                     UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            OCT 24 2018
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
JACQUELYNN NICKLER,                               No.    16-17211

                 Plaintiff-Appellant,             D.C. No.
                                                  2:14-cv-01907-JCM-CWH
 v.                                               District of Nevada,
                                                  Las Vegas
COUNTY OF CLARK; et al.,
                                                  ORDER
                 Defendants-Appellees.

Before: SILER,* PAEZ, and IKUTA, Circuit Judges.

      The memorandum filed on August 15, 2018, is amended to add the

following sentence on page 5, line 13: “However, this obligation was not clearly

established at the time of the searches, cf. id. at 958, so defendants are entitled to

qualified immunity except as to Nickler’s request for injunctive relief, see

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989).”

      An amended memorandum is filed concurrently.

      With this amendment, the petition for panel rehearing is DENIED.

      The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.




      *
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
P. 35. The petition for rehearing en banc is DENIED. No further petitions for

rehearing will be entertained.




                                        2
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 24 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JACQUELYNN NICKLER,                             No.    16-17211

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-01907-JCM-CWH
 v.

COUNTY OF CLARK; et al.,                        AMENDED 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 14, 2018
                            San Francisco, California

Before: SILER,** PAEZ, and IKUTA, Circuit Judges.

      Jacquelynn Nickler appeals the district court’s dismissal of her complaint for

failure to state a claim. Nickler works as a team clerk with the Clark County

(Nevada) District Attorney’s Office. In December 2012, Nickler was temporarily

removed from work after making a comment that office administrators considered


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
threatening.

         When she was permitted to return to work, she had to enter the building as a

member of the public, meaning she had to have her belongings screened and her

person wanded. Other employees were not subjected to the same scrutiny upon

entering the building.

         Asserting injury for the continued screening, Nickler filed suit, alleging

violation of her First, Fourth, Ninth, and Fourteenth Amendment rights under 42

U.S.C. § 1983, a Monell claim, and a negligence claim. The district court granted

the defendants’ motion to dismiss on all claims.

         Upon review, we find that the district court correctly dismissed Nickler’s

claims under the First, Ninth, and Fourteenth Amendments, and her Monell and

negligence claims. However, it improperly dismissed Nickler’s Fourth Amendment

claim.

         First, because Nickler has not stated any facts giving rise to a plausible claim

that she was speaking on a matter of public concern, her First Amendment claim

fails. See Rendish v. City of Tacoma, 123 F.3d 1216, 1219 (9th Cir. 1997).

Relatedly, because we have never recognized the Ninth Amendment as a valid

ground for a § 1983 claim, that claim was also properly dismissed. Strandberg v.




                                             2                                   16-17211
City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).1

      Nickler’s Fourteenth Amendment equal protection argument fails because her

claim “that she was arbitrarily treated differently from other similarly situated

employees, with no assertion that the different treatment was based on [her]

membership in any particular class” is not cognizable in the public employment

context. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 594 (2008); see also Okwu

v. McKim, 682 F.3d 841, 846 (9th Cir. 2012). And because she has not shown that

she has a property interest in either her badging privileges or in the opportunity to

work overtime, her Fourteenth Amendment due process claim also cannot survive

the pleadings stage. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

      Additionally, Nickler’s claim for Monell liability must fail because she has

not alleged that any actions taken against her were pursuant to an official policy or

that any of the defendants involved were Clark County policymakers. Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690−91 (1978).           Moreover, because her

negligence claim is simply a rehashing of her constitutional and statutory claims,


      1
        To the extent that Nickler raises a claim based on an alleged Health Insurance
Portability and Accountability Act (HIPAA) violation, that claim fails because there
is no private right of action under HIPAA, Seaton v. Mayberg, 610 F.3d 530, 533
(9th Cir. 2010), and Nickler has not shown that Congress’s enactment of HIPAA
“create[d] new rights enforceable under § 1983 . . . in clear and unambiguous terms,”
Gonzaga University v. Doe, 536 U.S. 273, 290 (2002). Further, Nickler forfeited
any Americans with Disabilities Act claim by failing to raise it before the district
court. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.
2010).

                                          3                                   16-17211
Nickler’s negligence claim also fails. Cf. Sanchez ex rel. Sanchez v. Wal-Mart

Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009).

      Finally, Nickler argues that the defendants violated her “Fourth Amendment

rights by unreasonably continuing to have [her] searched despite the fact that [she]

was issued a Certificate of Fitness to perform all duties of her position, with no

restrictions.” It is axiomatic that “[i]ndividuals do not lose Fourth Amendment

rights merely because they work for the government instead of a private employer.”

O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality opinion). “Where a search

is undertaken by law enforcement officials to discover evidence of criminal

wrongdoing, . . . reasonableness generally requires the obtaining of a judicial

warrant.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). In certain

limited circumstances, however, neither probable cause nor a warrant is required.

See New Jersey v. T. L. O., 469 U.S. 325, 340–41 (1985).

      “[P]ublic employer intrusions on the constitutionally protected privacy

interests of government employees for noninvestigatory, work-related purposes, as

well as for investigations of work-related misconduct, should be judged by the

standard of reasonableness under all the circumstances.” O’Connor, 480 U.S. at

725–26. The search is reasonable if it is “justified at its inception and if the measures

adopted are reasonably related to the objectives of the search and not excessively




                                           4                                     16-17211
intrusive in light of the circumstances giving rise to the search.” City of Ontario v.

Quon, 560 U.S. 746, 761 (2010) (cleaned up).

      The defendants’ reliance on the administrative-search exception is misplaced.

Although the defendants could conduct “blanket suspicionless searches calibrated to

the risk” posed by the public entering the courthouse, United States v. Aukai, 497

F.3d 955, 958 (9th Cir. 2007) (en banc), Nickler was not a member of the public, but

rather an employee who had (like other employees) been previously allowed to enter

the courthouse without undergoing such a search. In order to single Nickler out for

treatment different than her peers, the defendants had to make an individualized

determination that Nickler merited a more intrusive search. Cf. id. at 962 (approving

a series of airport search procedures that were “escalating in invasiveness only after

a lower level of screening disclosed a reason to conduct a more probing search”

(citation omitted)). However, this obligation was not clearly established at the time

of the searches, cf. id. at 958, so defendants are entitled to qualified immunity except

as to Nickler’s request for injunctive relief, see Presbyterian Church (U.S.A.) v.

United States, 870 F.2d 518, 527 (9th Cir. 1989). At the motion to dismiss stage,

Nickler has sufficiently alleged that the defendants lacked individualized suspicion

to continue these searches after she obtained her Certificate of Fitness.2


      2
         Our general rule that a prior panel’s determination at the preliminary
injunction stage does not constitute the law of the case, see Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1076 n.5 (9th Cir. 2015), is applicable here.

                                           5                                    16-17211
      In this case, “[b]oth the work-relatedness of the search[] . . . that could obviate

the warrant requirement and the reasonableness of the search[] under the

circumstances are factual matters that must be developed on remand.”

Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1336 (9th Cir. 1987).

Nickler has thus stated a claim to relief that is “plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                           6                                     16-17211
