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NOT FOR PUBLICATION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,…

MEMORANDUM **

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 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 *356 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, 99 Nev. 840 , 673 P.2d 499 (1983) (per curiam) that “prosecutors acting within the scope of their quasi-judicial duties are protected by…

dissenting:

I write separately because, in my view, Stevens v. McGimsey, 99 Nev. 840 , 673 P.2d 499 (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. 118 Nev. 609 , 55 P.3d 420, 423 (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 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (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 “leavefs] the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty”).

Washoe tracked Imbler ⅛ functional approach in which the availability of absolute immunity depends not on an individual’s job title…