Pistor et al v. Garcia et al

Filing 44

ORDER DENYING plaintiffs' motion to strike portions of defendants' reply (doc. 40 ). IT IS FURTHER ORDERED DENYING defendants Hoosava, Garcia, and Kaiser's motion to dismiss for lack of jurisdiction (doc. 25 ). Signed by Judge Frederick J Martone on 9/5/2012.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 Jacob) ) ) ) Plaintiffs, ) ) vs. ) ) Carlos Garcia; Reynolds Nejo; Terry) Phillips; Tony McDaniel; Gila County) Sheriff's Department; Farrell Hoosava;) Lisa Kaiser; Unknown Agent of the Gila) County Sheriff's Department; Unknown) Agent of the State of Arizona, Department) of Gaming; Sgt. Baxley; Dennis Newman;) ) Gila County; Arizona, ) ) Defendants. ) ) Rahne Pistor; Witherspoon, George Abel; CV 12-00786-PHX-FJM ORDER 19 20 21 We have before us defendants Carlos Garcia, Farrell Hoosava, and Lisa Kaiser's 22 ("defendants") motion to dismiss for lack of jurisdiction (doc. 25) and declarations 23 supporting the motion (docs. 26, 27, 28), plaintiffs' response (doc. 29), and defendants' reply 24 (doc. 35) and declarations supporting the reply (docs. 36, 37, 38). We also have before us 25 plaintiffs' motion to strike portions of defendants' reply (doc. 40), defendants' response (doc. 26 41), and plaintiffs' reply (doc. 42). 27 28 1 Plaintiffs, non-Indians, describe themselves as advantage gamblers.1 All three 2 gambled at the Mazatzal Hotel & Casino ("Mazatzal") in Payson, Arizona, which is owned 3 and operated by the Tonto Apache Tribe ("the Tribe") and is located on tribal land. Plaintiffs 4 each won a substantial amount of money playing some of Mazatzal's video blackjack 5 machines. Moving defendants are all employed by the Tribe. Hoosava is the General 6 Manager of Mazatzal. Kaiser is employed by the Tribe as a Tribal Gaming Office Inspector. 7 Garcia is employed by the Tribe as Chief of the Tonto Apache Police Department. 8 On October 25, 2011, plaintiffs allege that they were seized while inside Mazatzal. 9 Pistor and Abel were handcuffed, and all three plaintiffs were brought to private rooms and 10 questioned. Plaintiffs were eventually released and were not charged with any crime. 11 Defendants seized thousands of dollars in cash and casino cash redemption tickets from 12 plaintiffs. The property has not yet been returned. 13 Plaintiffs allege in their complaint that the seizure was part of a "joint action between 14 the State of Arizona Department of Gaming, [t]he State of Arizona Department of Public 15 Safety, [] the Gila County Sheriff's Office," and Mazatzal, Compl. ¶ 15 (doc. 1), done both 16 to punish plaintiffs for winning and to steal back some of the money plaintiffs won at 17 Mazatzal. Plaintiffs allege that Kaiser, Hoosava, and Garcia (who they refer to as the 18 "Mazatzal defendants," "participat[ed] and conspir[ed] with the state actors in their individual 19 capacities." Compl. ¶ 20. 20 Plaintiffs filed this action on April 13, 2012, alleging nine causes of action: (1) 21 violation of 42 U.S.C. § 1983 (search and seizure); (2) violation of § 1983 (violation of due 22 process in the form of a taking); (3) violation of § 1983 (substantive due process); (4) battery; 23 (5) false imprisonment; (6) conversion; (7) defamation; (8) trespass to chattels; and (9) 24 negligence. Hoover, Garcia, and Kaiser argue that they are entitled to tribal immunity, and 25 ask us to dismiss all claims asserted against them for lack of subject matter jurisdiction. 26 27 28 1 Plaintiffs limit their play to games with a statistical advantage favoring the player. -2- 1 I 2 Plaintiffs move to strike defendants' citation in their reply to an unpublished Ninth 3 Circuit opinion and their submission of new declarations by Garcia and Hubert Nanty, 4 Executive Director of the Tribal Gaming Office. Striking these portions of the reply is 5 unnecessary. If defendants raise new arguments on reply, we will simply not consider them. 6 See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) ("arguments raised for the first 7 time in a reply brief are waived"). And even if defendants improperly rely on an unpublished 8 opinion, we need not rely on it. Plaintiffs' motion to strike is denied. 9 II 10 Subject matter jurisdiction addresses the court's power to hear particular classes of 11 cases and controversies. Whether we have the power to hear a kind of claim is a separate 12 question from whether a particular claim against a particular defendant may be barred by the 13 assertion of an affirmative defense. See Dunlap v. United States, CV-11-01360-PHX-FJM, 14 2012 WL 510532, at *5 (D. Ariz. Feb. 16, 2012) ("Subject matter jurisdiction relates to the 15 power of a court to hear the class of claims to which the claim belongs and is not defeated 16 just because the claim is barred by a defense."). This principle applies equally to assertions 17 of sovereign immunity, a defense which can be waived. See Wis. Dep't of Corr. v. Schacht, 18 524 U.S. 381, 389, 118 S. Ct. 2047, 2052 (1998) (state's "legal power to assert a sovereign 19 immunity defense" under the Eleventh Amendment can be waived; "[u]nless the State raises 20 the matter, a court can ignore it"); Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 21 754, 118 S. Ct. 1700, 1702 (1998) (tribe can waive sovereign immunity). Thus, "[s]overeign 22 immunity is grounds for dismissal independent of subject matter jurisdiction. A statute may 23 create subject matter jurisdiction yet not waive sovereign immunity." Powelson v. United 24 States, By & Through Sec'y of Treasury, 150 F.3d 1103, 1105 (9th Cir. 1998). 25 Here, plaintiffs assert claims under 42 U.S.C. § 1983 and state law. We have subject- 26 matter jurisdiction to hear the § 1983 claims under 28 U.S.C. § 1331, and have supplemental 27 jurisdiction to hear related state law claims under 28 U.S.C. § 1367. Whether the claims 28 -3- 1 asserted against these three defendants should be dismissed based on the defense of tribal 2 immunity does not alter our power generally to hear these kinds of claims. Even if Hoosava, 3 Kaiser, and Garcia are entitled to tribal immunity from suit, in other words, it would be 4 inappropriate for us to dismiss the claims against them for lack of jurisdiction.2 We deny the 5 motion on that basis. III 6 7 Even if we were to construe the motion as one to dismiss for failure to state a claim 8 under Rule 12(b)(6), Fed. R. Civ. P., we would still deny it, at least with respect to the § 1983 9 claims.3 An Indian tribe cannot be sued unless Congress has abrogated its immunity or the 10 tribe has consented to suit. Kiowa Tribe, 523 U.S. at 754, 118 S. Ct. at 1702. Section 1983 11 actions cannot be used to address violations of constitutional rights committed "under color 12 of tribal law." R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir. 13 1983). Instead, to prevail on their § 1983 claims, plaintiffs must show "(1) that the conduct 14 complained of was committed by a person acting under the color of state law; and (2) that 15 this conduct deprived them of rights, privileges, or immunities secured by the Constitution 16 or laws of the United States." Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir. 1989) 17 (emphasis in original). 18 Here, plaintiffs have not sued the Tribe. Instead, they have sued Hoosava, Kaiser, and 19 Garcia, three tribal employees. Tribal immunity extends to tribal employees sued in their 20 official capacities for actions taken in the scope of their authority. Cook v. Avi Casino 21 Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008). Defendants are not entitled to tribal 22 immunity, however, if they are sued under § 1983 in their individual capacities for actions 23 24 25 26 2 Defendants also state that the claims should be dismissed against them for lack of personal jurisdiction. They do not, however, offer any argument for why this court lacks personal jurisdiction over them, other than that they are entitled to tribal immunity. 3 27 Defendants have not addressed the propriety of asserting state law claims against tribal employees for events occurring on tribal land, and we do not discuss the issue here. 28 -4- 1 that they took under color of state law. See Evans, 869 F.2d at 1347-48. Thus, the crucial 2 question in this case becomes whether plaintiffs sued these defendants under § 1983 in their 3 official capacities or in their individual capacities. The distinction between the two has 4 "confuse[d] lawyers and confound[ed] lower courts." Kentucky v. Graham, 473 U.S. 159, 5 165, 105 S. Ct. 3099, 3105 (1985). A suit against a person in his official capacity is really 6 a suit against the State. Accordingly, the only immunities available to a person sued in his 7 official capacity are those immunities available to the State. Hafer v. Melo, 502 U.S. 21, 25, 8 112 S. Ct. 358, 362 (1991). By contrast, a person can be individually liable under § 1983 for 9 actions taken pursuant to his official authority (actions falling, in other words, within the 10 scope of his employment). See id. at 28, 112 S. Ct. at 363 (argument that official cannot be 11 individually liable under § 1983 for actions taken within his authority and necessary to state 12 function "finds no support" in the statute and "cannot be reconciled" with the case law). 13 Although the complaint does not clearly indicate the capacity in which these 14 defendants have been sued, plaintiffs clarify that they do not seek to hold the Tribe liable, but 15 rather seek to hold these defendants individually liable for their actions. Resp. to Mot. to 16 Dismiss at 16. Moreover, plaintiffs have alleged that Hoosava, Kaiser, and Garcia acted in 17 concert with state officials to detain, question, and confiscate the plaintiffs' property. For 18 example, they allege that Garcia and Hoosava invited the participation of the Arizona 19 Department of Gaming, the Arizona Department of Public Safety, and the Gila County 20 Sheriff's Office to help seize plaintiffs' property. Compl. ¶ 15. Plaintiffs also allege that they 21 were initially seized by state officials, were detained at Mazatzal and searched by both tribal 22 employees and state officials, and that some of their property was seized by "Indian 23 defendants." Compl. ¶¶ 31-33. 24 Taking these allegations as true, as we must if the issue was before us on a Rule 25 12(b)(6), Fed. R. Civ. P. motion to dismiss, we would conclude that plaintiffs have 26 sufficiently stated a § 1983 claim against Hoosava, Kaiser, and Garcia in their individual 27 capacities. 28 -5- 1 IV 2 IT IS ORDERED DENYING plaintiffs' motion to strike portions of defendants' 3 reply (doc. 40). IT IS FURTHER ORDERED DENYING defendants Hoosava, Garcia, 4 and Kaiser's motion to dismiss for lack of jurisdiction (doc. 25). 5 DATED this 5th day of September, 2012. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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