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).