Nancy Nolette v. Roger Tobler, in their official and individual capacities;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY NOLETTE,
Plaintiff-Appellant,
v.
ROGER TOBLER, in their official and
individual capacities; et al.,
Defendants-Appellees.
No. 13-17392
D.C. No.
2:12-cv-01414-JCM-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted April 5, 2017
Pasadena, California
Before: CLIFTON and OWENS, Circuit Judges, and ANTOON,** District Judge.
Nancy Nolette (Nolette) appeals from the dismissal of her pro se Complaint
alleging that Boulder City, Nevada (Boulder City) violated her constitutional rights
by naming her and other Boulder City citizens in several state lawsuits. Because
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
FILED
OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the parties are familiar with the facts, we do not recount them here. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
1. The district court erred in dismissing Nolette’s claims related to the 2006
case pursuant to the Rooker-Feldman doctrine. Under that doctrine, a federal
district court may not “excercis[e] subject matter jurisdiction over a suit that is a de
facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., 359 F.3d
1136, 1139 (9th Cir. 2004). A de facto appeal occurs “when a losing plaintiff in
state court brings a suit in federal district court asserting as legal wrongs the
allegedly erroneous legal rulings of the state court and seeks to vacate or set aside
the judgment of that court.” Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003).
However, if the plaintiff “does not complain of a legal injury caused by a state
court judgment, but rather of a legal injury caused by an adverse party, Rooker-
Feldman does not bar jurisdiction.” Id. at 1163.
Here, Nolette’s pro se Complaint is most plausibly construed as complaining
about legal injuries caused by Boulder City, an adverse party. Nolette does not
point to legal injuries caused by the 2006 state court judgment, but instead points
to legal injuries caused by Boulder City’s alleged policy of repeatedly suing its
citizens in violation of their constitutional rights. Furthermore, Nolette does not
seek to overrule or reverse the state court decision. Therefore, although her claims

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may be limited by preclusion, the district court erred in holding that they were
barred by the Rooker-Feldman doctrine. See id. at 1166.
2. The district court erred in holding that the remainder of Nolette’s claims
(those related to then-ongoing state court litigation) were barred by the Younger
abstention doctrine. See Younger v. Harris, 401 U.S. 37 (1971). The district court
issued its order before the Supreme Court’s decision in Sprint Communications,
Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013), and this court’s subsequent decision in
ReadyLink Healthcare, Inc. v. State Compensation Insurance Fund, 754 F.3d 754,
759 (9th Cir. 2014), both of which clarified that for Younger abstention to apply,
the relevant state proceedings must fall within one of three categories of
“exceptional circumstances”: (1) “ongoing state criminal prosecutions,”
(2) “certain civil enforcement proceedings,” or (3) “pending civil proceedings
involving certain orders . . . uniquely in furtherance of the state courts’ ability to
perform their judicial functions.” Sprint, 134 S. Ct. at 591 (alteration in original)
(internal quotation marks omitted). Therefore, the district court did not consider
whether one of these kinds of “exceptional circumstances” existed. Contrary to
Boulder City’s contention, Sprint and ReadyLink are controlling here, and are
dispositive of this appeal.
Boulder City contends that the state proceedings qualify as the type of “civil
enforcement proceedings” that warrant Younger abstention. Id. Unlike the “quasi-

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criminal” civil enforcement proceedings that require abstention, the proceedings
here (1) were not “initiated to sanction [Nolette] . . . for some wrongful act,” (2)
did not involve an investigation that ended in a formal complaint or charges, and
(3) were not in any way “akin to criminal proceedings.” ReadyLink, 754 F.3d at
759-60 (internal quotation marks omitted). Accordingly, the district court erred in
dismissing Nolette’s claims related to the then-ongoing state cases as barred by
Younger abstention.
3. Boulder City argues in the alternative that claim and issue preclusion bar
Nolette’s claims, and Nolette argues that issue preclusion applies to particular
aspects of the case. Where either Rooker-Feldman or Younger abstention is
inapplicable, preclusion may still limit a plaintiff’s claims. See Noel, 341 F.3d at
1166; ReadyLink, 754 F.3d at 760-61. We remand to the district court to consider
these preclusion issues in the first instance.
4. We decline to address Nolette’s remaining arguments related to the
merits of her First Amendment claims, as this appeal concerns a motion to dismiss.
Therefore, we cannot determine that Nolette has in fact suffered a constitutional
violation, as opposed to having plausibly alleged that she suffered one. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 569-70 (2007) (analysis on Rule 12(b)(6)
motion asks whether complaint alleges sufficient “facts to state a claim to relief

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that is plausible on its face”). The district court may address these issues on
remand.1
REVERSED and REMANDED.
1 Boulder City’s motion for judicial notice, filed on November 8, 2016, is granted.

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