FILED
NOT FOR PUBLICATION
APR 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELYNN NICKLER, No. 15-16051
Plaintiff - Appellant, D.C. No. 2:14-cv-1907-JCM-CWH
v.
MEMORANDUM*
COUNTY OF CLARK, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 15, 2016
San Francisco, California
Before: BYBEE and N.R. SMITH, Circuit Judges, and HELLERSTEIN,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Jacquelynn Nickler appeals from the district court’s denial of a preliminary
injunction. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). We affirm.
1. We review the ultimate denial of a preliminary injunction for an abuse of
discretion, assessing de novo whether the court applied the correct legal standard
and then determining whether the application of that standard was illogical,
implausible, or without support in the record. Pimentel v. Dreyfus, 670 F.3d 1096,
1105 (9th Cir. 2012). “When a district court denies a preliminary injunction
because there is no likelihood of success on the merits, we review [that] decision
de novo.” Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 980 (9th
Cir. 1993); see also Associated Gen. Contractors of Am. v. Metro. Waster Dist. of
S. California, 159 F.3d 1178, 1180 (9th Cir. 1998). The District Court did not
abuse its discretion in denying a preliminary injunction to bar the Clark County
judges from continuing to require Nickler to submit to security measures
applicable to all members of the public entering the Clark County Regional Justice
Center (“RJC”). Courthouse personnel in charge of security reasonably held
Nickler to be a security threat, based on her intemperate comments following the
Sandy Hook Elementary School shootings. They did not have to change their
decision because a committee of her employer, the District Attorney, gave her a
Certificate of Fitness, after a period of suspension, to continue her employment.
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2. To succeed on a motion for a preliminary injunction, a plaintiff must
demonstrate that it meets four criteria. Winter v. Natural Res. Def. Council, 555
U.S. 7, 20 (2008). The preliminary injunction must be in the public interest, and
likely prevent irreparable harm; the balance of equities must tip in plaintiff’s favor;
and plaintiff must be likely to succeed on the merits. Id. Nickler failed to show a
likelihood of success on the merits of her § 1983 claims or other claims, as
discussed below.
3. In determining Nickler’s likelihood of success on the merits, the District
Court did not err in holding that Nickler’s Fourth Amendment rights were not
violated. All members of the public who came into the RJC were searched to
protect courthouse security. Searches of public employees are judged by a
standard of reasonableness under all the circumstances. See O'Connor v. Ortega,
480 U.S. 709, 725-26. (1987) (plurality). Nickler conceded that the searches, as
applied to the public, were reasonable. Although employees were allowed to enter
without being searched, Nickler did not have a Fourth Amendment right to be
excused from search requirements that are typical of searches required to enter
courthouses. See, e.g., Klarfeld v. United States, 944 F.2d 583, 586 (9th Cir. 1991)
(upholding similar search of attorney at courthouse entry); McMorris v. Alioto, 567
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F.2d 897, 900 (9th Cir. 1978) (upholding similar search of general public at
courthouse entry).
4. The District Court did not err in holding that Nickler’s Fourteenth
Amendment rights to equal protection and due process of law were not violated.
With respect to equal protection, Nickler alleges no membership in a protected
class. Moreover, to the extent her claim is based on a “class-of-one” theory of
equal protection, such claim “has no place in the public employment context.”
Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 594 (2008). As to her due process
claim, Nickler did not establish a property right that was infringed. Bd. of Regents
v. Roth, 408 U.S. 564, 577 (1971) (“To have a property interest in a benefit, a
person clearly must have more than an abstract need or desire for it. . . He must,
instead, have a legitimate claim of entitlement to it.”).
5. The District Court did not err in determining that the security protections
applied against Nickler were not violations of the First Amendment, as her
statement did not involve a matter of public concern, or alternately involved a
threat. See Rendish v. City of Tacoma, 123 F.3d 1216, 1219 (9th Cir. 1997) (“To
be protected by the First Amendment, a public employee’s speech must involve a
matter of public concern.”); Lovell ex rel. Lovell v. Poway Unified Sch. Dist., 90
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F.3d 367, 371 (9th Cir. 1996) (“In general, threats are not protected by the First
Amendment.”).
7. The District Court did not err in finding that Nickler is not likely to succeed
on her Monell claim against Clark County. She shows no formal government
policy or longstanding custom or practice that was implicated, or final policy
making authority that was involved or who ratified a subordinate’s policy. See
Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) citing Monell
v. Dep’t of Social Services, 436 U.S. 658 (1978). Nor did the District Court err in
finding that Nickler was not likely to succeed on the merits of her Nevada
negligence claim, as she did not cite any law establishing that she was owed a duty
in the negligence context. See Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d
1172, 1175 (Nev. 2008) (negligence claim must establish duty of care).
8. The District Court did not abuse its discretion in finding that the other
elements of the Winter test weighed in favor of denying the injunctive relief.
Because Nickler failed to show a likelihood of success on the merits, she also
could not show that irreparable harm would likely result from failure to grant the
injunction. The public interest favors giving deference to those concerned about
public safety in court houses and other public buildings. And the balance of
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equities also favors concerns of public safety over personal sensitivities and
convenience of individuals.
AFFIRMED.
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