A & A Concrete, Inc. v. White Mountain Apache Tribe, 80-5272
| Decision Date | 13 May 1982 |
| Docket Number | No. 80-5272,80-5272 |
| Citation | 676 F.2d 1330 |
| Parties | A & A CONCRETE, INC., et al., Plaintiffs-Appellants, v. The WHITE MOUNTAIN APACHE TRIBE, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John P. Otto, Phoenix, Ariz., argued, for plaintiffs-appellants; Philip C. Gerard Johnson & Gerard, P. C., Phoenix, Ariz., on brief.
Stefani Gabroy, Tucson, Ariz., argued, for defendants-appellees; Michael J. Brown, Tucson, Ariz., on brief.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY and FERGUSON, Circuit Judges, and KELLAM, * District Judge.
Appeal from a judgment dismissing the amended complaint and the action under Rule 12(b) F.R.Civ.P. for "want of jurisdiction." The first two counts of the complaint, which is in five counts, attempt to state claims under 42 U.S.C. § 1983 (Count I) and § 1985(2) and (3) (Count II). The other three counts attempt to state pendent claims under state law. We reverse as to Count I and affirm as to Count II. We express no opinion about the three pendent claims, leaving it to the district court to decide whether to reinstate any of them.
The amended complaint, in Count III, states that the plaintiffs Kayle and Sandy Adams, husband and wife, and their corporation A & A Concrete, Inc., are engaged in the manufacture and selling of concrete and cement. They obtain their cement from Phoenix Cement Company which is the only supplier in the state of Arizona large enough to supply their needs. The defendant Charles Patterson is a competitor of the plaintiffs.
Certain defendants, whom we call, collectively, the Apache defendants, are identified in the caption of the amended complaint. These are The White Mountain Apache Tribe, doing business as White Mountain Apache Development Enterprises, Neil Hall and his wife, Ronnie Lupe and his wife, Ramus Albert and Harley Janway, board members of the Enterprises, White Mountain Apache Housing Authority, a corporation, Lela MacCose, Chairperson of the Authority, and her husband, Berlinda Bones, Executive Director of the Authority, and her husband, Leander Massey, Contracting Officer of the Authority, and his wife, Anna L. Goseyun, Tribal Court Judge, and Becky Ethebah, Clerk of the Tribal Court.
With the foregoing information in hand, we summarize the allegations of Count I. Defendant Marlin Gillespie was acting in his capacity as sheriff of Navajo County, Arizona, and defendants Gene Russell, Russell Lupe, and Charles Lane were acting in their capacities as deputy sheriffs of the county. The deputies "acted pursuant to an agreement and an arrangement with Tribal officials and officers and the defendant Patterson whereby off-reservation invalid service of tribal court process and writs of garnishment are served jointly and in concert by tribal officers and members of the Navajo sheriff's office, on non-Indian, off-reservation parties to purported actions in the tribal court."
The gist of Count I is that beginning on February 28, 1979, and continuing to the time when the complaint was filed, all of the defendants except the Tribe entered into a conspiracy with the defendants Patterson to injure the plaintiffs in their business activities and drive them out of business and to deprive the plaintiffs of their right to due process of law and to the equal protection of the law and their privileges and immunities as citizens of the United States. Pursuant to the conspiracy, the defendants caused a complaint to be filed in the tribal court, alleging that the plaintiffs were indebted to the White Mountain Apache Development Enterprise in the sum of $250,000. The allegations of this complaint were false and malicious.
In filing the complaint in the tribal court the defendants knew that that court did not have jurisdiction over the plaintiffs in this action or subject matter jurisdiction under the claim stated in the tribal court complaint. The defendants, the sheriff and his deputies, served or caused to be served the summons and complaint in the tribal action on the plaintiffs in this action and also served a writ of garnishment in the tribal court action on the Oakland Construction Company, which had a contract with the plaintiffs. As a result, that company has refused to pay the plaintiffs $17,270 that it owes them and has terminated its contract with them to their damage in the sum of $337,500. The defendants have caused judgment in the tribal court action to be entered against the plaintiffs in this case in the sum of $250,000.
Count II of the complaint repeats the allegations of Count I and then alleges that what was done was pursuant to a conspiracy by the defendants, including the defendants Patterson, the purpose of which was hindering, obstructing, and defeating the due course of justice in the state of Arizona and to deprive the plaintiffs of due process and the equal protection of the law in violation of 42 U.S.C. § 1985(2) and (3). The plaintiffs allege that they are members of a class "against which the animus of the conspiracy is directed, to wit: non-Indian Defendants sued in the tribal court all of whom are being denied due process of law and the equal protection of the laws" by virtue of "both racial and class-based invidious discrimination against all non-Indian Defendants who are sought to be proceeded against in the White Mountain Apache Tribal Court."
Section 1983 of 42 U.S.Code is applicable only where the person sued acts "under color of any statute, ordinance, regulation, custom or usage of any state or territory or the District of Columbia." The White Mountain Apache Tribe is certainly not a state or territory or the District of Columbia! The claim, however, is that the sheriff's deputies who joined the alleged conspiracy and served the papers complained of were acting under color of Arizona law.
If all that was involved were an understanding between...
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