David Boruchowitz v. Robert Bettinger, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID BORUCHOWITZ,
Plaintiff - Appellee,
v.
ROBERT BETTINGER, individually and
in his official capacity as Nye County
Deputy District Attorney,
Defendant - Appellant,
And
NYE COUNTY and ROBERT BECKETT,
Defendants.
No. 14-16299
D.C. No. 3:12-cv-00196-RCJ-VPC
MEMORANDUM*
DAVID BORUCHOWITZ,
Plaintiff - Appellee,
v.
ROBERT BECKETT, individually and in
his former official capacity as Nye County
District Attorney,
No. 14-16350
D.C. No. 3:12-cv-00196-RCJ-VPC
FILED
JUN 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Defendant - Appellant,
And
ROBERT BETTINGER, individually and
in his official capacity as Nye County
Deputy District Attorney and NYE
COUNTY,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Submitted May 12, 2016**
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Defendants Robert Beckett and Robert Bettinger, state prosecutors in Nye
County, Nevada, brought an interlocutory appeal challenging the district court’s
order denying them summary judgment based on an immunity defense on a state
law malicious prosecution claim. The district court had supplemental jurisdiction
over the state law claim pursuant to 28 U.S.C. § 1367. We have jurisdiction over
this interlocutory appeal of the district court’s final order denying an immunity
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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defense under state law pursuant to 28 U.S.C. § 1291. See Kohlrautz v. Oilmen
Participation Corp., 441 F.3d 827, 830 (9th Cir. 2006). Defendants’ appeals are
timely under Federal Rules of Appellate Procedure 4(a)(4)(A) and 26(a)(1)(C).
We review de novo the district court’s denial of summary judgment based on
its ruling that Nevada state law does not extend absolute immunity to prosecutors
on common law claims of malicious prosecution. See Tritchler v. Cty. of Lake, 358
F.3d 1150, 1154 (9th Cir. 2004). The Nevada Supreme Court held in Stevens v.
McGimsey, 673 P.2d 499 (Nev. 1983) (per curiam) that “prosecutors acting within
the scope of their quasi-judicial duties are protected by absolute immunity from
claims arising from those acts,” except “where a plaintiff alleges that a prosecutor
has both an actual conflict of interest and knowledge that the charges filed are
baseless.” Id. at 500. Two years later, the Nevada Supreme Court reaffirmed its
decision that prosecutorial immunity does not shield against a state law claim for
malicious prosecution, explaining that the court was “persuaded that prosecutors
will not be adversely affected in their discharge of public duties by the application
of the qualified immunity where the allegations suggest malicious prosecution.”
Edgar v. Wagner, 699 P.2d 110, 112 (Nev. 1985) (per curiam).
Defendants argue that the Nevada Supreme Court has implicitly overruled
these holdings by adopting the U.S. Supreme Court’s absolute immunity doctrine,
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which they contend does not recognize any such exception to prosecutorial
immunity. In support of their argument, Defendants point us to the Nevada
Supreme Court’s more recent decision in State v. Second Judicial District Court ex
rel. County of Washoe, which clarified “the application of absolute quasi-judicial
immunity” in Nevada, but took “no position regarding whether prosecutorial or
discretionary immunity applie[d]” in that case. 55 P.3d 420, 423 & n.7, 427 (Nev.
2002) (per curiam). The holding in Washoe is not in direct conflict with the rule
announced in McGimsey, as it reaffirmed that absolute immunity extends only
insofar as a judicial officer is engaged in duties that are integral to the court’s
decision-making process—which does not include acts that could properly be
characterized as malicious prosecution, such as filing baseless charges for personal
gain or retribution. See Washoe, 55 P.3d at 426; McGimsey, 673 P.2d at 500.
Neither the Nevada Supreme Court nor this Court has explicitly recognized
that McGimsey is no longer good law. Cf. McAnally v. Clark Cty., Nevada, 320 F.
App’x 527 (9th Cir. 2009) (recognizing that Nevada state prosecutors enjoy
absolute immunity except when performing administrative or investigative
functions). Without further guidance from the Nevada Supreme Court, we are
bound to follow its prior pronouncements. See Cortez v. Skol, 776 F.3d 1046, 1054
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n.8 (9th Cir. 2015); Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1203 (9th Cir.
2002).
We lack jurisdiction to review the district court’s order denying Defendant
Beckett’s motion to decline supplemental jurisdiction or certify the immunity issue
to the Nevada Supreme Court. An order denying a motion to dismiss or for
alternative relief is not reviewable on interlocutory appeal unless the order is
“inextricably intertwined” with or “necessary to ensure meaningful review of” the
decision properly before this Court on appeal. Swint v. Chambers, 514 U.S. 35, 51
(1995); Meredith v. Oregon, 321 F.3d 807, 812 (9th Cir. 2003). The order denying
the motion to dismiss or for alternative relief is not inextricably intertwined with
the order denying summary judgment, as this Court must apply entirely different
legal standards to review these two separate decisions. See Cunningham v. Gates,
229 F.3d 1271, 1285 (9th Cir. 2000). Nor is it necessary to review this order to
ensure meaningful review of the judgment on appeal, as the district court’s
decision denying the motion to dismiss or for alternative relief does not implicate
“the very power the district court used to issue the ruling” properly before the
Court. See Melendres v. Arpaio, 695 F.3d 990, 997 (9th Cir. 2012) (quoting
Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1134 (9th Cir. 2005)).
AFFIRMED.
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Boruchowitz v. Bettinger, 14-16299, 14-16350
CHRISTEN, Circuit Judge, dissenting:
I write separately because, in my view, Stevens v. McGimsey, 673 P.2d 499
(Nev. 1983), is no longer good law in Nevada, and Defendants Bettinger and
Beckett are entitled to absolute immunity from Boruchowitz’s claims of malicious
prosecution and civil conspiracy to commit malicious prosecution.
In State v. Second Judicial District Court ex rel. County of Washoe, the
Nevada Supreme Court clarified when Nevada law affords absolute immunity. 55
P.3d 420, 423 (Nev. 2002) (“Because this case involves an important issue of law,
we take this opportunity to clarify the application of absolute quasi-judicial
immunity.”) The court cited Imbler v. Pachtman, 424 U.S. 409 (1976), which
established the test for absolute immunity applicable to malicious prosecution
claims brought under 42 U.S.C. § 1983. See id. at 427 (recognizing that absolute
immunity “leave[s] the genuinely wronged defendant without civil redress against
a prosecutor whose malicious or dishonest action deprives him of liberty”).
Washoe tracked Imbler’s functional approach in which the availability of
absolute immunity depends not on an individual’s job title but on the function the
individual served in the judicial process. Washoe observed that: (1) quasi-judicial
immunity has been extended to prosecutors; (2) prosecutors receive quasi-judicial
FILED
JUN 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1

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immunity when initiating a prosecution and presenting the state’s case; and (3)
quasi-judicial immunity applies even against claims of malicious and corrupt
action. Washoe, 55 P.3d at 424 & n.17. In my view, Washoe’s clarification of
Nevada law on absolute immunity cannot be reconciled with the rule in McGimsey,
which denies immunity for prosecutors performing their prosecutorial functions if
they act maliciously. See McGimsey, 673 P.2d at 500.
The court in Washoe considered whether social workers who performed
several different functions in the case were entitled to quasi-judicial immunity. See
Washoe, 55 P.3d at 422. The court ultimately declined to extend the doctrine of
quasi-judicial immunity to every action taken by a state employee while
supervising the care of foster children. See id. at 426–27. In this context, I read
the court’s statement that petitioners “did not raise below and we take no position
regarding whether prosecutorial or discretionary immunity applies to the claims set
forth in this case,” id. at 423 n.7, only as an indication that the court did not
consider whether the social workers’ conduct in pursuing a child protection case
was entitled to immunity on the ground that it was analogous to a prosecutorial
function. The disclaimer did not carve out prosecutorial immunity from the court’s
clarification of the law, and the court recognized that the absolute quasi-judicial
immunity it described “has been extended to prosecutors.” Id. at 424.
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Understanding Washoe to abrogate McGimsey does not eliminate the tort of
malicious prosecution under Nevada law, as the district court feared. Malicious
prosecution claims may proceed (subject to qualified immunity) against
prosecutors who step outside their prosecutorial role and act in an investigatory or
administrative capacity. See Edgar v. Wagner, 101 Nev. 226, 228 (1985)
(concluding prosecutor’s assistance in preparing affidavit supporting arrest warrant
was not a prosecutorial function and reversing dismissal of malicious prosecution
claim). Malicious prosecution claims may also be brought against police officers
who arrest without probable cause, see, e.g., Krainski v. State, No. 62841, 2015
WL 3494961, at *2 (Nev. May 29, 2015) (unpublished) (affirming grant of
summary judgment in favor of police officers defending malicious prosecution
claim based on illegal arrest because they had probable cause for the arrest), and
against civilians who direct, request, or pressure police to commence criminal
proceedings, see Lester v. Buchanen, 112 Nev. 1426, 1429 (1996) (affirming grant
of summary judgment in favor of defendant video store because it did not direct,
request, or pressure police to commence a criminal proceeding).
Because the district court found there is “no evidence that Defendants
stepped outside of their prosecutorial roles,” the rule in Imbler and Washoe affords
them immunity from suit under Nevada law, even if the charges they brought
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against Boruchowitz were baseless. For this reason, I would reverse the district
court on the issue of quasi-judicial immunity.1
1 The district court’s finding that no evidence suggests Defendants
stepped outside their prosecutorial roles appeared to relate only to malicious
prosecution. I would therefore remand for a finding on whether Defendants went
beyond their prosecutorial roles for purposes of Boruchowitz’s defamation claim.
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