Hussein v. Nevada System of Higher Educat , 480 F. App'x 893 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES CARR, No. 08-17346
Plaintiff, D.C. No. 3:06-cv-00197-LDG-
RAM
and
HUSSEIN S. HUSSEIN; RICHARD MEMORANDUM *
SCHWEICKERT,
Plaintiffs - Appellants,
v.
NEVADA SYSTEM OF HIGHER
EDUCATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted September 10, 2012 **
*
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).
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Plaintiffs Hussein S. Hussein and Richard Schweickert appeal from the
district court’s summary judgment in their 42 U.S.C. § 1983 action alleging
constitutional violations and state law breach of contract arising out of their
employment as faculty members at the University of Nevada, Reno. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Native Vill. of Noatak v.
Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994) (mootness); Coszalter v. City of
Salem, 320 F.3d 968, 973 (9th Cir. 2003) (summary judgment). We may affirm on
any basis supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534
F.3d 1116, 1121 (9th Cir. 2008). We affirm.
The district court properly determined that plaintiffs’ grievance process
claims were moot because of the subsequent changes in the Nevada System of
Higher Education Code that again provide a grievance process for faculty
evaulations. See Chem. Producers. & Distrib. Ass’n v. Helliker, 463 F.3d 871, 875
(9th Cir. 2006) (“Where intervening legislation has settled a controversy involving
only injunctive or declaratory relief, the controversy has become moot.” (citation
and internal quotations omitted)). Further, plaintiffs have not demonstrated that
this case falls within the “capable of repetition yet evading review” exception to
the mootness doctrine. Native Vill. of Noatak, 38 F.3d at 1509-10 (discussing
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“capable of repetition yet evading review” exception).
Summary judgment was also proper on plaintiffs’ claims regarding the
contents of faculty members’ employment files because plaintiffs failed to
demonstrate an actual injury or real and immediate threat of future harm. See
O’Shea v. Littleton, 414 U.S. 488, 496 (1974).
Because we affirm on the basis of mootness and standing, we need not reach
the merits of plaintiffs’ remaining contentions.
AFFIRMED.
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