Wilson v. Horton's Towing, 100918 FED9, 16-35320

Docket Nº:16-35320
Opinion Judge:PREGERSON, DISTRICT JUDGE
Party Name:Curtiss Wilson, Plaintiff-Appellant, v. Horton's Towing, a Washington corporation; United States of America, Defendants-Appellees.
Attorney:William Joseph Johnston (argued), Bellingham, Washington, for Plaintiff-Appellant. Robert W. Novasky (argued), Forsberg & Umlauf P.S., Tacoma, Washington, for Defendants-Appellees. Teal Luthy Miller (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United State...
Judge Panel:Before: Dorothy W. Nelson and Paul J. Watford, Circuit Judges, and Dean D. Pregerson, District Judge.
Case Date:October 09, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Curtiss Wilson, Plaintiff-Appellant,

v.

Horton's Towing, a Washington corporation; United States of America, Defendants-Appellees.

No. 16-35320

United States Court of Appeals, Ninth Circuit

October 9, 2018

Argued and Submitted June 11, 2018 Seattle, Washington

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Senior District Judge, Presiding D.C. No. 2:15-cv-00629-JCC

William Joseph Johnston (argued), Bellingham, Washington, for Plaintiff-Appellant.

Robert W. Novasky (argued), Forsberg & Umlauf P.S., Tacoma, Washington, for Defendants-Appellees.

Teal Luthy Miller (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Defendants-Appellees.

Before: Dorothy W. Nelson and Paul J. Watford, Circuit Judges, and Dean D. Pregerson, [*] District Judge.

SUMMARY[**]

Tribal Jurisdiction / Westfall Act

In an action challenging the civil forfeiture of plaintiff's truck that was seized by a police officer of the Lummi Indian Tribe, the panel affirmed the district court's order entering summary judgment against plaintiff on his conversion claim, but vacated the judgment of dismissal and remanded with instructions to dismiss the action without prejudice to refiling after plaintiff exhausts the appropriate remedies.

After leaving a casino on the Lummi Indian Reservation, Wilson was driving on a Washington state road crossing through the Lummi Indian Reservation when he was stopped by a Lummi tribal police officer who suspected that Wilson was driving while intoxicated. After a search of the truck revealed marijuana, the truck was seized and the Lummi Tribal Court issued a notice of civil forfeiture.

The panel agreed with the district court's ultimate conclusion that tribal jurisdiction was colorable in this case, but for a different reason than that given by the district court. The panel held that although Wilson was stopped on a state road, one could logically conclude that the forfeiture was a response to his unlawful possession of marijuana while on tribal land. The panel further held that the events giving rise to the conversion claim revealed a direct connection to tribal lands, and provided at least a colorable basis for the tribe's jurisdiction over the dispute. The panel affirmed the district court's decision to dismiss the case for comity reasons. The panel held that the Lummi Tribal Court must be given the opportunity to first address the question of whether tribal jurisdiction exists.

The panel held that the district court properly substituted the United States as a party for the tribal police officer pursuant to the Westfall Act. The panel employed the two-step test, delineated in Shirk v. U.S. ex rel. Dep't of Interior, 773 F.3d 999, 1006 (9th Cir. 2014), for determining whether a tribal employee could be deemed a federal Bureau of Indian Affairs employee for the purposes of Federal Tort Claims Act liability. The panel held that under both prongs of Shirk's analysis, Wilson had not rebutted the presumptions created by the Attorney General's certification that the officer was acting within the scope of his employment for the United States government at the time of the incident.

The panel held that the district court erred by dismissing the entire action with prejudice because Wilson can potentially renew his claims in federal court after the appropriate remedies have been exhausted.

OPINION

PREGERSON, DISTRICT JUDGE

This appeal concerns the seizure of Plaintiff Curtiss Wilson's truck by Brandon Gates, a police officer of the Lummi Indian Tribe. After visiting a casino on the Lummi reservation, Wilson was stopped by Lummi police and found with marijuana in his truck. Citing a violation of tribal drug laws, the Lummi Tribe issued a notice of civil forfeiture and took possession of Wilson's truck.

Wilson sued Officer Gates, who had served the forfeiture notice, and Horton's Towing, the towing company that had released the car to Officer Gates. The district court then substituted the United States as a defendant for Officer Gates pursuant to the Westfall Act, 28 U.S.C. § 2679(d).

At the summary judgment phase, Wilson's sole remaining claim was one for conversion against Horton's Towing and the United States (collectively, "Defendants"). The district court entered summary judgment against Wilson and dismissed the action with prejudice. It held that Wilson had failed to exhaust his tribal remedies against Horton's Towing, and that Wilson had also failed to exhaust his administrative remedies against the United States.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's order entering summary judgment. However, we vacate the judgment of dismissal and remand with instructions to dismiss this action without prejudice to refiling after Plaintiff has exhausted the appropriate remedies.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2014, Plaintiff Curtiss Wilson drove his 1999 Dodge Ram pickup to a casino located on the Lummi Indian Reservation.1 After drinking at the casino, Wilson travelled onto a Washington state road crossing through the reservation. Wilson was stopped on this road by Grant Assink, a Lummi tribal police officer, who suspected that Wilson was driving while intoxicated.2

Officer Assink searched Wilson's pickup truck and found several containers of marijuana inside. Officer Assink then alerted the Washington State Patrol, who arrested Wilson for driving under the influence. At the direction of the Washington State Patrol, Horton's Towing impounded the truck and towed it off the reservation.

The next day, the Lummi Tribal Court issued a "Notice of Seizure and Intent to Institute Forfeiture." The notice cited Section 5.09A.110(d)(2) of the Lummi Nation Code of Laws, which prohibits the possession of marijuana over one ounce, as the grounds for civil forfeiture. Lummi Tribal Police Officer Brandon Gates presented Horton's Towing with the forfeiture notice, and Horton's Towing released the truck to Officer Gates.

On the basis of these events, Plaintiff brought suit against Horton's Towing and Officer Brandon Gates. After the filing of a certification by the Attorney General, the district court substituted the United States as a party for Officer Gates pursuant to the Westfall Act, 28 U.S.C. § 2679(d).

Subsequently, Defendants filed motions for summary judgment. The district court entered summary judgment in Defendants' favor. It held that principles of comity required Wilson to exhaust his tribal remedies against Horton's Towing. It also held that Wilson had failed to exhaust his administrative remedies against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a).

Plaintiff timely appealed. See Fed. R. App. P. 4(a)(1).

STANDARD OF REVIEW

We review de novo a district court's decision to grant summary judgment. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001).

ANALYSIS

This appeal turns on two separate determinations of the district court. The first concerns its decision to dismiss Wilson's case against Horton's Towing for failure to exhaust tribal remedies. The second concerns the district court's decision to substitute the United States for Officer Gates as a party defendant, pursuant to the Westfall Act, 28 U.S.C. § 2679(d).

We address each issue in turn.

A. Exhaustion of Tribal Remedies against Horton's Towing

"Principles of comity require federal courts to dismiss or to abstain from deciding claims...

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