Rick McLellan v. Chris Perry, in his individual capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK MCLELLAN,
Plaintiff-Appellant,
v.
CHRIS PERRY, in his individual capacity;
JAMES WRIGHT, in his official capacity
as Director of the State of Nevada
Department of Public Safety; JAROLD
HAFEN, in his individual capacity; TONY
ALMARAZ,
Defendants-Appellees.
No. 15-15813
D.C. No.
3:12-cv-00391-MMD-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted December 15, 2016
San Francisco, California
Before: LUCERO,** GRABER, and HURWITZ, Circuit Judges.
FILED
DEC 23 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.
** The Honorable Carlos F. Lucero, Circuit Judge for the United States Court
of Appeals for the Tenth Circuit, sitting by designation.

-- 1 of 4 --

Plaintiff Rick McLellan timely appeals the dismissal of his claims, under 42
U.S.C. § 1983, against Defendant James Wright, sued only in his official capacity
as the Nevada Director of Public Safety, and against Defendants Tony Almaraz,
Chris Perry, and Jarold Hafen, sued only in their individual capacities. Reviewing
de novo the district court’s conclusion that claim preclusion bars this action against
all Defendants, Albano v. Norwest Fin. Haw., Inc., 244 F.3d 1061, 1063 (9th Cir.
2001), we affirm in part, reverse in part, and remand.
In determining whether claim preclusion applies to the administrative
decision, we ask whether the Nevada courts would apply claim preclusion.1 Miller
v. County of Santa Cruz, 39 F.3d 1030, 1032–35 (9th Cir. 1994). Nevada has a
"three-part test for determining whether claim preclusion should apply: (1) the
parties or their privies are the same, (2) the final judgment is valid, and (3) the
subsequent action is based on the same claims or any part of them that were or
could have been brought in the first case." Five Star Capital Corp. v. Ruby, 194
P.3d 709, 713 (Nev. 2008) (footnotes omitted).
1 At oral argument, Plaintiff argued that the standard of proof in the
administrative proceeding violated due process and that, therefore, the
requirements of United States v. Utah Construction & Mining Co., 384 U.S. 394,
422 (1966), are not met. Because Plaintiff failed to raise this argument specifically
and distinctly in his opening brief, the argument is waived. Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994).
2

-- 2 of 4 --

1. Privity exists only with respect to Defendant Wright. The named party in
the administrative proceeding was the Nevada Department of Public Safety and the
relief sought was reinstatement; the remedies sought against Defendant Wright in
this proceeding include an injunction mandating reinstatement. We conclude that
the Nevada courts, in light of their recent application of the Five Start privity test,
Weddell v. Sharp, 350 P.3d 80, 82–83 (Nev. 2015), would adopt the prevailing rule
that "[l]itigation involving the government is generally binding with respect to
governmental officials who are sued in their official capacities in later actions. . . .
By contrast, a judgment against a government does not bind its officials sued in
their personal capacities." Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987)
(citations omitted); accord Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013);
Mitchell v. Chapman, 343 F.3d 811, 822–23 (6th Cir. 2003); Willner v. Budig, 848
F.2d 1032, 1034 n.2 (10th Cir. 1988) (per curiam); Conner v. Reinhard, 847 F.2d
384, 394–95 (7th Cir. 1988); State v. Doherty, 167 P.3d 64, 72 (Alaska 2007); 18A
Charles Alan Wright et al., Federal Practice and Procedure § 4458 (1981);
Restatement (Second) of Judgments § 36(2) (1982). Accordingly, privity exists
between the agency and Defendant Wright, who is sued in his official capacity; but
privity does not exist between the agency and the other three Defendants, who are
sued in their individual capacities.
3

-- 3 of 4 --

2. The administrative decision was final.
3. Under Nevada law, Plaintiff could have brought the "same claim" against
the Nevada Director of Public Safety in the first case, had he availed himself of
judicial review. Holcombe v. Hosmer, 477 F.3d 1094, 1098–99 (9th Cir. 2007).
Additionally, we conclude that the Nevada courts would adopt the rule that, "[i]f an
adequate opportunity for review is available, a losing party cannot obstruct the
preclusive use of the state administrative decision simply by foregoing her right to
appeal." Plaine v. McCabe, 797 F.2d 713, 719 n.12 (9th Cir. 1986); accord Miller,
39 F.3d at 1034 n.3; Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755,
761–62 (9th Cir. 1988).
In sum, the district court correctly concluded that claim preclusion bars this
action against Defendant Wright, but the court erred by holding that claim
preclusion bars this action against the other Defendants. Because the district court
declined to reach Defendants’ alternative arguments for dismissal, we express no
view on any issue other than claim preclusion.
AFFIRMED in part; REVERSED in part and REMANDED. Costs on
appeal awarded to Plaintiff-Appellant.
4

-- 4 of 4 --