Jacquelynn Nickler v. County of Clark

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JACQUELYNN NICKLER, No. 16-17211
Plaintiff-Appellant, D.C. No.
2:14-cv-01907-JCM-CWH
v. District of Nevada,
Las Vegas
COUNTY OF CLARK; et al.,
ORDER
Defendants-Appellees.
Before: SILER,* PAEZ, and IKUTA, Circuit Judges.
The memorandum filed on August 15, 2018, is amended to add the
following sentence on page 5, line 13: “However, this obligation was not clearly
established at the time of the searches, cf. id. at 958, so defendants are entitled to
qualified immunity except as to Nickler’s request for injunctive relief, see
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989).”
An amended memorandum is filed concurrently.
With this amendment, the petition for panel rehearing is DENIED.
The full court has been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
P. 35. The petition for rehearing en banc is DENIED. No further petitions for
rehearing will be entertained.
2
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELYNN NICKLER, No. 16-17211
Plaintiff-Appellant, D.C. No.
2:14-cv-01907-JCM-CWH
v.
COUNTY OF CLARK; et al., AMENDED MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted June 14, 2018
San Francisco, California
Before: SILER,** PAEZ, and IKUTA, Circuit Judges.
Jacquelynn Nickler appeals the district court’s dismissal of her complaint for
failure to state a claim. Nickler works as a team clerk with the Clark County
(Nevada) District Attorney’s Office. In December 2012, Nickler was temporarily
removed from work after making a comment that office administrators considered
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
threatening.
When she was permitted to return to work, she had to enter the building as a
member of the public, meaning she had to have her belongings screened and her
person wanded. Other employees were not subjected to the same scrutiny upon
entering the building.
Asserting injury for the continued screening, Nickler filed suit, alleging
violation of her First, Fourth, Ninth, and Fourteenth Amendment rights under 42
U.S.C. § 1983, a Monell claim, and a negligence claim. The district court granted
the defendants’ motion to dismiss on all claims.
Upon review, we find that the district court correctly dismissed Nickler’s
claims under the First, Ninth, and Fourteenth Amendments, and her Monell and
negligence claims. However, it improperly dismissed Nickler’s Fourth Amendment
claim.
First, because Nickler has not stated any facts giving rise to a plausible claim
that she was speaking on a matter of public concern, her First Amendment claim
fails. See Rendish v. City of Tacoma, 123 F.3d 1216, 1219 (9th Cir. 1997).
Relatedly, because we have never recognized the Ninth Amendment as a valid
ground for a § 1983 claim, that claim was also properly dismissed. Strandberg v.
2 16-17211
City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).1
Nickler’s Fourteenth Amendment equal protection argument fails because her
claim “that she was arbitrarily treated differently from other similarly situated
employees, with no assertion that the different treatment was based on [her]
membership in any particular class” is not cognizable in the public employment
context. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 594 (2008); see also Okwu
v. McKim, 682 F.3d 841, 846 (9th Cir. 2012). And because she has not shown that
she has a property interest in either her badging privileges or in the opportunity to
work overtime, her Fourteenth Amendment due process claim also cannot survive
the pleadings stage. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
Additionally, Nickler’s claim for Monell liability must fail because she has
not alleged that any actions taken against her were pursuant to an official policy or
that any of the defendants involved were Clark County policymakers. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690−91 (1978). Moreover, because her
negligence claim is simply a rehashing of her constitutional and statutory claims,
1
To the extent that Nickler raises a claim based on an alleged Health Insurance
Portability and Accountability Act (HIPAA) violation, that claim fails because there
is no private right of action under HIPAA, Seaton v. Mayberg, 610 F.3d 530, 533
(9th Cir. 2010), and Nickler has not shown that Congress’s enactment of HIPAA
“create[d] new rights enforceable under § 1983 . . . in clear and unambiguous terms,”
Gonzaga University v. Doe, 536 U.S. 273, 290 (2002). Further, Nickler forfeited
any Americans with Disabilities Act claim by failing to raise it before the district
court. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.
2010).
3 16-17211
Nickler’s negligence claim also fails. Cf. Sanchez ex rel. Sanchez v. Wal-Mart
Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009).
Finally, Nickler argues that the defendants violated her “Fourth Amendment
rights by unreasonably continuing to have [her] searched despite the fact that [she]
was issued a Certificate of Fitness to perform all duties of her position, with no
restrictions.” It is axiomatic that “[i]ndividuals do not lose Fourth Amendment
rights merely because they work for the government instead of a private employer.”
O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality opinion). “Where a search
is undertaken by law enforcement officials to discover evidence of criminal
wrongdoing, . . . reasonableness generally requires the obtaining of a judicial
warrant.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). In certain
limited circumstances, however, neither probable cause nor a warrant is required.
See New Jersey v. T. L. O., 469 U.S. 325, 340–41 (1985).
“[P]ublic employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct, should be judged by the
standard of reasonableness under all the circumstances.” O’Connor, 480 U.S. at725–26. The search is reasonable if it is “justified at its inception and if the measures
adopted are reasonably related to the objectives of the search and not excessively
4 16-17211
intrusive in light of the circumstances giving rise to the search.” City of Ontario v.
Quon, 560 U.S. 746, 761 (2010) (cleaned up).
The defendants’ reliance on the administrative-search exception is misplaced.
Although the defendants could conduct “blanket suspicionless searches calibrated to
the risk” posed by the public entering the courthouse, United States v. Aukai, 497
F.3d 955, 958 (9th Cir. 2007) (en banc), Nickler was not a member of the public, but
rather an employee who had (like other employees) been previously allowed to enter
the courthouse without undergoing such a search. In order to single Nickler out for
treatment different than her peers, the defendants had to make an individualized
determination that Nickler merited a more intrusive search. Cf. id. at 962 (approving
a series of airport search procedures that were “escalating in invasiveness only after
a lower level of screening disclosed a reason to conduct a more probing search”
(citation omitted)). However, this obligation was not clearly established at the time
of the searches, cf. id. at 958, so defendants are entitled to qualified immunity except
as to Nickler’s request for injunctive relief, see Presbyterian Church (U.S.A.) v.
United States, 870 F.2d 518, 527 (9th Cir. 1989). At the motion to dismiss stage,
Nickler has sufficiently alleged that the defendants lacked individualized suspicion
to continue these searches after she obtained her Certificate of Fitness.2
2
Our general rule that a prior panel’s determination at the preliminary
injunction stage does not constitute the law of the case, see Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1076 n.5 (9th Cir. 2015), is applicable here.
5 16-17211
In this case, “[b]oth the work-relatedness of the search[] . . . that could obviate
the warrant requirement and the reasonableness of the search[] under the
circumstances are factual matters that must be developed on remand.”
Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1336 (9th Cir. 1987).
Nickler has thus stated a claim to relief that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
AFFIRMED in part, REVERSED in part, and REMANDED.
6 16-17211