                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 29 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID OTTO SCHWAKE,                             No.    18-15725

                Plaintiff-Appellant,            D.C. No. 2:15-cv-00696-SPL

 v.
                                                MEMORANDUM*
ARIZONA BOARD OF REGENTS;
MICHAEL M. CROW; KEVIN COOK;
NOREAN SABLAN; RON HICKS;
GREGORY CASTLE; THOMAS SEAGER,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Steven Paul Logan, District Judge, Presiding

                       Argued and Submitted March 5, 2020
                            San Francisco, California

Before: WARDLAW, M. SMITH, and BUMATAY, Circuit Judges.

      David Otto Schwake appeals the district court’s order and judgment

dismissing with prejudice the claims he raised pursuant to 42 U.S.C. § 1983 and

Title IX, 20 U.S.C. § 1681(a). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We reverse the dismissal of the Title IX claim in a concurrently filed opinion. Here,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
we address the district court’s dismissal of the § 1983 claims pursuant to the judicial

doctrine of qualified immunity. “We review de novo the district court’s grant of a

motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the

complaint as true and construing them in the light most favorable to the nonmoving

party.” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016) (citation and

quotation marks omitted). We affirm.

      “Qualified immunity shields government officials from civil liability unless a

plaintiff establishes that: (1) the official violated a constitutional right; and (2) that

right was ‘clearly established’ at the time of the challenged conduct, such that ‘every

reasonable official’ would have understood that what he is doing violates that right.”

Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017) (quoting Ashcroft v. al-Kidd, 536

U.S. 731, 735, 741 (2011)). “We may ‘exercise [our] sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be addressed

first.’” Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019) (quoting

Pearson v. Callahan, 555 U.S. 223, 236 (2009)). “When, as here, defendants assert

qualified immunity in a motion to dismiss under Rule 12(b)(6), ‘dismissal is not

appropriate unless we can determine, based on the complaint itself, that qualified

immunity applies.’” O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (quoting

Groten v. Cal., 251 F.3d 844, 851 (9th Cir. 2001)).

      1.     The district court properly dismissed, pursuant to the doctrine of


                                            2
qualified immunity, the § 1983 claims for procedural due process violations against

Defendants Norean Sablan, Thomas Seager, Gregory Castle, and Ron Hicks.1

       To proceed on a procedural due process claim, a plaintiff must identify a

protected property or liberty interest. United States v. Guillen-Cervantes, 748 F.3d

870, 872 (9th Cir. 2014). Schwake failed to do so.

       Schwake asserted a property interest in his education and lab access, but he

failed to identify any basis pursuant to Arizona law that recognizes a property

interest in either. See Goss v. Lopez, 419 U.S. 565, 573 (1975) (concluding that “on

the basis of state law, appellees plainly had legitimate claims of entitlement to a

public education”); Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1072 (9th Cir.

2013) (same). Nor did Schwake allege that any “contract entitled him to [a] specific

right that the university allegedly took” from him. Doe v. Purdue Univ., 928 F.3d

652, 660 (7th Cir. 2019). Schwake also failed to identify any basis pursuant to

Arizona law which would show that he had a legitimate claim of entitlement to the

two- to three-year postdoctoral work opportunity that he allegedly lost. See Guillen-

Cervantes, 748 F.3d at 872. Thus, Schwake did not allege a protected property

interest.


       1
         Schwake named these defendants in their individual and official capacities.
However, a § 1983 damages action does not lie against these defendants in their
official capacities because state officials acting in their official capacity are not
“persons” for the purposes of § 1983. Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989).

                                         3
      Schwake also failed to identify a protected liberty interest.           Assuming

arguendo that the stigma-plus test applies to university disciplinary proceedings,

Schwake’s allegations do not show that any stigmatizing statements that university

officials made about him “effectively exclude[d] [him] completely from [his] chosen

profession.” Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 925 (9th Cir.

2013). The campus access restriction and prohibition on holding paid or volunteer

positions at the university could not plausibly exclude Schwake from his chosen

field. See id. at 926 (concluding that the plaintiff “has not alleged an unconstitutional

deprivation of liberty” when she was allegedly “barred from employment with one

division of the state government”). Schwake’s allegations about a “time gap in his

ability to research,” disrupted experiments, loss of funding and publication

opportunities, and possible “blacklist[ing]” from future jobs are also insufficient. Id.

at 925 (“‘[R]educed economic returns and diminished prestige, but not permanent

exclusion from, or protracted interruption of, gainful employment within the trade

or profession’ do not constitute a deprivation of liberty.” (citation omitted)).

Because Schwake failed to allege a protected property or liberty interest, he did not

allege violations of his procedural due process rights and, thus, the Defendants are

entitled to qualified immunity on these claims.

      2.     The district court also properly dismissed the § 1983 claims against

Defendants Sablan, Seager, Castle, and Hicks concerning alleged violations of a


                                           4
claimed right to informational privacy.

       A constitutional right must be “sufficiently definite [such] that any reasonable

official in the defendant’s shoes would have understood that he was violating it.”

Plumhoff v. Rickard, 572 U.S. 765, 779 (2014). This “inquiry must be undertaken

in light of the specific context of the case, not as a broad general proposition.”

Horton, 915 F.3d at 600 (emphasis added) (citation and internal quotation marks

omitted). Schwake failed to identify any law that clearly established a right to

informational privacy in the context of university disciplinary proceedings.2 The

Defendants are therefore entitled to qualified immunity for alleged violations of that

right in this context.

       AFFIRMED IN PART.




       2
        Schwake relied on cases concerning a statutory exemption pursuant to the
Freedom of Information Act. See Cochran v. United States, 770 F.2d 949, 956 (11th
Cir. 1985); Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984); Chang v. Dep’t of the
Navy, 314 F. Supp. 2d 35, 42 (D.D.C. 2004). These cases do not establish a
constitutional due process right in the university disciplinary proceedings context
and are, therefore, of no help.

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