Marshall v. Sawyer

Decision Date07 March 1962
Docket NumberNo. 17322.,17322.
Citation301 F.2d 639
PartiesJohn MARSHALL, Appellant, v. Grant SAWYER, as Governor of the State of Nevada, et al., Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


William B. Beirne, A. L. Wirin, Fred Okrand, Los Angeles, Cal., W. Albert Stewart, Jr., Las Vegas, Nev., for appellant.

Roger D. Foley, Atty. Gen. of Nevada, Bruce R. Thompson, Michael J. Wendell, Sp. Deputy Attys. Gen., for appellees.

Before POPE, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

John Marshall, having been assertedly ousted from Desert Inn Hotel in Las Vegas, Nevada, brought this action for damages and injunctive relief, invoking the Civil Rights Act, 28 U.S.C.A. § 1343 (1), (3) and (4), and 42 U.S.C.A. §§ 1983 and 1985(3). Named as defendants were the Governor, Gaming Control Board and Gaming Commission of Nevada, the members of the board and commission, D. I. Operating Co., a Nevada corporation which operates the Desert Inn Hotel and five employees of that company. The action was dismissed on the ground that the federal court should abstain and remit plaintiff to his state court remedies. Plaintiff appeals.

It is alleged in the complaint, among other things, that the defendant state agencies and officials entered into an agreement and adopted a policy to discriminate against and to bar plaintiff from registering or obtaining food service, sitting in the lounge or foyer, or being in the casino or on the premises of any hotel in Nevada licensed to operate a gambling casino, and to bar him from the state of Nevada as a person designated by them as "undesirable." It was part of this agreement and policy, plaintiff alleged, that the described objectives would be accomplished by coercion, intimidation and inducement by the state defendants, taking the form of threats against hotels in Nevada that they would lose their casino licenses if appellant were permitted in these hotels.

In order to effectuate this agreement and policy, plaintiff alleged, defendants engaged in the following acts:

1. The board and commission and their members compiled, promulgated, published and issued an 8" x 10" booklet bound in black, commonly designated as the "black book," containing the names and pictures of persons, including plaintiff, designated as and deemed, "undesirable" by those defendants, all of this being done without notice or hearing to the persons so designated, including plaintiff;

2. The board and commission and their members on or about March 29, 1960, distributed copies of the black book to hotel operators in the state of Nevada accompanied by a letter over the signature of defendant Abbaticchio, chairman of defendant board, reading in part as follows:

"The attached booklet which will be revised and expanded periodically, contains descriptive data with photographs concerning 11 persons (here they are listed, including appellant).

"In order to avoid the possibility of license revocation for `unsuitable manner of operation' your immediate cooperation is requested in preventing the presence in any licensed establishment of all `persons of notorious or unsavory reputation' including the above individuals as well as those who subsequently may be added to this list."

3. The board and commission and their members, personally or through their representatives, orally informed the recipients of the black book and letter that unless the recipients acceded to the "request" of those defendants, as outlined in the letter, the recipients would lose their licenses;

4. On the evening of October 28, 1960, while plaintiff was sitting in the lounge of the Desert Inn Hotel, not committing or having committed any public offense, Abbaticchio and other representatives of the board and commission, for the purpose of effectuating the described agreement and policy, requested and induced employees of the hotel, defendants herein, to oust plaintiff from the hotel;

5. Acceding to the above-described request and inducement, the five defendants who are employees of the defendant hotel operating company, ousted plaintiff from the hotel premises under threat of physical force, this being accomplished in the presence of a large number of persons;

6. In order to harass and intimidate hotel operators into ousting plaintiff from the Desert Inn Hotel and other hotels in Las Vegas, the board and commission and members thereof, led by Abbaticchio, on the evening of October 28, 1960, and other evenings, confiscated cards and dice in the casinos of various hotels in Las Vegas, including the Desert Inn Hotel, while games were in progress and in full view of public patrons such action being extremely detrimental to the gambling business of these hotels, as the state defendants well know and intended;

7. On or about October 29, 1960, Abbaticchio, having in mind the ouster of plaintiff from the Desert Inn Hotel on the previous evening, publicly stated:

"There has been some failure of certain Strip operators to abide by an agreement with the control board not to entertain or provide or furnish facilities or cater to those people we consider undesirable and detrimental to the gaming industry because of their association with the underworld.

* * * * * *

"We are attempting to get them (the reneging Strip operators) to cooperate with the control board."

8. On or about November 2, 1960, defendant Sawyer, Governor of Nevada, having in mind what had occurred at the Desert Inn Hotel on the evening of October 28, 1960, publicly stated:

"I agree with any measures necessary to keep the hoodlums out of Nevada. The operators have a great responsibility to cooperate.

"We might as well serve notice on underworld characters right now they are not welcome in Nevada and we aren't going to have them here."

Plaintiff sought damages in the amount of $100 from each of the state defendants and in the amount of $150,000 from all of the remaining defendants. The injunction which he sought was one which would restrain and enjoin the state defendants, their agents, employees or anyone acting in concert with them or in their behalf:

"from giving effect to said policy and action of keeping plaintiff out of the State of, and hotels in, Nevada through said Black Book or said letter of March 29, 1960, and from causing, coercing or inducing the operators or employees of hotels in Nevada, by threat of cancellation of license or otherwise, to bar or eject plaintiff from their premises, or to refuse to give service or afford accommodations to plaintiff on the same basis as any other citizen;"

Filed with the complaint was a motion for a preliminary injunction seeking temporary relief of the same kind as that sought in the prayer for a permanent injunction. Defendant D. I. Operating Co., and the five individual defendants who are employees of that company, joined in an answer denying most of the essential allegations of the complaint. The state defendants filed no answer but joined in a motion under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S. C.A., to dismiss the complaint, five grounds being urged, namely: (1) the federal courts should abstain, (2) no grounds for equitable relief were alleged, (3) the complaint did not state a claim upon which relief can be granted, (4) the complaint shows on its face that each such defendant is protected by the defense of official immunity, and (5) the federal district court lacks jurisdiction.

Accompanying the motion to dismiss was the affidavit of defendant Abbaticchio, chairman of defendant board, in which facts were alleged concerning the preparation and issuance of the so-called black book and accompanying letter, and the policies and enforcement methods of that state agency with reference to the regulation of gambling in Nevada. While this affidavit presented matters outside the pleading, it was apparently regarded by the court as directed only to the motion for a temporary injunction, and such new matters were excluded from consideration in passing on the motion to dismiss. The court therefore did not treat the motion as one for a summary judgment, as it would have been obliged to do had the new matters not been excluded from consideration. See Rule 12(b) supra.

As before noted, the motion to dismiss was granted on the sole ground that the district court should abstain. While the non-state defendants had not moved to dismiss the complaint the court also dismissed the complaint as to them. Having held abstention appropriate as to the state defendants, the court determined that the alleged actions of the state and non-state defendants were so intertwined that it would be "ludicrous" to retain the case as to some of the defendants and not as to the others. The non-state defendants have not appeared as appellees in this court.

At the outset we must consider, on our own motion, whether the appeal must be dismissed because not taken from an appealable order. An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Javor v. Brown, 9 Cir., 295 F.2d 60.

The special circumstances which will permit this court to regard such an order as final and appealable must be such as to make it clear that the court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make, thereby entitling plaintiff to assume that he had no choice but to stand on his complaint. Asher v. Ruppa, 7 Cir., 173 F.2d 10. See also Gardner v. J. J. Newberry Co., Inc., 9 Cir., 239 F.2d 178; Williams v. Peters, 9 Cir., 233 F.2d 618, 16 Alaska 303.

We think such circumstances are present in this case. The order dismissing the complaint herein is not based upon the ground that appellant has failed to state a claim but on the ground that, whether or not a claim has been stated, the federal court should abstain. In view of this ruling there was no way in which plain...

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