NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT ESPINOZA, No. 22-55331

Plaintiff-Appellant, D.C. No. 8:21-cv-01898-DOC-KES v.

UNION OF AMERICAN PHYSICIANS MEMORANDUM*

AND DENTISTS, AFSCME LOCAL 206; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted October 19, 2023** San Francisco, California

Before: W. FLETCHER, NGUYEN, and R. NELSON, Circuit Judges.

Robert Espinoza appeals from the district court’s dismissal of his 42 U.S.C.

§ 1983 action alleging that the unauthorized deduction of union dues from his pay

violated his First and Fourteenth Amendment rights under Janus v. American

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448

(2018). We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo.

Wright v. Serv. Emp. Int’l Union Loc. 503, 48 F.4th 1112, 1118 n.3 (9th Cir. 2022),

cert. denied, 143 S. Ct. 749 (2023). We may affirm on any ground supported by

the record. Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1106 (9th Cir.

2022), cert. denied, 143 S. Ct. 783 (2023). We affirm.

1. The district court properly dismissed the § 1983 claims Espinoza

alleged against his former union, the Union of American Physicians and Dentists,

AFSCME Local 206 (“UAPD”). UAPD did not act under color of state law when

it allegedly failed to process Espinoza’s request to cancel the deduction of dues

from his wages.

Actions by a private actor may be subject to § 1983 liability if the plaintiff

can show that the conduct was “fairly attributable to the State.” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982). To establish fair attribution, two

prongs must be met: (1) “the deprivation must be caused by the exercise of some

right or privilege created by the State or by a rule of conduct imposed by it or by a

person for whom it is responsible,” and (2) “the party charged with the deprivation

must be a person who may fairly be said to be a state actor.” Id. Neither prong is

met here.

First, Espinoza argues that UAPD “uses the authority of the state” through

2 California Government Code § 1153. That provision requires employees who wish

to cancel wage deductions for union dues to direct requests to the union, which is

responsible for processing such requests. Cal. Gov’t Code § 1153(h) (“Employee

requests to cancel or change deductions . . . shall be directed to the employee

organization rather than to the [State]. The employee organization shall be

responsible for processing these requests.”). Espinoza concedes that he originally

authorized UAPD to request such deductions, and his claims are premised on the

allegation that UAPD continued to request such deductions after he validly

withdrew authorization. This amounts to an allegation of “private misuse of a state

statute,” which “does not describe conduct that can be attributed to the State.”

Lugar, 457 U.S. at 941. By alleging that UAPD continued to request that dues be

deducted from his pay even after he had revoked his dues deduction authorization,

Espinoza necessarily alleged that UAPD “‘act[ed] contrary to the relevant policy

articulated by the State.’” Collins v. Womancare, 878 F.2d 1145, 1153 (9th Cir.

1989) (quoting Lugar, 457 U.S. at 940).

Second, Espinoza argues that UAPD is a “state actor” under the “joint

action” or “governmental nexus” tests. See Tsao v. Desert Palace, Inc., 698 F.3d

1128, 1140 (9th Cir. 2012). In Belgau v. Inslee, we held that the mere fact that a

state transmits dues payments to a union does not give rise to a section 1983 claim

against the union under the “joint action” test. 975 F.3d 940, 947–49 (9th Cir.

3 2020), cert. denied, 141 S. Ct. 2795 (2021). Nor would a state employer’s

“ministerial processing of payroll deductions pursuant to [e]mployees’

authorizations” create sufficient nexus between a state and a union to subject the

union to section 1983 liability. Id. at 947–48 & n.2; see also Wright, 48 F.4th at

1122 & n.6. Espinoza argues such a nexus exists because a memorandum of

understanding (“MOU”) between UAPD and his state agency employer California

Correctional Healthcare Services (“CCHCS”) created a “contractual partnership”

that enabled the continued unlawful deductions. But this MOU merely “provid[es]

a ‘machinery’ for implementing the private agreement by performing an

administrative task,” which is insufficient to establish state action. Belgau, 975

F.3d at 948 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 54 (1999)).

2. The district court properly dismissed Espinoza’s nominal damages

claim against CCHCS, the State Controller, and Attorney General because it is

barred by Eleventh Amendment sovereign immunity. We have recognized “that,

‘absent waiver by the State or valid congressional override,’ state sovereign

immunity protects state officer defendants sued in federal court in their official

capacities from liability in damages, including nominal damages.” Platt v. Moore,

15 F.4th 895, 910 (9th Cir. 2021) (quoting Kentucky v. Graham, 473 U.S. 159, 169

(1985)). Espinoza has not shown waiver by the State or valid congressional

override.

4 3. The district court properly dismissed Espinoza’s claims for

declaratory and injunctive relief as moot. Where circumstances change after

commencement of a suit such that the wrongful behavior is no longer likely to

recur against the plaintiff (for example, because the plaintiff left his job with the

defendant), “his claims for prospective relief [become] moot because he [can] no

longer benefit from such relief.” Slayman v. FedEx Ground Package Sys., Inc.,

765 F.3d 1033, 1048 (9th Cir. 2014). The dues deductions have ceased, and

Espinoza admits that he is no longer a member of UAPD and that he is unlikely to

rejoin. The voluntary cessation exception therefore does not apply because the

“allegedly wrongful behavior could not reasonably be expected to recur.” Friends

of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).

AFFIRMED.

5