FILED
NOT FOR PUBLICATION DEC 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY MCINTYRE, No. 12-15452
Plaintiff - Appellant, D.C. No. 3:09-cv-00581-RCJ-
WGC
v.
HOWARD SKOLNICK; MARY
CARTER; GREGORY SMITH; LYON MEMORANDUM*
COUNTY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Chief District Judge, Presiding
Submitted November 6, 2013 **
San Francisco, California
Before: FLETCHER and NGUYEN, Circuit Judges, and DUFFY, District
Judge.****
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
Timothy McIntyre appeals the district court’s grant of summary judgment.
We review a grant of summary judgment de novo. Huppert v. City of Pittsburg,
574 F.3d 696, 701 (9th Cir. 2009). Because the issues in McIntyre’s First
Amendment retaliation claim are precluded by Hearing Officer Bill
Kockenmeister’s administrative determination, and because McIntyre has
abandoned his Due Process claim, we affirm.
“Federal courts give the same preclusive effect to the decisions of state
administrative agencies as the state itself would, subject to the ‘minimum
procedural requirements’ of the Due Process Clause of the Fourteenth
Amendment.” Dias v. Elique, 436 F.3d 1125, 1128 (9th Cir. 2006) (quoting
Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481–82 (1982)). Nevada gives
administrative determinations issue-preclusive effect, State ex rel. Univ. & Cmty.
Coll. Sys. v. Sutton, 103 P.3d 8, 16 (Nev. 2004), provided they satisfy four
requirements: “(1) the issue decided in the prior litigation must be identical to the
issue presented in the current action; (2) the initial ruling must have been on the
merits and have become final; [] (3) the party against whom the judgment is
asserted must have been a party or in privity with a party to the prior litigation; and
(4) the issue was actually and necessarily litigated.” Five Star Capital Corp. v.
Ruby, 194 P.3d 709, 713 (Nev. 2008) (footnote and internal quotation mark
omitted).
Kockenmeister’s determination satisfies the latter three requirements without
controversy. His ruling was on the merits and is considered final under Nevada
law, see Dickinson v. Am. Med. Response, 186 P.3d 878, 882 (Nev. 2008);
McIntyre is the same party against whom judgment was rendered in both suits; and
the relevant issues were actually litigated.
In addition, “the issue decided in the prior litigation [is] identical to the issue
presented in the current action.” Five Star Capital Corp., 194 P.3d at 713.
Kockenmeister determined that the substantial evidence failed to establish that
McIntyre was fired for exercising his First Amendment rights. If McIntyre lacked
substantial evidence that he was terminated for exercising his First Amendment
rights, he necessarily lacks proof under the higher preponderance of the evidence
standard. Dias is not controlling because here, unlike in Dias, the different
burdens of proof would not result in different outcomes for the administrative and
federal cases. See Dias, 436 F.3d at 1130.
McIntyre did not brief his Due Process claim and has thus abandoned it. See
Paulsen v. CNF Inc., 559 F.3d 1061, 1075–76 (9th Cir. 2009).
AFFIRMED.
3