Thomas v. Bible

• Decision Date: 10 August 1988
• Docket Number: No. CV S-87-526 RDF.,CV S-87-526 RDF.
• Citation: 694 F. Supp. 750
• Parties: Carl Wesley THOMAS, Plaintiff, v. Paul A. BIBLE; Jerry Lockhart; Barton Jacka; the present members of the Nevada Gaming Commission in their official capacity, being John O'Reilly, Robert Peccole, Robert Lewis, Ken Gragson, Betty Vogler; and the present members of the Nevada Gaming Control Board in their official capacity, being Jerry Cunningham, Michael Rumbolz, and Dennis Amerine, Defendants.
• Court: U.S. District Court — District of Nevada

694 F. Supp. 750

Carl Wesley THOMAS, Plaintiff, v. Paul A. BIBLE; Jerry Lockhart; Barton Jacka; the present members of the Nevada Gaming Commission in their official capacity, being John O'Reilly, Robert Peccole, Robert Lewis, Ken Gragson, Betty Vogler; and the present members of the Nevada Gaming Control Board in their official capacity, being Jerry Cunningham, Michael Rumbolz, and Dennis Amerine, Defendants.

No. CV S-87-526 RDF.

United States District Court, D. Nevada.

August 10, 1988.

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Wright, Shinehouse & Stewart by Richard Wright and Bruce Judd, Las Vegas, Nev., for plaintiff.

Brian McKay, Atty. Gen. by Gloria Stendardi, Deputy Atty. Gen., Carson City, Nev., for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROGER D. FOLEY, Senior District Judge.

INTRODUCTION:

The state of Nevada has enacted the Nevada Gaming Control Act ("Act"); a comprehensive regulatory scheme that provides for the strict regulation of its gaming industry. Nev.Rev.Stat. § 463.010 et seq. (1987). The express public policy of the state concerning licensed gaming provides, in pertinent part, that the continued growth and success of licensed gaming is dependent upon public confidence and trust; that licensed gaming is conducted honestly and that licensed gaming is free from criminal and corruptive elements. Public confidence and trust can only be maintained by strict regulation of persons, locations, practices, associations and activities related to the operation of licensed gaming establishments. Nev.Rev.Stat. § 463.0129(1) (1987).¹

The Nevada Legislature has specifically declared that the exclusion of certain persons from licensed gaming establishments which conduct pari-mutuel wagering or operate any race book, sports pool, or games, other than slot machines only, is necessary to effectuate the policies of the Act and to maintain effectively the regulation of licensed gaming. Nev.Rev.Stat. § 463.151(1) (1987). Accordingly, the Legislature empowered the Nevada Gaming Commission ("Commission"), to provide for an Exclusion List ("List"): a list of persons who are excluded from Nevada's casinos. Nev.Rev.Stat. §§ 463.151-.155 (1987).

The Nevada Gaming Control Board ("Board"), is a three-member, full-time administrative agency that serves as the investigative and prosecutorial body and nominates candidates for the List. Nev. Rev.Stat. §§ 463.030-.110 (1987). The Commission is a five-member, part-time lay administrative agency that functions in a quasi-judicial capacity, acting as judge and making the final decision whether a candidate, nominated by the Board, should be included on the List. Nev.Rev.Stat. §§ 463.022-.029 (1987); see Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 527 n. 1 (9th Cir.1986).²

BACKGROUND:

Prior to 1979, plaintiff Carl Wesley Thomas ("Thomas"), held gaming licenses for and possessed an ownership interest in two gaming properties located in Las Vegas, Nevada: Bingo Palace Casino, Inc. and Slots-A-Fun. In 1979, transcripts of certain FBI wiretaps concerning organized crime skimming operations in Las Vegas were made public and became known as the "Kansas City tapes." In one of the tapes, the "Marlo" tape,³ plaintiff was overheard instructing several organized crime figures on recommended ways of skimming from Nevada's casinos. see United States v. DeLuna, 763 F.2d 897, 915 (8th Cir.) cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985).

On June 25, 1979, upon disclosure of the "Marlo" tape, the Board moved to revoke Thomas' gaming licenses and on June 29, 1979, the Board initiated the process for nominating Thomas as a candidate for the List.⁴ On June 29, 1979, the Commission received the Board's order to place Thomas' name on the List. On July 27, 1979, Thomas filed a request for a hearing on the exclusionary matter which was set by the Commission for September 7, 1979.

On August 23, 1979, a hearing was held before the Commission regarding Thomas' gaming licenses. The disciplinary action was settled when the Commission accepted the stipulation of the Board and plaintiff to a revocation of his licenses and a payment of a fine. On August 27, 1979, the Board requested that the exclusionary hearing be continued because, at that time, the transcripts of the federal wiretaps, the "Kansas City tapes," were unavailable due to a motion to suppress in the Kansas City federal criminal proceeding.

On August 29, 1979, because of the unavailability of the "Kansas City tapes," the Board withdrew the June 29, 1979 order nominating Thomas for the List. The withdrawal was without prejudice. The Commission vacated the hearing set for September 7, 1979.

Subsequently, on October 10, 1983, Thomas was convicted on ten counts of skimming-related felonies involving the Tropicana Hotel and Casino. United States v. DeLuna, et al., CR-81-00107 01/11 CR-W-8 (U.S.Dist.Ct.W.Dist. of Mo.) (the "Tropicana" case as reflected in the "Marlo" tape).⁵ see United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). On September 30, 1983, the federal government also indicted plaintiff on other skimming charges involving the Stardust Hotel and Casino. United States v. DeLuna, et al., CR-83-00124 01/15 CR-W-8 (U.S.Dist.Ct.W.Dist. of Mo.) (the "Argent case"). see United States v. Thomas, 759 F.2d 659 (8th Cir.1985).

Ultimately, Thomas was immunized and testified in the Argent case. After he testified, his original fifteen year prison sentence in the Tropicana case was reduced to two years and he was then soon paroled.

In 1985, the Board then resumed the process of nominating plaintiff for the List based upon his Tropicana case conviction and his skimming career as disclosed in his immunized testimony in the Argent case. On January 22, 1987, at the conclusion of the second hearing before the Commission, the Commission concluded that plaintiff's presence in a gaming establishment would pose a threat to the interests of Nevada and to licensed gaming and voted unanimously to place Thomas on the List. Nev. Rev.Stat. § 463.151 (1987).

On February 19, 1987, the Commission filed and served the final written order of exclusion containing findings of fact and conclusions of law and stayed the implementation of its exclusion order pending plaintiff's right to seek state judicial review pursuant to NRS 463.312. Later, on June 18, 1987, the Commission extended the stay so as to allow plaintiff to file this action in federal court.

PROCEDURAL HISTORY:

On July 10, 1987, Plaintiff filed a complaint against former members of the Commission, Paul A. Bible ("Bible"), and Jerry Lockhart, and former member of the Board, Barton Jacka ("Jacka"), and the present members of the Commission and the Board in their official capacities ("defendants").

The court has original jurisdiction over the matter based on 28 U.S.C. § 1343. see Louis v. Sup. Ct. of Nevada, 490 F.Supp. 1174 (D.Nev.1980).⁶ Plaintiff's complaint includes the following four causes of action:

1) 42 U.S.C. § 1983 to redress alleged "deprivation, under color of state law, of plaintiff's rights and privileges secured by the due process clause of the Fourteenth Amendment" (Plaintiff's Complaint (No. 1) p. 1);

2) 42 U.S.C. § 1985(2) to redress injuries resulting from an alleged conspiracy to procure state administrative action against plaintiff based upon improper evidence and improper procedures with the intent to "maliciously deprive plaintiff of his property rights and the equal protection of the laws", Id. at 2;

3) declaratory relief from placement on the List, Id. at 13-4; and

4) permanent injunctive relief to prevent the Commission from again attempting to place Thomas' on the List. Id. at 14-5.

Further, plaintiff includes the following allegations: the exclusionary hearings before the Commission violated plaintiff's right to procedural due process because the Commission did not provide plaintiff with the opportunity to be heard (Plaintiff's Opposition to Defendants' Motion to Dismiss (No. 20) pp. 13-14); plaintiff invoked the Fifth Amendment privilege in response to inquiries by an agent of the Board because he would have incriminated himself, Id. at 12-13; and the Board violated plaintiff's right to equal protection because it had no rational basis for narrowing the possible candidates in such a way as to include plaintiff on the List. Id. at 16.

On September 28, 1987, defendants filed a motion to dismiss. On February 29, 1988, the court ordered that the motion to dismiss be converted into a motion for summary judgment, giving the parties notice of the changed status and reasonable opportunity to present "all material made pertinent" to such a motion. Fed.R.Civ.P. 12(b). On April 22, 1988, the court heard oral argument from both parties and took the matter under submission.

Having permitted the parties to file additional papers, having heard oral argument from both parties, having reviewed all papers submitted and having considered the evidence in the light most favorable to the plaintiff, the court orders that defendants' motion for summary judgment be GRANTED.

The court takes judicial notice that the Nevada Supreme Court in Spilotro v. State ex rel. Gaming Comm'n, 99 Nev. 187, 661 P.2d 467 (1983), upheld the statutes authorizing the List as constitutionally valid on their face: Nev.Rev.Stat. §§ 463.151-.155 (1987) and NGC Reg. 28.⁷ The issue before the court, in the instant action, is whether these exclusionary statutes were constitutional in their application to plaintiff Thomas.

SUMMARY JUDGMENT STANDARD:

In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court explained that "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of...