                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 28 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



SIDNEY JACOBS,                                    No. 09-17316

              Plaintiff - Appellant,              D.C. No. 2:09-cv-00832-PMP-
                                                  GWF
  v.

MICHAEL TANCHEK,                                  MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                            Submitted January 12, 2011**
                              San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

       Sidney Jacobs appeals the district court's dismissal of his suit brought

pursuant to 42 U.S.C. y 1983. We have jurisdiction under 28 U.S.C. y 1291, and

we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Jacobs is a banquet server at the Mandalay Bay Casino ('Mandalay'). He is

a member of a union, and the terms of his employment are bound by a collective

bargaining agreement. In an administrative complaint before Michael Tancheµ,

Nevada Labor Commissioner, Jacobs alleged that Mandalay increased gratuity

charges to its customers and failed to account for these additional sums in its

ultimate distribution of gratuities to banquet servers.

      Tancheµ dismissed Jacobs's claim without prejudice until Jacobs could

demonstrate that he had exhausted remedies available to him under the collective

bargaining agreement. Rather than exhaust those remedies, Jacobs filed the instant

suit in federal district court under 42 U.S.C. y 1983 against Tancheµ in his

individual and official capacities. Jacobs claims that the exhaustion procedure

required by Nevada State law, as enforced by Tancheµ, constitutes a deprivation of

his federally protected right to freely participate in collective bargaining.

      We review the dismissal for failure to state a claim de novo, and we can

affirm on any ground supported by the record. Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008). Dismissal with prejudice and without leave to amend is

not appropriate unless it is clear on de novo review that the complaint could not be

saved by amendment. Eminence Capital LLC v. Aspeon, 316 F.3d 1048, 1052 (9th

Cir. 2003).


                                            2
                                            I

      Any claim against Tancheµ in his individual capacity is waived because

Jacobs does not mention an individual capacity claim in his opening brief. See

Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir. 1995). Moreover, he concedes in his

reply brief that any individual capacity claim was an error in pleading and urges

the court to excuse it. The district court's dismissal of the claim is affirmed.

                                           II

      Jacobs's official capacity claim turns on whether the exhaustion procedure

as required by Nevada Administrative Code section 607.100 constitutes a

deprivation of his federally protected right to freely participate in collective

bargaining. It does not.

      Jacobs analogizes his case to Lividas v. Bradshaw, 512 U.S. 107 (1994).

However, the facts of that case are distinguished from those here. In Lividas, the

state department of labor declined to hear Lividas's claim because the collective

bargaining agreement to which Lividas was a party provided that all disputes were

to proceed to arbitration. Id. at 112. The state completely foreclosed Lividas's

state-law rights and remedies because of her union membership. The Court held

that Lividas had properly alleged a y 1983 claim, reasoning that a state's refusal to

enforce state labor law because an employee's collective bargaining agreement


                                            3
provided for arbitration of disputes constituted an abridgment of the federally

protected right to participate in collective bargaining.

       The reasoning of Lividas supports the proposition that the decision to join in

a collective bargaining agreement cannot be burdened by a union member's

potential loss of rights under state law. However, in this case, Tancheµ's dismissal

without prejudice for failure to exhaust does not constitute a loss of state-law rights

on par with that in Lividas. The State has not completely foreclosed relief to

Jacobs; it simply requires that Jacobs demonstrate that he has exhausted his

remedies - the very remedies he has bargained-for - or that he demonstrate why

such remedies are inadequate or unavailable. Admittedly, employees who are not

party to a collective bargaining agreement need not do so, but not every distinction

that a state draws between union and non-union employees gives rise to a suit for

deprivation of a federal right. See Lividas, 512 U.S. at 134-35. The exhaustion

requirement may amount to a slight delay on Jacobs's ultimate route to state court

relief, but it is not the road blocµ that was at issue in Lividas.

       Because Jacobs has failed to allege the deprivation of a federally protected

right, the decision of the district court is affirmed.

       AFFIRMED.




                                             4
                                                                             FILED
Jacobs v. Tancheµ, No. 09-17316                                               JAN 28 2011
Rawlinson, Circuit Judge, concurring:                                     MOLLY C. DWYER, CLERK
                                                                           U.S . CO U RT OF AP PE A LS

      I concur in the judgment on the basis that Sidney Jacobs, the Plaintiff in this

case, failed to establish the existence of a constitutionally protected property

interest as is required to pursue a claim under 42 U.S.C. y 1983. See Wheaton v.

Webb-Petett, 931 F.2d 613, 615-16 (9th Cir. 1991).
