NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES R. BROWN, No. 21-15103

Plaintiff-Appellant, D.C. No. 2:20-cv-01363-GMN-DJA v.

THE LAKES CROSSING CENTER; MEMORANDUM*

NICKOLAS H. CULPEPPER; SHELLY

BRYANT,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Argued and Submitted November 19, 2021 San Francisco, California

Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.

Plaintiff Charles Brown brought an action under 42 U.S.C. § 1983 alleging

that Defendants Shelly Bryant and Nickolas Culpepper, his caseworker and

treating physician at the state-run Lake’s Crossing Center, conspired to deprive

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. him of due process in connection with a Sell1 hearing in state court. Invoking the

Rooker–Feldman doctrine, the district court dismissed the case for lack of subject

matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm

the dismissal on other grounds.

Brown did not name the state court or judge as a defendant, and he does not

seek injunctive relief that would prevent him from being forcibly medicated

pursuant to the state court’s order following the Sell hearing. Instead, he seeks

declaratory and monetary relief for an alleged conspiracy by his caseworker and

treating physician to deprive him of due process in connection with the hearing.

Because Brown’s complaint did not assert a legal wrong by the state court or seek

relief from its judgment, instead asserting “an allegedly illegal act or omission

by . . . [third] part[ies],” the federal action was not a de facto appeal of a state court

judgment. Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013) (quoting Noel v.

Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)); see also Kougasian v. TMSL, Inc., 359

F.3d 1136, 1140-41 (9th Cir. 2004).

The district court opined that “[i]n addition to barring de facto appeals from

state court judicial decisions, the Rooker–Feldman doctrine forbids federal district

1 Sell v. United States, 539 U.S. 166, 179 (2003) (establishing the circumstances under which a state may “involuntarily . . . administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial”).

2 courts from deciding issues ‘inextricably intertwined’ with an issue the state court

resolved in its decision.” To the contrary, “[o]nly when there is already a

forbidden de facto appeal in federal court does the ‘inextricably intertwined’ test

come into play.” Noel, 341 F.3d at 1158. Brown’s § 1983 action was not a de

facto appeal of a state court judgment, and the Rooker–Feldman inquiry should

have ended there. We therefore conclude that the district court erred in holding

that it lacked subject matter jurisdiction. But Defendants urge various alternative

grounds for affirmance, and “[w]e may affirm a district court’s judgment on any

ground supported by the record.” Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d

924, 926 (9th Cir. 2003).

We agree with Bryant that Brown has waived all his claims against her by

failing to raise them in his opening brief on appeal. See Greenwood v. F.A.A., 28

F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued

specifically and distinctly in a party’s opening brief.”). Brown omitted any

mention of Bryant in his opening brief, and his argument on reply that there was no

appealable final judgment as to her is unavailing: The district court dismissed the

whole complaint and entered judgment in favor of all defendants. We therefore

affirm the dismissal of all claims against Bryant.

Culpepper argues that he is entitled to qualified immunity on Brown’s

§ 1983 claim for damages, and we agree. To determine whether an official has

3 qualified immunity, we must consider “(1) whether, taken in the light most

favorable to the party asserting the injury, the facts alleged show the [official]’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.” O’Brien v. Welty, 818 F.3d

920, 936 (9th Cir. 2016) (quoting Krainski v. Nevada ex rel. Bd. of Regents, 616

F.3d 963, 970 (9th Cir. 2010)). Viewing the facts alleged in the light most

favorable to Brown, there is no indication that Culpepper engaged in any act or

omission that caused the deprivation of a constitutional right. And there is no

clearly established law that requires a treating physician, rather than the court, the

prosecution, or defense counsel, to provide a defendant with notice of an upcoming

Sell hearing. Culpepper is entitled to qualified immunity from damages on the

§ 1983 claim.

As for the claim against Culpepper for declaratory relief, “a case or

controversy exists justifying declaratory relief only when the challenged

government activity is not contingent, has not evaporated or disappeared, and, by

its continuing and brooding presence, casts what may well be a substantial adverse

effect on the interests of the petitioning parties.” Feldman v. Bomar, 518 F.3d 637,

642 (9th Cir. 2008) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d

1012, 1015 (9th Cir. 1990)). Counsel for Brown acknowledged at oral argument

that the state charges against Brown have been dismissed. At this point, Brown

4 faces no prospect of future forcible medication arising out of the Sell hearing in

question. What he seeks is damages for the alleged past violation of his

constitutional rights, but this case does not otherwise present an ongoing

controversy justifying declaratory relief. Brown’s claim for declaratory relief is

therefore moot.

Finally, Brown did not challenge the dismissal of the state negligence claims

against Culpepper in his opening brief. We affirm the dismissal of those claims

because they have been waived on appeal.

AFFIRMED.

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