791 F.3d 1104 (9th Cir. 2015), 12-17095, Pistor v. Garcia

Docket Nº:12-17095
Citation:791 F.3d 1104
Opinion Judge:BERZON, Circuit Judge:
Party Name:RAHNE PISTOR; GEORGE ABEL; JACOB WHITHERSPOON, Plaintiffs-Appellees, v. CARLOS GARCIA; FARRELL HOOSAVA; LISA KAISER, Defendants-Appellants, and REYNOLDS NEJO; TERRY PHILLIPS; TONY MCDANIEL; ARIZONA DEPARTMENT OF GAMING; GILA COUNTY; GILA COUNTY SHERIFF'S DEPARTMENT; TRAVIS BAXLEY, Sgt.; DENNIS NEWMAN, Deputy, Defendants
Attorney:Glenn M. Feldman (argued) and D. Samuel Coffman, Dickinson Wright/Mariscal Weeks, Phoenix, Arizona, for Defendants-Appellants. Robert A. Nersesian (argued) and Thea M. Sankiewicz, Nersesian & Sankiewicz, Las Vegas, Nevada, for Plaintiffs-Appellees.
Judge Panel:Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges, and Elaine E. Bucklo, Senior District Judge.[*] Opinion by Judge Berzon.
Case Date:June 30, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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791 F.3d 1104 (9th Cir. 2015)

RAHNE PISTOR; GEORGE ABEL; JACOB WHITHERSPOON, Plaintiffs-Appellees,

v.

CARLOS GARCIA; FARRELL HOOSAVA; LISA KAISER, Defendants-Appellants, and REYNOLDS NEJO; TERRY PHILLIPS; TONY MCDANIEL; ARIZONA DEPARTMENT OF GAMING; GILA COUNTY; GILA COUNTY SHERIFF'S DEPARTMENT; TRAVIS BAXLEY, Sgt.; DENNIS NEWMAN, Deputy, Defendants

No. 12-17095

United States Court of Appeals, Ninth Circuit

June 30, 2015

Argued and Submitted, San Francisco, California: November 20, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Arizona. D.C. No. 2:12-cv-00786-FJM. Frederick J. Martone, Senior District Judge, Presiding.

SUMMARY[**]

Civil Rights

The panel affirmed the district court's denial of a motion to dismiss an action brought against tribal officers who were sued in their individual capacities for an assertedly unconstitutional detention and seizure of property that took place at a casino owned and operated by a tribe on tribal land. The district court held that even if the tribal defendants were entitled to tribal immunity, it was inappropriate to dismiss the claims against the defendants for lack of subject matter jurisdiction. The district court went on to hold, however, that if the tribal defendants' Fed.R.Civ.P. 12(b)(1) motion to dismiss was construed as a Rule 12(b)(6) motion to dismiss, the court would conclude that plaintiffs had sufficiently stated a 42 U.S.C. § 1983 claim against the tribal defendants in their individual capacities. The district court therefore denied defendants' motion to dismiss the action.

The panel held that sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the panel held that the district court erred in concluding that it would be inappropriate to dismiss the claims against the defendants at the 12(b)(1) stage. The panel nevertheless affirmed the district court's denial of defendants' motion to dismiss the action. The panel held that the tribal defendants were not entitled to tribal sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe.

The panel held that it did not have jurisdiction to decide whether plaintiffs successfully stated a claim against the defendants under § 1983. The panel held that whether the tribal defendants were acting under state or tribal law did not matter for purposes of the tribal sovereign immunity analysis, although it will matter for purposes of deciding whether plaintiffs can succeed in their § 1983 claim.

Glenn M. Feldman (argued) and D. Samuel Coffman, Dickinson Wright/Mariscal Weeks, Phoenix, Arizona, for Defendants-Appellants.

Robert A. Nersesian (argued) and Thea M. Sankiewicz, Nersesian & Sankiewicz, Las Vegas, Nevada, for Plaintiffs-Appellees.

Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges, and Elaine E. Bucklo, Senior District Judge.[*] Opinion by Judge Berzon.

OPINION

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BERZON, Circuit Judge:

Our question is whether tribal officers may assert tribal sovereign immunity when sued in their individual capacities for an assertedly unconstitutional detention and seizure of property. The seizure and detention at issue took place at a casino owned and operated by a tribe on tribal land.

We conclude that the tribal defendants are not entitled to sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe. Maxwell v. County of San Diego, 708 F.3d 1075, 1089 (9th Cir. 2013), makes our determination pretty much foreordained. But the position of the litigants in this case, and the reluctance of the district court to decide the issue on the pleadings, suggest continuing confusion regarding the application of Maxwell, and also regarding the intersection of tribal sovereign immunity doctrine with § 1983 principles in tort actions brought against tribal officials. We therefore further clarify our previous rulings on these issues.

I.

Plaintiffs Rahne Pistor, George Abel, and Jacob Whitherspoon (" the gamblers" ) are " advantage gamblers" who " use[] legal techniques . . . to win at casino . . . games." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1131 (9th Cir. 2012). They achieve this success by " limit[ing] their play to games with a statistical advantage favoring the player." (Most casino games favor the house.) Applying advantage gambling techniques, the gamblers won a significant amount of money on video blackjack machines at the Mazatzal Hotel and Casino (" Mazatzal" ) in Payson, Arizona. Mazatzal is owned and operated by the Tonto Apache Tribe (" the Tribe" ) on tribal land.

In their original complaint, the gamblers alleged the following: on October 25, 2011, Carlos Garcia, a Chief of the Tonto Apache Police Department, Farrell Hoosava, the General Manager of Mazatzal, and Lisa Kaiser, a Tribal Gaming Office Inspector, (" the tribal defendants" ) took them from the gambling floor. The gamblers were then handcuffed and led to interrogation rooms inside Mazatzal, where they were questioned. While they were detained, the tribal defendants took significant sums of

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cash and other personal property from them, none of which has been returned. Before the day of the seizure, " [t]he Gila County Sheriff's Office . .., the Arizona Department of Gaming . .., [and the tribal defendants] met or discussed the seizure of the plaintiffs." This scheme was concocted " with the goal of punishing plaintiffs for winning so much at . . . Mazatzal, and the hope of stealing back some of the funds that the plaintiffs had legitimately won." All of these actions were taken " under color of state law," " in concert with the state defendants" from the Gila County Sheriff's Office and Arizona Department of Gaming. The gamblers sought damages from the tribal defendants (and also from non-tribal defendants) under 42 U.S.C. § 1983 for violations of their Fourth and Fourteenth Amendment rights, and under state tort law for battery, false imprisonment, conversion, defamation, trespass to chattels, and negligence.

The tribal defendants moved the district court for an order " dismissing all claims against them pursuant to Rule[] 12(b)(1)." They asserted that the district court " lack[ed] jurisdiction over the subject matter of the claims asserted against the Tribal Defendants . . . based on well-recognized principles of tribal sovereign immunity." Because " [e]ach of the Tribal Defendants is an employee of the Tonto Apache Tribe or the Tribe's wholly-owned gaming facility, . . . Mazatzal," the tribal defendants maintained, they possessed " the same sovereign immunity as the Tribe itself, which bars unconsented suits against these defendants." In support of their motion to dismiss, each of the tribal defendants averred that he or she was " employed by the Tonto Apache Tribe," 1 and that all the actions he or she took during the gamblers' seizure and detention were done " in furtherance of . . . official duties" and within the scope of official authority.

The tribal defendants also submitted a declaration by Hubert Nanty, Executive Director of the Tonto Apache Tribal Gaming Office, attaching a copy of the Tribe's official Tribal Gaming Ordinance. Nanty's declaration explained that the Ordinance, approved by the National Indian Gaming Commission under the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq., confers regulatory authority on the Tribal Gaming Commission, a five-member body appointed by the Tribal Council to direct the activities of the Tribal Gaming Office. The Commission, Nanty explained, is empowered by the Tribal Gaming Ordinance to, among other things, "...

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