Pistor v. Garcia

Decision Date30 June 2015
Docket NumberNo. 12–17095.,12–17095.
PartiesRahne 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.
CourtU.S. Court of Appeals — Ninth Circuit

Glenn M. Feldman (argued) and D. Samuel Coffman, Dickinson Wright/Mariscal Weeks, Phoenix, AZ, for DefendantsAppellants.

Robert A. Nersesian (argued) and Thea M. Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for PlaintiffsAppellees.

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

Before: MARSHA S. BERZON and JOHNNIE B. RAWLINSON, Circuit Judges, and ELAINE E. BUCKLO, Senior District Judge.*

OPINION

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 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, [i]nvestigate any suspicion of wrongdoing associated with any gaming activities,” “detain persons who may be involved in illegal acts in or around the gaming facility for the purpose of notifying appropriate law enforcement authorities,” and [p]rovide referrals and information to the appropriate law enforcement officials when such information indicates a violation of Tribal, Federal, or State [law].” “All of the actions that Carlos Garcia, Farrell Hoosava and Lisa Kaiser took with respect to the plaintiffs on October 25, 2011[,] were done solely in their capacities as tribal officials ... [and solely] within the scope of their authorities under the Tonto Apache Tribal Gaming Ordinance,” not under any state authority, Nanty asserted. The tribal defendants also included a supplemental declaration by Garcia, which asserted that his investigation of the gamblers was ordered by Nanty.

The gamblers opposed the tribal defendants' motion, repeating their allegations of conspiracy between the tribal defendants and state defendants to seize the gamblers and steal their property.

The district court denied the defendants' motion to dismiss. It reasoned that [e]ven if [the tribal defendants] are entitled to tribal immunity from suit ... it would be inappropriate ... to dismiss the claims against them for lack of [subject matter] jurisdiction,” because the district court has “power generally to hear these kinds of claims,” i.e., those relying on 28 U.S.C. § 1331 and § 1367 for jurisdiction. Tribal sovereign immunity is essentially “the assertion of an affirmative defense,” the court maintained, and so is a “separate question” from whether the court “ha[s] the power to hear a kind of claim.”

The district court went on to hold, in the alternative, that if the tribal defendants' motion were construed as a Rule 12(b)(6) motion to dismiss, [t]aking the[ ] [gamblers'] allegations as true,” as required under that Rule, the court “would conclude that the plaintiffs have sufficiently stated a § 1983 claim against [the tribal defendants] in their individual capacities.” This was so, the court's order on the dismissal motion stated, because the tribal [d]efendants are not entitled to tribal immunity ... if they are sued under § 1983 in their individual capacities for actions that they took under color of state law,” rather than in their official capacities.

II.

“Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725 (9th Cir.2008). Tribal sovereign immunity “also protects tribal employees in certain circumstances,” Maxwell, 708 F.3d at 1086, namely, where a tribe's officials are sued in their official capacities. “A suit against ... [a tribe's] officials in their official capacities is a suit against the tribe [that] is barred by tribal sovereign immunity.” Miller v. Wright, 705 F.3d 919, 927–28 (9th Cir.2013), cert. denied, ––– U.S. ––––, 133 S.Ct. 2829, 186 L.Ed.2d 885 (2013) (internal quotation marks omitted).

A.

“Issues of tribal sovereign immunity are reviewed de novo.” Burlington N. & Santa Fe Ry. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir.2007). Although generally [a] district court's denial of a motion to dismiss is not a final decision within the meaning of 28 U.S.C. § 1291, ... an adverse decision ... denying tribal sovereign immunity as a complete defense to proceeding with the litigation” is considered a final decision for purposes of § 1291 appellate jurisdiction. Id. at 1089. That is because, [a]s with absolute, qualified, and Eleventh Amendment immunity, tribal sovereign immunity ‘is an immunity from suit rather than a mere defense to liability; and ... it is effectively lost if a case is erroneously permitted to go to trial.’ Id. at 1090 (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143–44, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ) (alteration in original) (emphasis omitted).

[T]he issue of tribal sovereign immunity is [quasi-]jurisdictional.” Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989) ; see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1015–16 (9th Cir.2007) ; Evans v. McKay, 869 F.2d 1341, 1345–46 (9th Cir.1989). Norma...

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