William Breck v. Roger Doyle

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM BRECK,
Plaintiff-Appellant,
v.
ROGER DOYLE; DAVID CLARK;
PATRICK KING; J. THOMAS SUSICH;
LAURA PETERS; KIMBERLY
FARMER; KATHLEEN
BRECKENRIDGE; CAREN JENKINS;
MONICA CAFFARATTI; STATE BAR
OF NEVADA; STATE OF NEVADA;
SUPREME COURT OF THE STATE OF
NEVADA,
Defendants-Appellees.
No. 18-15319
D.C. No.
3:12-cv-00649-MMD-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted October 23, 2019
San Francisco, California
FILED
NOV 15 2019
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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Before: BYBEE, N.R. SMITH, and COLLINS, Circuit Judges.1
William Breck filed a second amended complaint under 42 U.S.C. § 1983
against two sets of defendants. The first set—the Institutional
Defendants—consists of the State of Nevada, the Nevada Supreme Court, and the
State Bar of Nevada (“SBN”). The second set—the Individual
Defendants—consists of nine individuals who participated in Breck’s disciplinary
proceedings before the SBN. The district court found that all defendants were
immune from suit and dismissed Breck’s complaint. Breck appeals. Because the
parties are familiar with the facts, we will not recite them here. We have
jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand
for further proceedings.
1. As a threshold matter, Appellees argue that Breck lacks Article III standing.
To merit standing, a litigant must demonstrate (1) an “injury in fact” that is
“concrete and particularized” and “actual or imminent,” (2) that the injury is fairly
1 The Clerk is directed to amend the caption on the docket to reflect the
caption above. Specifically, the following parties should be removed: Janeen V.
Isaacson; Glenn M. Machado; Mikyla Miller; Donald Beury, Esquire; Yvette
Chevalier; Bryan Hunt; and Carol Hummel. Although named as defendants in the
original complaint in the district court, these individuals are not named in the
second amended complaint, which was the operative complaint at the time of the
district court’s order below. As a result, these individuals are not parties to and
have not participated in this appeal.
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traceable to the defendant’s conduct, and (3) that the injury “likely . . . will be
redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992) (internal quotation marks omitted). These elements must be
established “separately for each form of relief sought.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
Breck requests three forms of relief: a declaratory judgment, an “injunction
prohibiting the continuation of the practices and policies” of the SBN and Nevada
Supreme Court that are allegedly unconstitutional, and damages. He does not have
standing to seek injunctive or declaratory relief. Because Breck has been
perpetually barred from practicing law in the State of Nevada, the Nevada rules
governing the conduct of Nevada attorneys will never again apply to Breck. He
thus cannot demonstrate that he “is immediately in danger of sustaining some
direct injury” from continued application of the Nevada rules, precluding the
issuance of prospective relief. City of Los Angeles v. Lyons, 461 U.S. 95, 101–02,
105 (1983) (internal quotation marks omitted). As to damages, Appellees contend
that, because Breck does not challenge the order barring him from practicing law in
Nevada that resulted from the SBN proceedings, any injury that flows from that
order is not “fairly traceable” to the misconduct alleged in the complaint. We
agree that Breck lacks standing to seek damages resulting from the SBN’s
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disciplinary order. But Appellees’ argument fails to the extent that it overlooks
Breck’s allegations of compensable injuries that do not result from the SBN’s
disciplinary order. Breck does have standing to seek damages for those injuries.
Accordingly, we review the district court’s findings of immunity only with respect
to those damages claims.
2. The district court held that the Institutional Defendants were immune under
the Eleventh Amendment. The Eleventh Amendment’s “ultimate guarantee” is that
“nonconsenting States may not be sued by private individuals in federal court.”
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). The State of
Nevada has not waived its Eleventh Amendment immunity, so it is immune from
Breck’s damages claims. See Nev. Rev. Stat. § 41.031(3).
Eleventh Amendment immunity extends beyond the state itself. “[A]rms of
the [s]tate” also enjoy the Amendment’s protection. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 70 (1989). We have previously recognized that both the
Nevada Supreme Court and the SBN are arms of the State of Nevada, and so are
immune from § 1983 damages claims. O’Connor v. Nevada, 686 F.2d 749, 750
(9th Cir. 1982). As a result, the Eleventh Amendment precludes Breck’s damages
claims against all the Institutional Defendants. We affirm the district court’s
dismissal of Breck’s complaint as to these defendants.
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3. The district court held that the Individual Defendants were immune under
Nevada Supreme Court Rule 106(1), which affords “[a]ll participants in the
discipline process . . . absolute[] immun[ity] from civil liability” for “any action
taken in connection” with the disciplinary proceedings. But “[i]mmunity under
§ 1983 is governed by federal law; state law cannot provide immunity from suit for
federal civil rights violations.” Wallis ex rel. Wallis v. Spencer, 202 F.3d 1126,
1144 (9th Cir. 2000). Accordingly, the district court’s finding of immunity for the
Individual Defendants based solely on a Nevada Supreme Court rule was
erroneous.
Nevertheless, the Individual Defendants may still enjoy immunity under
federal law. Those Individual Defendants that are state employees and sued in
their official capacities are immune under the Eleventh Amendment. See Will, 491
U.S. at 71. But Eleventh-Amendment immunity does not apply to the Individual
Defendants in their personal capacities. See Kentucky v. Graham, 473 U.S. 159,
166–67 (1985). And Breck has sued each of the Individual Defendants in his or
her personal capacity.
Thus, if the Individual Defendants are immune in their personal capacities at
all, that immunity must find its source outside of the Eleventh Amendment or state
law. The Individual Defendants may well be entitled to various forms of federally-
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recognized common-law immunities, such as judicial or qualified immunity. See
Will, 491 U.S. at 67 (“[I]n enacting § 1983, Congress did not intend to override
well-established immunities or defenses under the common law.”); see also Hirsh
v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (holding that
California’s state bar prosecutor and judges are “entitled to quasi-judicial
immunity” for actions taken in disciplinary proceedings). But that is a factual
inquiry that the parties did not ask the district court to undertake. We leave that
issue for the parties to raise, and the district court to address, on remand. We
reverse the district court’s dismissal of Breck’s complaint as to the Individual
Defendants and remand for proceedings consistent with this memorandum.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings. Each party shall bear its own costs on appeal.2
2 In light of our disposition, we DENY as moot the pending motions to
dismiss the appeal.
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