David Boruchowitz v. Robert Bettinger

FILED

NOT FOR PUBLICATION

JUN 27 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID BORUCHOWITZ, No. 14-16299

Plaintiff - Appellee, D.C. No. 3:12-cv-00196-RCJ-VPC

v.

MEMORANDUM*

ROBERT BETTINGER, individually and

in his official capacity as Nye County

Deputy District Attorney,

Defendant - Appellant,

And

NYE COUNTY and ROBERT BECKETT,

Defendants.

DAVID BORUCHOWITZ, No. 14-16350

Plaintiff - Appellee, D.C. No. 3:12-cv-00196-RCJ-VPC

v.

ROBERT BECKETT, individually and in

his former official capacity as Nye County

District Attorney,

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

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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FILED

Boruchowitz v. Bettinger, 14-16299, 14-16350

JUN 27 2016

CHRISTEN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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

1

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

3

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.

4