Ty Clevenger v. Gregory Dresser

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 26, 2018
• Docket: 17-17136
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TY CLEVENGER, No. 17-17136

Plaintiff-Appellant, D.C. No. 3:17-cv-02798-WHA

v. MEMORANDUM* GREGORY P. DRESSER; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted December 19, 2018** San Francisco, California

Before: BOGGS,*** PAEZ, and OWENS, Circuit Judges.

Ty Clevenger, an inactive member of the State Bar of California (“State

Bar”), appeals from the district court’s orders dismissing his case based on

* 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). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Younger abstention, denying preliminary injunctive relief, and sanctioning the

State Bar’s counsel. Clevenger asserts First Amendment retaliation and selective

prosecution claims, alleging the State Bar sought his disbarment because of his

blogging that was critical of the bar. We review the district court’s decision to

abstain de novo. See Kenneally v. Lungren, 967 F.2d 329, 331 (9th Cir. 1992).

We review for abuse of discretion both the decision to deny a preliminary

injunction, see Puente Ariz. v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016), and

the imposition of sanctions, Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991). As

the parties are familiar with the facts, we do not recount them here. We have

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

1. The district court properly dismissed the case after concluding that each

element of Younger abstention was satisfied. For a federal court to abstain, it must

conclude that state proceedings are (1) ongoing, (2) implicate an important state

interest, and (3) offer the plaintiff an adequate opportunity to raise constitutional

claims. See ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754,

758 (9th Cir. 2014). Clevenger contests both whether state proceedings were

ongoing and whether they offered him a sufficient forum to litigate his claims.

First, state proceedings were ongoing even though Clevenger filed his

lawsuit in federal court before the State Bar filed formal charges against him. See

M&A Gabaee v. Cmty. Redevelopment Agency of L.A., 419 F.3d 1036, 1039 (9th

2 Cir. 2005) (“[I]t is not the filing date of the federal action that matters, but the date

when substantive proceedings begin.”). Here, the district court had not yet held

“any proceedings of substance on the merits” before the State Bar filed formal

disciplinary charges against Clevenger. Hicks v. Miranda, 422 U.S. 332, 349

(1975); see also Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 728-29

(9th Cir. 2017) (explaining the proper inquiry is “fact-specific”). Even in denying

Clevenger’s request for a preliminary injunction, for instance, the district court did

not evaluate the case’s merits. With federal litigation only in its “embryonic

stage,” abstaining to allow Clevenger’s claims to be heard in state proceedings was

proper. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (citation omitted).

Second, the State Bar’s disciplinary proceedings offer an adequate forum for

Clevenger to litigate his claims. This court has previously addressed Clevenger’s

argument, and each time held that this Younger element is met because the litigant

can seek review by the California Supreme Court. See, e.g., Canatella v.

California, 404 F.3d 1106, 1111 (9th Cir. 2005) (“Although judicial review is

wholly discretionary, its mere availability provides the requisite opportunity to

litigate.”); Hirsh v. Justices of Sup. Ct. of Cal., 67 F.3d 708, 713 (9th Cir. 1995)

(per curiam).

Finally, Younger’s bad-faith exception does not apply here. See Middlesex

Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982). Neither

3 Clevenger’s allegations nor any evidence in the record suggests that the State Bar

acted in bad faith in seeking his disbarment. The State Bar acted only after

Clevenger notified it that another jurisdiction had disciplined him. Thus, the State

Bar did not begin disciplinary proceedings “without a reasonable expectation of

obtaining a valid [disbarment],” Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975),

or to retaliate against the exercise of a constitutional right, see Dombrowski v.

Pfister, 380 U.S. 479, 489-90 (1965). The district court, therefore, properly held

that the bad-faith exception does not preclude abstention here.

2. Clevenger’s appeal from the denial of a preliminary injunction is moot.

See SEC v. Mount Vernon Mem’l Park, 664 F.2d 1358, 1361 (9th Cir. 1982)

(holding that an entry of final judgment moots an appeal from an order denying a

preliminary injunction). This rule applies even when a district court dismisses a

case on non-merits grounds. See Nationwide Biweekly, 873 F.3d at 730-31 (“If the

cases had been properly dismissed on Younger grounds, there would be no need to

reach the merits of the preliminary injunctions.”). As such, we do not address this

issue on appeal.

3. The district court did not abuse its discretion in sanctioning the State

Bar’s counsel for “misrepresentations” made in court by granting Clevenger the

opportunity to take a single two-hour deposition of a defendant. Clevenger argues

that the sanction was insufficient. But, the district court had significant discretion

4 in “fashion[ing] an appropriate sanction for conduct which abuses the judicial

process.” Chambers, 501 U.S. at 44-45.

AFFIRMED.