Submitted March 9, 2018 Pasadena, California
from the United States District Court for the Central
District of California, No.2:15-cv-2478 SVW-JEM Stephen V.
Wilson, District Judge, Presiding Argued and
Before: A. Wallace Tashima and Jacqueline H. Nguyen, Circuit
Judges, and Michael H. Simon [*] District Judge.
panel reversed the district court's denial of a motion to
dismiss a second amended complaint on Eleventh Amendment
immunity, judicial exhaustion, and abstention grounds, and in
a concurrently filed order, the panel granted appellants'
request for publication.
a male University of California student, sued The Regents of
the University of California and the assistant dean of
students at University of California, Santa Barbara, after he
was disciplined for the sexual assault of a female student
during a trip to Lake Tahoe. Plaintiff denied the assault and
instead asserted that the sexual encounter was consensual. He
filed an action against The Regents bringing claims under
Title IX, 42 U.S.C. § 1983 and state law, and also
sought, in his second amended complaint, a writ of
administrative mandamus under California Code of Civil
Procedure § 1094.5, alleging that the University held an
unfair hearing and that its disciplinary hearing was not
supported by the evidence.
panel first rejected plaintiff's assertion that The
Regents waived their argument that Eleventh Amendment
immunity barred the § 1094.5 petition. The panel then
held that Eleventh Amendment principles required dismissal of
plaintiff's § 1094.5 writ petition because the
petition involved a state law claim and the prospective
injunctive relief exception to the Eleventh Amendment bar, as
set forth in Ex parte Young, 209 U.S. 123 (1908),
does not apply when a suit seeks relief under state law.
panel exercised pendent appellate jurisdiction over The
Regents' appeal from the order denying dismissal of
plaintiff's § 1983 claims and Title IX claims for
failure to exhaust judicial remedies. The panel held that
plaintiff's § 1983 and Title IX claims were
precluded because he failed to exhaust judicial remedies by
filing a § 1094.5 writ petition in state court. The
panel noted that although a plaintiff is not required by
statute to file a § 1094.5 petition in state court, in
this case the Eleventh Amendment barred plaintiff from filing
his writ petition in federal court. Therefore, plaintiff had
not exhausted his judicial remedies.
panel reversed the judgment and remanded to the district
court with instructions to dismiss plaintiff's §
1094.5 writ claim with prejudice, but without prejudice to
refiling in state court, and his § 1983, Title IX, and
declaratory relief claims without prejudice..
request of Defendants-Appellants for publication is granted.
The Memorandum filed March 27, 2018, 2018 WL 1476666, is
withdrawn and replaced by the Opinion filed concurrently with
petition for panel rehearing and rehearing en banc is denied
as moot. Further petitions for rehearing may be filed with
respect to the Opinion within the time permitted by the
TASHIMA, Circuit Judge:
interlocutory appeal, The Regents of the University of
California ("The Regents") and Suzanne Perkin
("Perkin"), the assistant dean of students at the
University of California at Santa Barbara ("UCSB"),
appeal the district court's denial of their motion to
dismiss John Doe's ("Doe") second amended
complaint ("SAC") on Eleventh Amendment immunity,
judicial exhaustion, and Younger abstention grounds.
merits of Doe's lawsuit are not before us, so we recite
only in brief the factual basis of his claims. The procedural
history of the case is more germane to the issues on appeal.