Clevenger v. Dresser et al

Filing 51

ORDER GRANTING #18 MOTION TO DISMISS (and #24 motion to clarify record) by Judge Alsup. (whalc2, COURT STAFF) (Filed on 10/19/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TY CLEVENGER,

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For the Northern District of California

United States District Court

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No. C 17-02798 WHA

Plaintiff,
v.
ORDER GRANTING
MOTION TO DISMISS

GREGORY P. DRESSER, STACIA L.
JOHNS, KIMBERLY G. KASRELIOVICH,
and THE STATE BAR OF CALIFORNIA,
Defendants.
/

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In the opening salvo of this attorney-discipline action for injunctive relief, plaintiff Ty

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Clevenger, facing discipline by the State Bar of California, moved for a temporary restraining

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order and preliminary injunction while defendants — the State Bar and affiliated individuals —

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moved to dismiss (Dkt. Nos. 3, 18). A prior order denied plaintiff’s motion based on certain

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representations made by defense counsel at the hearing on that motion (Dkt. No. 22).

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Defendants subsequently moved to clarify the record because counsel’s representations turned

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out to be less than accurate (Dkt. No. 24). Another order held defendants’ motions in abeyance

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and granted in part plaintiff’s motion for discovery, allowing him to depose defendant Gregory

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Dresser for two hours as a result of defense counsel’s misrepresentations (Dkt. No. 40).

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Plaintiff used only one hour and 24 minutes of his two hours and asked numerous

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unreasonable questions. Having reviewed the transcript, the Court finds nothing inappropriate

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about the deponent’s responses (see Dkt. No. 44-1). With the deposition completed,

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defendants’ motion to clarify the record is GRANTED. This order now turns to the fully-briefed
motion to dismiss, and specifically to its Younger abstention argument (Dkt. No. 18 at 7–9).

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Younger v. Harris, 401 U.S. 37 (1971), requires federal courts to abstain from exercising

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jurisdiction where “(1) a state-initiated proceeding is ongoing; (2) the proceeding implicates

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important state interests; (3) the federal plaintiff is not barred from litigating federal

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constitutional issues in the state proceeding; and (4) the federal court action would enjoin the

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proceeding or have the practical effect of doing so.” San Jose Silicon Valley Chamber of

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Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091–92 (9th Cir. 2008)

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(citations omitted). An exception exists if there is a “showing of bad faith, harassment, or some

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other extraordinary circumstance that would make abstention inappropriate.” Id. at 1092

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(quoting Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982)).
In California, attorney-discipline proceedings “commence” with a notice of disciplinary

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For the Northern District of California

United States District Court

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charges. Canatella v. Cal., 404 F.3d 1106, 1110 (9th Cir. 2005) (citation omitted); Hirsh v.

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Justices of Supreme Court of State of Cal., 67 F.3d 708, 711 (9th Cir. 1995). Here, plaintiff

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filed this action after receiving only a notice of intent to file notice of disciplinary charges (see

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Dkt. Nos. 3-11; 18 at 10). But even if the proceeding against him had not yet “commenced”

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back then, it certainly appears to be “ongoing” now and headed to trial (see Dkt. No. 48).

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“Younger abstention applies even when the state action is not filed until after the federal action,

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as long as it is filed before proceedings of substance on the merits occur in federal court.” M&A

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Gabaee v. Cmty Redev. Agency of City of Los Angeles, 419 F.3d 1036, 1041 (9th Cir. 2005).

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The closest thing to a proceeding of substance on the merits in this action occurred early on

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with the denial of plaintiff’s motion for a temporary restraining order and preliminary injunction

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after a short hearing (see Dkt. Nos. 22–23). Neither that proceeding, nor any since, sufficed to

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defeat Younger abstention here. See Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987).

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Plaintiff’s authorities to the contrary are inapposite (see Dkt. No. 28 at 4). See Haw. Hous.

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Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (“A federal court action in which a preliminary

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injunction is granted has proceeded well beyond the ‘embryonic stage.’”); Adultworld

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Bookstore v. City of Fresno, 758 F.2d 1348, 1350–51 (9th Cir. 1985) (an “extended evidentiary

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hearing on the question of a preliminary injunction constituted a substantive proceeding on the

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merits”). The first requirement for Younger abstention is met here.
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Our court of appeals has held that California’s attorney-discipline proceedings implicate

claims because of the availability of discretionary judicial review. See Hirsh, 67 F.3d at

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712–13. Plaintiff nevertheless insists “abstention is improper” because he “will have no

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opportunity to present his claims,” again citing inapposite decisions (see Dkt. No. 28 at 4). See

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Dubinka v. Judges of Superior Court of State of Cal. for Cty. of Los Angeles, 23 F.3d 218,

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224–25 (9th Cir. 1994) (the appellants were not procedurally barred from raising constitutional

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arguments in state courts even if state courts had already rejected those arguments); Meredith v.

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Oregon, 321 F.3d 807, 818–20 (9th Cir. 2003) (Oregon law did not provide options for “timely”

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adjudication of the plaintiff’s federal claims). Under binding precedent, plaintiff is wrong. The

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For the Northern District of California

important state interests and provide an adequate opportunity to litigate federal constitutional

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United States District Court

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second and third requirements for Younger abstention are also met here. Since plaintiff brought

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this action for the sole purpose of enjoining the disciplinary proceeding against him, the fourth

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and final requirement for Younger abstention is met as well (see Dkt. No. 1 ¶¶ 23–26).

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Plaintiff also cites Privitera v. California Board of Medical Quality Assurance, 926 F.2d

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890 (9th Cir. 1991), and Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981), for the proposition

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that Younger abstention does not apply to “injunctive relief for First Amendment retaliation and

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selective prosecution” (Dkt. No. 28 at 4). Neither decision supports plaintiff’s position here.

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In Privitera, which challenged a medical license revocation proceeding against the

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plaintiff physician, the district court declined to dismiss the action based on Younger abstention

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because the plaintiff had “made a sufficient showing of bad faith or harassment to invoke the

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exception” to Younger but nevertheless denied a preliminary injunction, dismissed pendent

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claims, and stayed the federal action pending resolution of the state claims. 926 F.2d at 892,

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894. Our court of appeals, reviewing only the stay order and the denial of a preliminary

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injunction, had no occasion to examine the application of Younger abstention to First

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Amendment retaliation and selective prosecution claims, much less endorse the sweeping

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proposition plaintiff asserts here. See id. at 896, 898.

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In Fitzgerald, a non-binding decision, the district court found that a state prosecution
against the plaintiffs had been “brought for the purposes of harassment and retaliation and
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would not have been brought but for the improper influence exerted on the prosecutor by certain

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[county] judges to seek the indictments” after the plaintiffs exercised their First Amendment

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rights by criticizing certain county officials. 636 F.2d at 944–45. The Fifth Circuit concluded

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this finding was not clearly erroneous and consequently affirmed the district court’s injunction

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of the state prosecution. Ibid. Like Privitera, Fitzgerald merely applied the general principle

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that a “showing of bad faith, harassment, or some other extraordinary circumstance” would

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make Younger abstention inappropriate. See City of San Jose, 546 F.3d at 1092 (quotation and

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citation omitted). It does not support plaintiff’s theory that allegations of First Amendment

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retaliation or selective prosecution have some talismanic immunity against Younger abstention.
This order finds that plaintiff has not shown “bad faith, harassment, or some other

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For the Northern District of California

United States District Court

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extraordinary circumstance that would make abstention inappropriate” based on the evidentiary

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record here. See ibid. Even when given an extra opportunity to make that showing by taking a

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deposition of his choosing (see Dkt. No. 41 at 8:6–8), plaintiff squandered that opportunity and

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failed to improve the evidentiary record in his favor. It is time for him to return to state court,

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where this controversy concerning the disciplinary proceeding against him belongs. See

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Gilbertson v. Albright, 381 F.3d 965, 981 (9th Cir. 2004) (“When an injunction is sought and

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Younger applies . . . dismissal (and only dismissal) is appropriate.”). This Court expresses no

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opinion on the merits of that disciplinary proceeding. Counsel shall not argue otherwise based

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on anything in this order or in the history of this action.

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For the foregoing reasons, this action is DISMISSED. Plaintiff’s pending requests to file

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an updated motion for a temporary restraining order or preliminary injunction (Dkt. No. 46) and

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to file a motion to amend the complaint (Dkt. No. 49) are DENIED AS MOOT. The Clerk shall

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please CLOSE THE FILE.

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IT IS SO ORDERED.

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Dated: October 19, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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