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Pistor v. Garcia

United States Court of Appeals, Ninth Circuit

June 30, 2015

RAHNE 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

Argued and Submitted, San Francisco, California: November 20, 2014.

Page 1105

[Copyrighted Material Omitted]

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Page 1107

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

SUMMARY[**]

Civil Rights

The panel affirmed the district court's denial of a motion to dismiss an action brought against tribal officers who were sued in their individual capacities for an assertedly unconstitutional detention and seizure of property that took place at a casino owned and operated by a tribe on tribal land. The district court held that even if the tribal defendants were entitled to tribal immunity, it was inappropriate to dismiss the claims against the defendants for lack of subject matter jurisdiction. The district court went on to hold, however, that if the tribal defendants' Fed.R.Civ.P. 12(b)(1) motion to dismiss was construed as a Rule 12(b)(6) motion to dismiss, the court would conclude that plaintiffs had sufficiently stated a 42 U.S.C. § 1983 claim against the tribal defendants in their individual capacities. The district court therefore denied defendants' motion to dismiss the action.

The panel held that sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the panel held that the district court erred in concluding that it would be inappropriate to dismiss the claims against the defendants at the 12(b)(1) stage. The panel nevertheless affirmed the district court's denial of defendants' motion to dismiss the action. The panel held that the tribal defendants were not entitled to tribal 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.

The panel held that it did not have jurisdiction to decide whether plaintiffs successfully stated a claim against the defendants under § 1983. The panel held that whether the tribal defendants were acting under state or tribal law did not matter for purposes of the tribal sovereign immunity analysis, although it will matter for purposes of deciding whether plaintiffs can succeed in their § 1983 claim.

Glenn M. Feldman (argued) and D. Samuel Coffman, Dickinson Wright/Mariscal Weeks, Phoenix, Arizona, for Defendants-Appellants.

Robert A. Nersesian (argued) and Thea M. Sankiewicz, Nersesian & Sankiewicz, Las Vegas, Nevada, for Plaintiffs-Appellees.

Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges, and Elaine E. Bucklo, Senior District Judge.[*] Opinion by Judge Berzon.

OPINION

Page 1108

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. ...


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