
faded
which,
in
broadly speaking,
continuum
gation.
any
The record does
contain
from
a freedom
all substantial arbi
cludes
genuine
would create a
information that
trary impositions
purposeless
re
material fact as to whether the
issue of
straints, and which
...
recognizes
also
sufficiently
had facts
detailed to
officers
require particularly
that certain interests
person to
cause a reasonable
believe a
scrutiny
careful
needs asserted
state
crime had been committed and that
Raich v.
justify
abridgment.”
their
con
perpetrator.
Krainski was the
We
(9th Cir.2007)
Gonzales,
850,
500 F.3d
qualified immunity
as
applies,
clude that
497,
Ullman,
543,
(quoting Poe v.
367 U.S.
“a
officer could have be
reasonable
(1961) (Har
6 L.Ed.2d
his
lawful”
lieved that
or her conduct was
lan, J.,
protections
dissenting)). “The
of
suspect following
re
arresting
when
process have for the most
substantive due
and a
university employees
two
port from
relating
to matters
part been accorded
an
We thus af
alleging
student
attack.
and the
family, procreation,
marriage,
court’s
firm the district
dismissal
right
integrity.” Albright Oli-
bodily
cause of
Fourth Amendment
ver,
process protection
S.Ct.
than
as
Ewing,
(1994) (citations omitted).
L.Ed.2d 114
does not
allege
she was suspended or
dismissed from the university, but merely
her right
Krainski claims that
of sub-
that she received a disciplinary notation on
process
stantive due
was violated when a
In
her record.
the absence of any other
university
allegedly placed
official
an un-
precedent affirming a
pro-
substantive due
disciplinary
warranted
notation on her
cess violation under facts analogous to
transcript.4
here,
those
we are compelled to conclude
To determine whether a constitu
the contours of
right
Krainski
been
right
“clearly
tional
has
established”
asserts were not sufficiently
clear
qualified immunity purposes,
we must
reasonable official would understand that
“survey
legal landscape
and examine
he
what
or she is doing
right.
violates that
are
those cases that
most like the instant Accordingly,
affirm
we
the district court’s
Gates,
case.” Trevino v.
quali-
dismissal of the claim on the basis of
(9th Cir.1996) (citations omitted). The in
immunity
fied
without reaching the under-
quiry
in light
“must be undertaken
lying
question.
case,
specific context of the
not as a broad
Saucier,
general proposition.”
C
201, 121
Finally,
that UNLV
has
pres
been unable to
and various UNLV
violated
persuasive
procedural
ent us with
binding
process
or
au
due
rights in con-
thority
proposition
for the
that a
nection with a
disciplinary
school
hearing.
substan
process
Qualified immunity
tive due
protects
violation occurs
when a
school offi-
university
cials from
places
official
these
unwarranted
claims.
disciplinary
on
notation
a transcript. The
A procedural
claim
only case that has been cited to us as has two
deprivation
elements:
of a consti
supporting
proposition
Regents
is
tutionally protected liberty
property
in
University Michigan Ewing,
474 U.S.
terest and
adequate procedural
denial of
(1985).
rived
“an
right
contract
to
law was
clearly
not
established that
the
continued enrollment free from arbitrary
type
injury
of
alleges
constituted
223,
507;
dismissal.”
at
See id.
106 S.Ct.
constitutionally
a
protected “liberty” or
228-29,
(Pow
see also id. at
971
(1975),
729,
“shoplifter”
565,
designation
725
he
the
95 S.Ct.
L.Ed.2d
damage
reputation
“serious-
temporary
held that
would
his
Supreme Court
the
impair
employment opportu-
his future
high
ly
school students
suspensions
public
of
nities,”
Supreme
the
Court held that he
hearing implicated
without notice or
“avoid[ing]
in
not state
claim for violation of his
protected interest
did
students’
procedural
process rights.
the edu-
Id. at
unfair or
exclusion from
mistaken
711-12,
all of
unfortunate
saved amendment.” Res., (quoting Thinket Ink Info. hearing disciplinary while criminal brevity contemplate.” Fed. tion at that these rules against charges pending were her —could R.Civ.P. explicitly in an com- stated amended more Newman, plaint. See specifically that I note Gabrilowitz (1st Cir.1978). representa- claim—that she was allowed
