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 2015-10

Nicholas Borovac v. Churchill Cnty School District , 621 F. App'x 479 ( 2015 )


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  •                                                                              FILED
NOT FOR PUBLICATION
OCT 29 2015
UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS BOROVAC,                                 No. 13-16546
Plaintiff - Appellant,              D.C. No. 3:11-cv-00336-LRH-VPC
v.
MEMORANDUM*
CHURCHILL COUNTY SCHOOL
DISTRICT; CAROLYN ROSS, in her
official and individual capacity; and
KEVIN LORDS, in his official and
individual capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, Senior District Judge, Presiding
Argued and Submitted October 23, 2015
San Francisco, California
Before: HAWKINS, SILVERMAN, and CHRISTEN, Circuit Judges.
Plaintiff Nicholas Borovac appeals the dismissal of his procedural due process,
substantive due process, and intentional infliction of emotional distress claims against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Churchill County School District, superintendent Carolyn Ross, and principal Kevin
Lords. We affirm.
The record shows that Plaintiff received all of the process to which he was due
before he was suspended from school for ten days. Goss v. Lopez,
    419 U.S. 565
    , 581
(1975); Wynar v. Douglas Cnty. Sch. Dist.,
    728 F.3d 1062
    , 1073-74 (9th Cir. 2013).
The record also shows that, regardless of their actual motivation, Defendants
could have had a legitimate reason for their decision to suspend Plaintiff for the
remainder of the school year. Thus, Plaintiff also received substantive due process.
Halverson v. Skagit Cnty.,
    42 F.3d 1257
    , 1262 (9th Cir. 1994) (citing Kawaoka v. City
of Arroyo Grande,
    17 F.3d 1227
    , 1234 (9th Cir. 1994)).
Finally, any error in dismissing Plaintiff’s intentional infliction of emotional
distress claim at the pleading stage was harmless in light of the record evidence and
remand for further proceedings would be futile. Johnson v. Riverside Healthcare Sys.,
LP,
    534 F.3d 1116
    , 1121 (9th Cir. 2008) (dismissal of a claim may be affirmed on any
ground supported by the record). Undisputed portions of the record show that
Plaintiff did not suffer the level of emotional distress required for liability under
Nevada law. Star v. Rabello,
    625 P.2d 90
    , 92 (Nev. 1981) (requiring “severe or
extreme emotional distress”). In addition, given the undisputed facts of Plaintiff’s
own conduct, Defendants’ conduct did not rise to the level of extreme and outrageous
conduct. See Maduike v. Agency Rent-A-Car,
    953 P.2d 24
    , 26 (Nev. 1998) (extreme
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and outrageous conduct is conduct a reasonable person would view as “outside all
possible bounds of decency” and “utterly intolerable in a civilized community”).
AFFIRMED.
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