NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELYNN NICKLER, No. 20-16334
Plaintiff-Appellant, D.C. No.
2:14-cv-01907-JCM-DJA
v.
COUNTY OF CLARK; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted June 9, 2021
Seattle, Washington
Before: GOULD, CLIFTON, and MILLER, Circuit Judges.
Jacquelynn Nickler appeals the United States District Court for the District of
Nevada’s dismissal of her complaint and the court’s denial of her request for leave
to amend. Because the parties are familiar with the facts and procedural history of
the claim, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
First, the district court did not err when it dismissed Nickler’s remaining
injunctive relief claim as moot on the ground that Nickler’s badge privileges had
been restored. The facts have changed, and there is no present harm left to enjoin.
Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997).
Second, the district court properly held that no exception to the mootness
doctrine, such as the voluntary cessation doctrine, applied in this case. Nickler’s
badge privileges, the revocation of which underlies her Fourth Amendment
injunctive relief claim, were not restored because of the litigation. Public Utilities
Com’m of State of Cal. v. F.E.R.C., 100 F.3d 1451, 1460 (9th Cir. 1996) (finding the
voluntary cessation doctrine did not apply where the defendant’s decision “was
motivated by economic/business considerations, not this litigation”). Also, past
exposure to illegal conduct does not “in itself show a present case or controversy . .
. if unaccompanied by any continuing, present adverse effects.” Bayer v. Neiman
Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017) (citation omitted). It is unlikely
that Nickler’s badge privileges will be limited again, considering that Appellees have
been put on notice that they must first make “an individualized determination that
Nickler” merits a “more intrusive search” before revoking her badge privileges
again. Nickler v. Cnty. of Clark, 752 F. App’x 427, 430 (9th Cir. 2018). Considering
the unique facts of this case, and the fact that the Appellees have been put on notice
that they must make a determination before revoking the privileges again, the alleged
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wrongful behavior cannot “reasonably be expected to recur.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
The district court also did not abuse its discretion by denying Nickler leave to
file a First Amended Complaint. As to Nickler’s attempt to replead her Fourth
Amendment 42 U.S.C. § 1983 claim to include money damages, the district court
correctly held that the rule of mandate doctrine foreclosed Nickler’s claim. United
States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006) (“The rule of mandate
requires a lower court to act on the mandate of an appellate court, without variance
or examination, only execution.” (citation omitted)). We previously held that the
appellees in this case were entitled to qualified immunity except as to Nickler’s claim
for injunctive relief.
Regarding Nickler’s First Amendment 42 U.S.C. § 1983 and defamation per
se claims, the district court did not abuse its discretion by holding that amendment
would be futile. The district court correctly concluded that the proposed complaint
did not plausibly allege that “either Grierson or Lambermont defamed her.” Nickler
has not provided any specific factual allegations regarding what was said about her,
and to whom.
The district court also did not abuse its discretion by holding that amendment
would be futile as to Nickler’s First Amendment 42 U.S.C. § 1983 claim. The
district court correctly held that “Nickler does not cogently allege that she was
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speaking about a matter of public concern.” Rather, Nickler has judicially admitted
that her comment did not garner First Amendment protections, because she has said
that she was discussing her frustration with her work, rather than a matter of public
concern. See Weeks v. Bayer, 246 F.3d 1231, 1235 (9th Cir. 2001) (stating that
speech regarding individual personnel disputes and everyday workplace grievances
did not state a claim under the First Amendment).
The district court also did not abuse its discretion in concluding that
amendment would be futile as to Nickler’s remaining state tort claims. The district
court correctly noted that we previously held that Nickler’s intentional interference
with prospective economic advantage and civil conspiracy claims were time barred.
The district court stated that “this court cannot usurp the Ninth Circuit’s holding.”
Nickler’s state law tort claims are also time barred because they do not relate back
to the initial complaint. Martell v. Trilogy Ltd., 872 F.2d 322, 325 (9th Cir. 1989).
The district court also correctly held that the Foman factors support denial of
leave to amend “in light of Nickler’s undue delay in amending her complaint, the
futility of her proposed amended complaint, her judicial admissions making several
of the fatal deficiencies in her claims incurable, and her bad faith attempt to revive
the state law tort claims she raised in the companion case . . . .” See Foman v. Davis,
371 U.S. 178, 182 (1962). The district court correctly dismissed Nickler’s complaint
with prejudice.
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AFFIRMED.
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Jacquelynn Nickler v. County of Clark
Combined Opinion