Carey v. Nevada Gaming Control Bd.

• Decision Date: 04 February 2002
• Docket Number: No. 00-16649.,00-16649.
• Citation: 279 F.3d 873
• Parties: James CAREY, Plaintiff-Appellant, v. NEVADA GAMING CONTROL BOARD; Gregory Spendlove; State of Nevada, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.3d 873

James CAREY, Plaintiff-Appellant, v. NEVADA GAMING CONTROL BOARD; Gregory Spendlove; State of Nevada, Defendants-Appellees.

No. 00-16649.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2001.

Filed February 4, 2002.

COPYRIGHT MATERIAL OMITTED

Robert A. Nersesian, Nersesian & Sankiewicz, Las Vegas, Nevada, for the plaintiff-appellant.

Kimberly M. Rushton, Chief Deputy Attorney General, Las Vegas, Nevada, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding.

Before B. FLETCHER, BOOCHEVER, and FISHER, Circuit Judges.

OPINION

BOOCHEVER, Circuit Judge.

Plaintiff James Carey brought this civil rights action against the State of Nevada, the Nevada Gaming Control Board, and Agent Gregory Spendlove under 42 U.S.C. § 1983 and state law. He now appeals the district court's grant of summary judgment to all defendants. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

BACKGROUND

On June 19 and June 20, 1996, plaintiff James Carey, a Nevada resident, and his friend, Ed Amsberry, were playing "21" at the Ramada Hotel and Casino in Laughlin, Nevada. Ramada employees suspected the two men of cheating and observed them closely. Carey and Amsberry employed a number of legal gambling strategies, such as "card counting," "shuffle tracking," and giving one another hand signals. Ramada employees also suspected that Carey had a computer or other counting device in his shoe based on the positioning of his foot under the table, the way his shoes fit his feet, and the employees' observation that Carey walked favoring his right foot. Use of a counting device is illegal.

In the early morning hours of June 20, Ramada personnel called Agent Gregory Spendlove of the Nevada Gaming Control Board to investigate whether Carey and Amsberry were cheating. Agent Spendlove watched the two patrons on closed-circuit television and reviewed videotapes of their play from the previous day, but was unable to determine at that time that any cheating had occurred. Spendlove decided further investigation was required. Carey and Amsberry left the casino, and Agent Spendlove instructed Ramada personnel to contact him if the two returned so he could further observe them.

Later that day, Carey and Amsberry returned. Ramada security detained them in the security office and called Agent Spendlove. Upon arriving, Agent Spendlove identified himself to Carey and Amsberry, indicated he was investigating possible violations of the gaming laws, and read them their Miranda rights. Spendlove also "Terry frisked" both detainees. Agent Spendlove then asked Carey and Amsberry to identify themselves. Carey refused. Agent Spendlove instructed Carey that he could identify himself either verbally or by showing identification. Carey again refused and asked to speak to a lawyer. Spendlove informed Carey that he could be arrested for refusing to identify himself, and gave him at least three opportunities to do so.

In the meantime, Spendlove instructed both detainees to remove their shoes and socks. Spendlove searched both men's shoes, removing the insoles of Carey's shoes in the process. With Amsberry's consent, Spendlove and Ramada security searched the hotel room that Carey and Amsberry were sharing. After detaining Carey and Amsberry for between one and one and a half hours, Spendlove determined there was no probable cause to arrest either of them for violating the gaming laws. However, based on Carey's refusal to identify himself, Spendlove arrested Carey under the authority of two Nevada statutes which require individuals to provide information to peace officers under certain circumstances. Carey spent the night in jail. He was released the next morning, and no charges were brought against him.

Carey sued Agent Spendlove, the State of Nevada (the "State") and the Nevada Gaming Control Board (the "Board") under 42 U.S.C. § 1983, claiming that Spendlove violated his Fourth, Fifth, and Fourteenth Amendment rights by searching Carey's shoes without probable cause and by arresting Carey for refusing to identify himself. Carey also brought claims under state law for false imprisonment and battery. The district court granted summary judgment against Carey, finding that the State and the Board were immune under the Eleventh Amendment and that Spendlove was entitled to qualified immunity. Carey appeals.¹

ANALYSIS

We review de novo a district court's grant of summary judgment based on Eleventh Amendment or qualified immunity. See Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999); Knox v. Southwest Airlines, 124 F.3d 1103, 1105 (9th Cir. 1997).

A. Eleventh Amendment Immunity of the State and the Board

Carey argues that the State and the Board are not immune from the present action because Nevada waived its sovereign immunity by statute.² Although Nevada Revised Statute § 41.031 does indeed waive sovereign immunity under some circumstances, it specifically preserves Eleventh Amendment³ immunity. Citing Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), Carey argues that Nevada's immunity from suit by its own residents derives from common-law sovereign immunity, not from the Eleventh Amendment. Carey thus contends that Nevada, in waiving "sovereign immunity," has consented to be sued in federal court by its own residents.

Although Carey makes an interesting argument, we are not free to disregard binding precedent. Ninth Circuit cases interpreting § 41.031 have unanimously concluded that Nevada's retention of "Eleventh Amendment immunity" bars all actions against Nevada in federal court, including those brought by Nevada residents. See Romano, 169 F.3d at 1185; Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir.1991); O'Connor v. Nevada, 686 F.2d 749, 750 (9th Cir.1982) (per curiam); Productions & Leasing v. Hotel Conquistador Inc., 573 F.Supp. 717, 720 (D.Nev.1982), aff'd, 709 F.2d 21, 21-22 (9th Cir.1983). Federal courts have assumed that Nevada's waiver of sovereign immunity "only gives Nevada's consent to suits in its own courts," Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979); and indeed, as far as we are aware, every action in which an individual successfully sued the State of Nevada under § 41.031 was litigated in a Nevada state court. We therefore conclude that the district court correctly granted summary judgment to the State and the Board, a state agency, see Romano, 169 F.3d at 1185, based on Eleventh Amendment immunity.

B. Immunity of Agent Spendlove

We must next decide whether the district court correctly granted summary judgment to Agent Spendlove on Carey's state and federal claims.

1. State law claims

Carey has sued Agent Spendlove under state law for false imprisonment and battery. Although Nevada has waived sovereign immunity under some circumstances, it has retained immunity for state officials exercising discretion. See Nev. Rev.Stat. §§ 41.031, 41.032; Ortega v. Reyna, 114 Nev. 55, 953 P.2d 18, 23 (1998). State officials can be sued for torts they commit while performing non-discretionary or "ministerial" acts, but not for performing discretionary acts. See Foster v. Washoe County., 114 Nev. 936, 964 P.2d 788, 791-92 (1998). A discretionary act "requires the exercise of personal deliberation, decision and judgment," while a ministerial act is "performed by an individual in a prescribed legal manner ... without regard to, or the exercise of, the judgment of the individual" and which "envisions direct adherence to a governing rule or standard with compulsory result." Id. at 792 (internal quotes and modifications omitted). "The key question, then, is which kind of acts [Agent Spendlove was] performing" when the alleged torts occurred. Id.

According to Carey's complaint, the false imprisonment occurred when Spendlove incarcerated Carey without probable cause and the battery occurred when Spendlove "handcuffed and chained [Carey] against his will in order to detain him." Thus, as the district court observed, "the acts that form the basis for Carey's battery and false imprisonment claims stem from Spendlove's decision to arrest Carey for failing to identify himself."⁴

The Nevada Supreme Court held in Ortega v. Reyna, 953 P.2d at 18, that a state officer's warrantless arrest of an individual was a discretionary act for which the officer was immune. In that case, a state trooper arrested a motorist because the trooper believed the motorist was refusing to sign a traffic citation. The Nevada Supreme Court held that the arrest was discretionary because "the trooper used his judgment in stopping appellant, in concluding that appellant refused to sign the traffic citation, and in taking appellant to jail after arresting her." Id. at 23.

The present case is legally indistinguishable from Ortega. The district court found that "the course of action taken by Spendlove in arresting Carey was not a prescribed act; rather it was an act resulting from the exercise of his own discretion." Carey offers no evidence to the contrary, and we find no facts in the record that would suggest Agent Spendlove was performing a ministerial act when he arrested Carey. We therefore conclude that Spendlove's arrest of Carey was a discretionary act for which Spendlove is immune, and that the district court correctly granted summary judgment to Agent Spendlove on both of Carey's state law claims.

2. Section 1983 claim

Carey has also sued Agent Spendlove under 42 U.S.C. § 1983, which provides a cause of action for persons deprived of federal rights under color of state law.⁵ We assume Carey is suing Agent Spendlove in both his official capacity and his personal capacity. To the extent Carey is suing Spendlove in his official capacity, Carey's claim fails because Carey's complaint requests only damages, which are not available against state...