Krainski v. Nevada Ex Rel. Board of Regents

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEGAN KRAINSKI, 

Plaintiff-Appellant,

v.

STATE OF NEVADA EX. REL.

BOARD OF REGENTS OF THE NEVADA No. 08-17523

SYSTEM OF HIGHER EDUCATION, on

D.C. No.

behalf of University of Nevada,

Las Vegas; REBECCA MILL;  2:08-cv-00417-JCM-

RICHARD CLARK; PHILLIP BURNS; GWF

NANNETTE JIMINEZ; SUSAN OPINION

CARRASCO; TYREE PINI; LESLIE

WALLENFELDT; BRETT GOFF; L.

TRAMPOSCH; J. CULVER; KENYA

POLEE,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued December 3, 2009

Submitted August 2, 2010

San Francisco, California

Filed August 2, 2010

Before: Betty B. Fletcher, Sidney R. Thomas and

N. Randy Smith, Circuit Judges.

Opinion by Judge Thomas;

Partial Concurrence and Partial Dissent by

Judge B. Fletcher

11097

KRAINSKI v. STATE OF NEVADA 11101

COUNSEL

Jason Bach; Las Vegas, Nevada; for the appellant.

Richard C. Linstrom; Las Vegas, Nevada; Susan Carrasco

O’Brien; Las Vegas, Nevada; Christian James Gabroy; Hen-

derson, Nevada; for the appellees.

OPINION

THOMAS, Circuit Judge:

Megan Krainski appeals the district court’s dismissal of her

Section 1983 action against the University of Nevada, Las

Vegas (“UNLV”)1 and various UNLV employees (“UNLV

Employees”)2 in their personal and official capacities. Krain-

ski alleges constitutional and state law violations arising from

an altercation with her former roommate, Kenya Polee, that

led to Krainski’s arrest and subjection to university discipline.3

1

State of Nevada ex. Rel. Board of Regents of the Nevada System of

Higher Education, on behalf of the University of Nevada.

2

The “University Employees” include Rebecca Mills, Vice President for

Student Life; Richard Clark, Director of Student Conduct and Residential

Life; Phillip Burns, Senior Student Conduct Officer; Nannette Jimenez,

Student Conduct Officer; Susan M. Carrasco, Assistant General Counsel;

Tyree Pini, Assistant Residential Life Coordinator; Leslie Wallenfeldt,

Assistant Residential Life Coordinator; and UNLV police officers Brett

Goff, L. Tramposch, and J. Culver.

3

Krainski also named Polee as a defendant. Polee responded by filing

a third-party complaint with cross-claims in which she sought to implead

11102 KRAINSKI v. STATE OF NEVADA

The district court dismissed Krainski’s federal claims with

prejudice and declined to exercise jurisdiction over the

remaining state law claims. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

I

According to Krainski’s complaint, Krainski and Polee

roomed together in residential housing at UNLV. According

to the complaint, Polee was “a prominent student-athlete at

UNLV, listed on the University’s website as ‘the top long

jumper for the Rebels . . . among the top long jumpers in the

MWC (Mountain West Conference).’ ” Krainski’s complaint

states that her troubles began on September 10, 2007, when

she met with Defendant Wallenfeldt and “advised her of on-

going harassing and threatening behavior” by Polee. Krainski

alleges that, in “retaliation for her making a complaint against

a star athlete”:

27. On September 11, 2007, Defendants WALLEN-

FELDT and PINI contacted Defendant POLEE,

without Plaintiff’s consent and in breach of confi-

dentiality, and informed her of the allegations made

by Plaintiff and conspired with Defendant POLEE to

fabricate a story about Plaintiff attempting to attack

POLEE with a pair of scissors, all before Plaintiff

would have an opportunity to file a formal complaint

against Defendant POLEE.

Yvonne Scott-Williams, head coach of the UNLV track team, as a third-

party defendant. Polee alleged that UNLV and Williams wrongfully

removed her from the track team and revoked her scholarship in retaliation

for her defense of Krainski’s lawsuit; she also sought a preliminary injunc-

tion reinstating her onto the track team. The district court dismissed

Polee’s federal claims and denied the motion for a preliminary injunction.

We disposed of Polee’s appeal in Krainski v. Mill, 356 Fed. App’x 951

(9th Cir. 2009) (unpublished).

KRAINSKI v. STATE OF NEVADA 11103

28. Defendants WALLENFELDT, PINI, and

POLEE then contacted UNLV Police and made false

statements to police officer [sic] in an attempt to

have Plaintiff arrested.

29. Defendant Officers GOFF, TRAMPOSCH, and

CULVER, knew, or should have known, that the

allegations made by Defendant POLEE were false,

but arrested Plaintiff for the alleged crime of Assault

with a Deadly Weapon.

30. Prior to making the arrest, Defendant Officers

GOFF, TRAMPOSCH, and CULVER did not con-

duct any investigation into the claims made by

Defendant POLEE, and had no probable cause or

warrant to arrest Plaintiff.

As a result of these actions, Krainski alleges that she was

wrongly incarcerated, restricted of her liberty, and subjected

to psychological harm.

Krainski further alleges that UNLV, Mills, Clark, Burns,

Jimenez, and Carrasco then proceeded to wrongly initiate stu-

dent disciplinary proceedings against her. Her complaint

explains:

32. In October 2007, Defendants UNLV, MILLS,

CLARK, BURNS, JIMENEZ, and CARRASCO

brought formal charges against Plaintiff for alleged

violations of the University of Nevada, Las Vegas

Student Conduct Code . . . .

33. Defendants UNLV, MILLS, CLARK, BURNS,

JIMENEZ, and CARRASCO failed to provide Plain-

tiff with proper notice of the formal hearing . . . .

34. Defendants UNLV, MILLS, CLARK, BURNS,

JIMENEZ, and CARRASCO held a formal hearing

11104 KRAINSKI v. STATE OF NEVADA

on November 13, 2007, at which time they each

failed to allow Plaintiff to be represented and/or

assisted by her advisers, despite the explicit repre-

sentation made by Defendants that Plaintiff would be

allowed to be represented and/or assisted by said

advisers, intentionally causing Plaintiff to be ineffec-

tive at representing herself at said hearing . . . .

35. Despite the fact that no evidence was ever pre-

sented to support any of the allegations made against

Plaintiff, Defendants UNLV, MILLS, CLARK,

BURNS, JIMENEZ, and CARRASCO found Plain-

tiff to be “Responsible” of said charges, completely

ignoring the evidence that exonerated Plaintiff, for-

ever tarnishing the educational transcript and record

of Plaintiff, as well as causing severe psychological

and physical injuries . . . .

Krainski alleges that the defendants’ actions “depriv[ed] her

of the opportunity to obtain an education and further her

career.”

Krainski raised three constitutional claims before the dis-

trict court: procedural due process under the Fifth and Four-

teenth Amendments; substantive due process under the Fifth

and Fourteenth Amendments; and Fourth Amendment unlaw-

ful arrest and imprisonment. In addition to monetary damages,

she sought “a Permanent Injunction, prohibiting the Defen-

dants and their agents from placing a hold on her academic

transcript or placing any notation of findings or sanctions

against her in her student file or upon her transcript.”

UNLV and the UNLV Employees subsequently filed a

motion to dismiss Krainski’s complaint. The district court

granted the motion, reasoning that Eleventh Amendment

immunity barred Krainski’s constitutional claims against

UNLV and the UNLV Employees in their official capacities,

and that qualified immunity barred Krainski’s federal claims

KRAINSKI v. STATE OF NEVADA 11105

against the UNLV Employees in their personal capacities.

Additionally, the district court determined that Krainski failed

to state a claim for violation of her Fourth Amendment rights,

her substantive due process rights, and her procedural due

process rights. After dismissing Krainski’s federal claims with

prejudice, the district court declined to exercise jurisdiction

over the remaining state law claims. This timely appeal fol-

lowed.

II

[1] The district court did not err in dismissing Krainski’s

claims against UNLV and the UNLV Employees in their offi-

cial capacities, a decision we review de novo. Yakima Indian

Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 1241,

1245 (9th Cir. 1999).

[2] “The Eleventh Amendment bars suits against the State

or its agencies for all types of relief, absent unequivocal con-

sent by the state.” Romano v. Bible, 169 F.3d 1182, 1185 (9th

Cir. 1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100

(1984)). The Eleventh Amendment jurisdictional bar applies

regardless of the nature of relief sought and extends to state

instrumentalities and agencies. See Papasan v. Allain, 478

U.S. 265, 276 (1986).

Eleventh Amendment immunity also shields state officials

from official capacity suits. See Central Reserve Life of N.

Am. Ins. Co. v. Struve (“Central Reserve”), 852 F.2d 1158,

1160-61 (9th Cir. 1988). A narrow exception exists “where

the relief sought is prospective in nature and is based on an

ongoing violation of the plaintiff’s federal constitutional or

statutory rights.” Id. at 1161 (emphasis in original); see also

Papasan, 478 U.S. at 277-78; Indep. Living Ctr. of S. Cal.,

Inc. v. Maxwell-Jolly, 572 F.3d 644, 660 (9th Cir. 2009) (“[A]

plaintiff may . . . maintain a federal action to compel a state

official’s prospective compliance with the plaintiff’s federal

rights.”) (citations omitted).

11106 KRAINSKI v. STATE OF NEVADA

[3] We conclude that the district court properly dismissed

Krainski’s claims against UNLV under the Eleventh Amend-

ment. Krainski concedes that the Nevada University system

and its constituent institutions are agencies and instrumentali-

ties of the State of Nevada within the meaning of the Eleventh

Amendment. See Disabled Rights Action Comm. v. Las Vegas

Events, Inc., 375 F.3d 861, 883 n.17 (9th Cir. 2004) (noting

that the Nevada System of Higher Education is immune from

suit under the Eleventh Amendment). Accordingly, the dis-

trict court properly dismissed Krainski’s claims against

UNLV.

[4] The district court also properly dismissed the claims

against the UNLV Employees in their official capacities. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)

(clarifying that suits against state officials in their official

capacity are no different from suits against the state itself).

[5] Krainski also asserts a theory under Monell that her

constitutional rights were infringed by a “de facto policy” of

UNLV and the UNLV Employees. See Monell v. Dep’t of

Social Servs. of N.Y., 436 U.S. 658, 690 n.55, 691 (1978).

However, the Supreme Court has expressly declined to extend

Monell’s theory of municipal liability under § 1983 to state

entities. Will, 491 U.S. at 70-71. Accordingly, Krainski may

not bring an action against UNLV or the UNLV Employees

in their official capacities under Monell.

III

The district court properly dismissed Krainski’s constitu-

tional claims against the UNLV Employees in their personal

capacities on the basis of qualified immunity.

[6] State officials are entitled to qualified immunity from

suits for damages “insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzger-

KRAINSKI v. STATE OF NEVADA 11107

ald, 457 U.S. 800, 818 (1982). “Determining whether officials

are owed qualified immunity involves two inquiries: (1)

whether, taken in the light most favorable to the party assert-

ing the injury, the facts alleged show the officer’s conduct

violated a constitutional right; and (2) if so, whether the right

was clearly established in light of the specific context of the

case.” Al-Kidd, 580 F.3d at 964 (citing Saucier v. Katz, 533

U.S. 194, 201 (2001)). “For a constitutional right to be clearly

established, its contours must be sufficiently clear that a rea-

sonable official would understand that what he is doing vio-

lates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(internal quotation marks omitted). “It is within our ‘sound

discretion’ to address these two prongs in any sequence we

see fit.” Al-Kidd, 580 F.3d at 964 (quoting Pearson v. Calla-

han, ___ U.S. ___, 129 S. Ct. 808, 818 (2009)).

A

[7] The district court properly concluded that UNLV

police officers Goff, Tramposch and Culver violated Krain-

ski’s Fourth Amendment right to be free from warrantless

arrest absent probable cause. A warrantless arrest must be

supported by probable cause to comport with the Fourth

Amendment. Henry v. United States, 361 U.S. 98, 102 (1959).

“Probable cause exists if the facts and circumstances known

to the officer warrant a prudent man in believing that [an]

offense has been committed.” Id. “[E]ven if the officers were

mistaken that probable cause to arrest . . . existed, they are

nonetheless immune from liability if their mistake was rea-

sonable.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th

Cir. 1991) (citation and footnote omitted).

[8] Here, Krainski herself admitted that UNLV police offi-

cers Goff, Tramposch and Culver arrested her pursuant to

statements by Polee and two UNLV Residential Life Coordi-

nators and other investigative information indicating that

Krainski had attacked Polee with a pair of scissors. Krainski

failed to allege in her complaint or at oral argument any facts

11108 KRAINSKI v. STATE OF NEVADA

suggesting that any of the officers had a reason to suspect the

falsity of the statements made by the victim and two other

university employees; instead, she merely alleged in a conclu-

sory fashion that the officers “knew, or should have known,

that the allegations . . . were false” and that they failed to con-

duct an adequate investigation. The record does not contain

any information that would create a genuine issue of material

fact as to whether the officers had facts sufficiently detailed

to cause a reasonable person to believe a crime had been com-

mitted and that Krainski was the perpetrator. We conclude

that qualified immunity applies, as “a reasonable police offi-

cer could have believed that his or her conduct was lawful”

when arresting a suspect following a report from two univer-

sity employees and a student alleging an attack. We thus

affirm the district court’s dismissal of Krainski’s Amendment

Fourth cause of action against the UNLV Employees based on

the defendants’ entitlement to qualified immunity.

B

The district court did not err in concluding that qualified

immunity precluded Krainski’s substantive due process

claims against the individual defendants. In order to deter-

mine the viability of a qualified immunity claim, we deter-

mine whether the defendants violated a constitutional right

and whether the constitutional right was clearly established at

the time of the defendants’ actions. Saucier v. Katz, 533 U.S.

194, 202 (2001). Under Pearson v. Callahan, 129 S.Ct. 808,

821 (2009), we may begin the qualified immunity analysis by

considering whether there is a violation of clearly established

law without determining whether a constitutional violation

occurred.

[9] The guarantee of substantive due process provides

“heightened protection against government interference with

certain fundamental rights and liberty interests.” Washington

v. Glucksberg, 521 U.S. 702, 720 (1997). The “liberty” guar-

anteed by the Due Process Clause has yet to be fully circum-

KRAINSKI v. STATE OF NEVADA 11109

scribed and presents “a rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary

impositions and purposeless restraints, and which also recog-

nizes . . . that certain interests require particularly careful

scrutiny of the state needs asserted to justify their abridg-

ment.” Raich v. Gonzales, 500 F.3d 850, 862 (9th Cir. 2007)

(quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J.,

dissenting)). “The protections of substantive due process have

for the most part been accorded to matters relating to mar-

riage, family, procreation, and the right to bodily integrity.”

Albright v. Oliver, 510 U.S. 266, 272 (1994) (citations omit-

ted).

Krainski claims that her right of substantive due process

was violated when a university official allegedly placed an

unwarranted disciplinary notation on her transcript.4

To determine whether a constitutional right has been

“clearly established” for qualified immunity purposes, we

must “survey the legal landscape and examine those cases that

are most like the instant case.” Trevino v. Gates, 99 F.3d 911,

917 (9th Cir. 1996) (citations omitted). The inquiry “must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Saucier, 533 U.S. at 201.

[10] Krainski has been unable to present us with any bind-

ing or persuasive authority for the proposition that a substan-

tive due process violation occurs when a university official

places an unwarranted disciplinary notation on a transcript.

The only case that has been cited to us as supporting that

proposition is Regents of University of Michigan v. Ewing,

474 U.S. 214 (1985). There, the Supreme Court considered a

public university student’s dismissal on academic grounds

from a six-year degree program. Id. at 215-16. The Supreme

Court denied the student’s substantive due process claim on

4

The defendants dispute that any disciplinary notation was placed on her

transcript, and Krainski has not placed the transcript into evidence.

11110 KRAINSKI v. STATE OF NEVADA

factual grounds, “assum[ing] the existence” of a constitution-

ally protected interest that derived from “an implied contract

right to continued enrollment free from arbitrary dismissal.”

See id. at 223; see also id. at 228-29 (Powell, J., concurring)

(arguing that it was “unnecessary to assume the existence” of

such a “dubious” right). Krainski’s case presents a weaker

claim to substantive due process protection than in Ewing, as

she does not allege that she was suspended or dismissed from

the university, but merely that she received a disciplinary

notation on her record. In the absence of any other precedent

affirming a substantive due process violation under facts anal-

ogous to those here, we are compelled to conclude that the

contours of the right Krainski asserts were not sufficiently

clear that a reasonable official would understand that what he

or she is doing violates that right. Accordingly, we affirm the

district court’s dismissal of the claim on the basis of qualified

immunity without reaching the underlying constitutional

question.

C

Finally, Krainski alleges that UNLV and various UNLV

Employees violated her procedural due process rights in con-

nection with a school disciplinary hearing. Qualified immu-

nity protects the school officials from these claims.

[11] A procedural due process claim has two elements:

deprivation of a constitutionally protected liberty or property

interest and denial of adequate procedural protection. Brew-

ster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149

F.3d 971, 982 (9th Cir. 1998).

As we have previously noted, the doctrine of qualified

immunity protects state actors when the constitutional right at

issue was not “clearly established” at the time of the actions

at issue. Saucier, 533 U.S. at 202. Here, the law was not

clearly established that the type of injury Krainski alleges

KRAINSKI v. STATE OF NEVADA 11111

constituted a constitutionally protected “liberty” or “property”

interest.

The Supreme Court has had occasion to consider this

threshold inquiry in several cases. First, in Goss v. Lopez, 419

U.S. 565 (1975), the Supreme Court held that temporary sus-

pensions of public high school students without notice or a

hearing implicated the students’ protected interest in “avoid[-

ing] unfair or mistaken exclusion from the educational pro-

cess, with all of its unfortunate consequences.” Id. at 576. The

Court reasoned that, “[h]aving chosen to extend the right to

an education to people of appellees’ class generally, [the

state] may not withdraw that right on grounds of misconduct

absent, fundamentally fair procedures to determine whether

the misconduct has occurred.” Id. at 574.

In Board of Regents v. Roth, the Supreme Court held that

an assistant professor without tenure at a state university had

no constitutionally protected liberty or property interest in his

continued employment by the university. 408 U.S. 564, 569

(1972). In so holding, the Court observed in dicta that there

was “no suggestion that the State, in declining to re-employ

the respondent, imposed on him a stigma or other disability

that foreclosed his freedom to take advantage of other

employment opportunities.” Id. at 573.

[12] Finally, in Paul v. Davis, the Supreme Court

expressly circumscribed the reach of both Roth and Goss and

held that “reputation alone, apart from some more tangible

interests,” does not constitute “ ‘liberty’ or ‘property’ by itself

sufficient to invoke the procedural protection of the Due Pro-

cess Clause.” 464 U.S. 693, 693, 701, 709-10 (1976); see also

WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1319 (9th

Cir. 1996) (announcing that Paul established a “stigma-plus

test”). The plaintiff in Paul had challenged the dissemination

to hundreds of merchants by police of a flyer listing him as

an “active shoplifter” and depicting his image. 464 U.S. at

695-96. Although he alleged that the “shoplifter” designation

11112 KRAINSKI v. STATE OF NEVADA

would damage his reputation and “seriously impair his future

employment opportunities,” the Supreme Court held that he

did not state a claim for violation of his procedural due pro-

cess rights. Id. at 697, 711-12.

[13] Here, Krainski does not allege that the UNLV

Employees suspended or expelled her for her conduct, or that

she was otherwise deprived of an entitlement to education

conferred by the state or secured by some other independent

source or understanding. She instead alleges that the defen-

dants damaged her reputation by charging her with violations

of the Student Conduct Code; finding her “Responsible” of

those charges; and “tarnishing [her] educational transcript and

record.” Such allegations amount to mere reputational injury

within the meaning of Paul and, without more, do not rise to

the level of a deprivation of a constitutionally protected lib-

erty or property interest. Krainski’s allegation of “loss of

future income” is materially indistinguishable from the Paul

plaintiff’s assertion that the defamatory flyer would “impair

his future employment opportunities.” Likewise, allegations

of “psychological trauma” are not sufficient to satisfy Paul’s

“stigma-plus” test. Rolon v. Henneman, 517 F.3d 140, 148 (2d

Cir. 2008) (humiliation, embarrassment, and emotional dis-

tress are not cognizable protected interests under Paul). Nor

are or conclusory suggestions of the “loss of liberty.” Spre-

cher v. Graber, 716 F.2d 968, 976 (2d Cir. 1983) (speculative

allegations as to loss of liberty insufficient). Thus, without

opining as to the constitutionality of the conduct, we can eas-

ily conclude that the law was not clearly established at the

time so as to put a reasonable official on notice that the

actions might violate the constitution.

The district court properly granted judgment against Krain-

ski on her claim for violation of procedural due process rights.5

5

Krainski did not suggest in her complaint, her briefing, or at oral argu-

ment that the absence of counsel at the disciplinary hearing violated the

constitution. At oral argument, she admitted that the defendants permitted

KRAINSKI v. STATE OF NEVADA 11113

IV

[14] The district court did not abuse its discretion in deny-

ing Krainski leave to amend her complaint. United States v.

SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th Cir.

2001) (citation omitted). “Dismissal without leave to amend

is improper unless it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” Thinket

Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,

1061 (9th Cir. 2004). To survive a motion to dismiss, a com-

plaint must contain sufficient factual matter to state a facially

plausible claim to relief. Ashcroft v. Iqbal, ___ U.S. ___, 129

S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Here, Krainski

conceded that there were no new facts that she would include

in her complaint to overcome its shortcomings. Under the cir-

cumstances, we conclude that the district court did not abuse

its discretion in denying Krainski leave to amend her com-

plaint.

AFFIRMED.

B. FLETCHER, Circuit Judge, concurring in part and dissent-

ing in part:

The district court erred by dismissing Krainski’s Fourth

Amendment claim and abused its discretion by dismissing the

complaint without leave to amend. I therefore respectfully

dissent from the portion of the majority’s opinion that affirms

the district court’s decision in those respects.

an attorney to attend the hearing with her and conceded that she was not

arguing that she was entitled to representation at the hearing. Therefore,

the First Circuit’s decision in Gabrilowitz v. Newman, 582 F.2d 100 (1st

Cir. 1978), is inapposite to the circumstances presented here, and we

decline to address the circumstances raised in that case.

11114 KRAINSKI v. STATE OF NEVADA

If the UNLV police officers who arrested Krainski knew or

should have known that the allegations against her were false,

the police officers would have violated the Fourth Amend-

ment’s clearly established prohibitions. See Baldwin v. Placer

County, 418 F.3d 966, 970-71 (9th Cir. 2005). The majority,

however, deems Krainski’s Fourth Amendment claim too

conclusory to survive.

Krainski’s complaint is more than “legal conclusions” or a

“recital[ ] of the elements of a cause of action,” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949, 1950 (2009), because she

alleges more than simply that UNLV police lacked probable

cause to arrest her. She alleges in some detail the factual cir-

cumstances under which the arrest took place. See Majority

Op. at 11102-03. She also alleges facts that explain why the

police lacked probable cause — namely, that the police

“knew, or should have known, that the allegations [against

her] were false.”

That allegation is enough to satisfy Federal Rule of Civil

Procedure 8(a) and to survive a motion under Rule 12(b)(6).

The Supreme Court has expressly approved as adequate an

analogous complaint alleging negligence. Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 513 n.4 (2002) (quoting Fed. R.

Civ. P. app. Form 9 (2000)). “On June 1, 1936, in a public

highway called Boylston Street in Boston, Massachusetts,

defendant negligently drove a motor vehicle against plaintiff

who was then crossing said highway.” Fed. R. Civ. P. app.

Form 9.1 Just as Krainski’s complaint does with respect to her

Fourth Amendment claim, Form 9 sketches the factual cir-

cumstances out of which the legal claim for negligence arose

— when, where, and in general terms, how the claim arose.

But Krainski’s complaint alleges more, for she explains not

only the surrounding circumstances but the precise manner in

which the police lacked probable cause to arrest her. Form 9,

1

“The forms in the Appendix suffice under these rules and illustrate the

simplicity and brevity that these rules contemplate.” Fed. R. Civ. P. 84.

KRAINSKI v. STATE OF NEVADA 11115

by contrast, simply alleges negligence without specifying why

the driver was negligent (by driving too quickly, for example,

or by being distracted). Krainski has adequately stated a claim

for a violation of the Fourth Amendment.

Even if the majority were right that Krainski’s Fourth

Amendment allegations are conclusory, it would still be

wrong to affirm the district court’s dismissal without leave to

amend.

The district court did not even address Krainski’s request

to amend her complaint. Because “[a] district court’s failure

to exercise discretion constitutes an abuse of discretion,” Cau-

dle v. Bristow Optical Co., 224 F.3d 1014, 1027 (9th Cir.

2007) (citation and quotation marks omitted), we should at

least remand, requiring the district court to exercise its discre-

tion one way or the other.

More importantly, it is easy to think of an amendment that

could save the complaint from the majority’s strictures —

Krainski could specify why and how the police “knew, or

should have known, that the allegations [against her] were

false.” The majority rightly acknowledges that “[d]ismissal

without leave to amend is improper unless it is clear, upon de

novo review, that the complaint could not be saved by any

amendment.” Majority Op. at 11113 (quoting Thinket Ink Info

Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th

Cir. 2004)). Here it is clear that the complaint could be saved

by amendment, even under the majority’s evaluation of the

current complaint. Krainski is entitled to an opportunity to

cure any inadequacies in the complaint.

The majority wrongly asserts that Krainski conceded there

were no new facts that she could use to save her complaint.

At oral argument, when asked about how he could amend the

complaint, counsel for Krainski stated:

We certainly are aware of many more facts now than

we were when we first drafted the complaint. So

11116 KRAINSKI v. STATE OF NEVADA

essentially, the allegations we could add to the com-

plaint at this point is to be more specific about the

actual conspiracy that took place, who it occurred

between, what school officials were actually

involved in this.

Oral arg. at 4:46-5:10. Part of the alleged conspiracy, of

course, was the fact that the police officers who made the

arrest knew or should have known that the allegations against

Krainski were false. Counsel was thus telling us that he could

be “more specific” about how and why the police officers

knew or should have known the allegations to be false. The

majority posits a concession that was never made.

Krainski is entitled to discovery to substantiate the Fourth

Amendment claim she properly alleges in her complaint; pre-

pared to allege additional facts, she should also be allowed to

amend her complaint.2 I therefore dissent.

2

I note specifically that her due process claim — that she was not

allowed representation at the disciplinary hearing while criminal charges

were pending against her — could be more explicitly stated in an amended

complaint. See Gabrilowitz v. Newman, 582 F.2d 100 (1st Cir. 1978).