Conner vs Harrah's Operating Company, Inc. et al

Filing 115

ORDER denying 99 Motion to Reconsider. Signed by Chief Judge Robert C. Jones on 10/2/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM H. CONNER,

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This case arises out of an alleged conspiracy between a Reno casino and three employees

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Plaintiff,
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vs.
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HARRAH’S OPERATING CO., INC. et al.,
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Defendants.

3:08-cv-00633-RCJ-WGC
ORDER

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of the Nevada Gaming Control Board (“the Board”) to recover an allegedly fictitious

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overpayment made to a gambler. Pending before the Court is Defendant Harrah’s Operating Co.,

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Inc.’s (“Harrah”) motion to reconsider. For the reasons given herein, the Court denies the

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motion.

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I.

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FACTS AND PROCEDURAL HISTORY
On July 19, 2008, Plaintiff William H. Conner was gambling at a baccarat table at

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Harrah’s Hotel and Casino in Reno, Nevada when he took his winnings and moved to another

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baccarat table. (First Am. Compl. ¶¶ 2, 5). After forty minutes, a Harrah’s manger interrupted

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the game and told Plaintiff that he had been overpaid at the first table. (Id. ¶¶ 6–7). Although the

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manager indicated the incident had been captured on film, Harrah’s never produced the film

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because the manager admitted it would not show any overpayment; Plaintiff also believes the

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security officer watching the film during the alleged overpayment could not attest to any

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overpayment. (See id. ¶¶ 8, 10–11, 21).

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The following morning, Plaintiff met with the casino operations manager who accused

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Plaintiff of having taken an overpayment, although he did not claim to know the amount. (Id. ¶

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9). At the end of the meeting, the casino operations manager told Plaintiff that a gaming control

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agent would call him. (Id. ¶ 13). After the meeting, Defendant Steve Heiman called Plaintiff, and

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Plaintiff again refuted the allegations that he had been overpaid. (Id. ¶ 14).

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Plaintiff then contacted Heiman’s supervisor, Defendant David Andrews, to arrange a

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meeting at the offices of the Board. (Id. ¶ 15). Plaintiff alleges that Andrews deliberately lured

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Plaintiff to the meeting in order to effectuate Plaintiff’s false arrest by Andrews’s subordinates.

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(Id.). When Plaintiff arrived at the offices of the Enforcement Division, Defendants Heiman and

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Russ Neil confronted him with two other officers. (Id. ¶ 16). Heiman and Neil escorted Plaintiff

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to a room and asked him to place his hands on the table. (Id.). Neil frisked Plaintiff and told him

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he was under arrest for an unspecified felony and that Defendants were going to take him to the

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Washoe County Detention Center. (Id. ¶ 17). Heiman commented that the search indicated

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Plaintiff’s penis was “the size of a Chapstick.” (Id. ¶ 17). Plaintiff alleges implicitly that the

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events in this room were recorded. (See id.). Heiman and Neil left Plaintiff under the supervision

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of an unidentified officer, and when they returned they told Plaintiff that he had two options: (1)

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be escorted by the agents to Harrah’s to repay the overpayment; or (2) go to jail. (Id. ¶ 18).

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Plaintiff agreed to repay the alleged overpayment under duress. (See id. ¶ 19). Heiman and Neil

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took Plaintiff to Harrah’s in a government car, where they met the casino operations manager,

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who escorted them to the cashier’s cage, where Plaintiff paid the alleged overpayment of $950.

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(Id. ¶ 20). One of the agents said, “I’ll call you later, buddy!” to the casino operations manager

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as the agents escorted Plaintiff back to the government car. (Id.).

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Plaintiff sued Harrah’s Operating Co., Inc. (“Harrah’s”), Heiman, Neil, and Andrews in
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this Court on fifteen causes of action. (See Compl., ECF No. 1). The First Amended Complaint

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(“FAC”) lists fourteen causes of action: (1) Civil Conspiracy; (2) Conversion; (3) Defamation;

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(4) Fourth Amendment Violations pursuant to 42 U.S.C. § 1983; (5) First Amendment Violations

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pursuant to 42 U.S.C. § 1983; (6) Conspiracy to Violate Plaintiff’s Civil Rights pursuant to 42

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U.S.C. § 1983; (7) False Arrest; (8) False Imprisonment; (9) Battery; (10) Intentional Infliction of

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Emotional Distress (“IIED”); (11) Fifth and Sixth Amendment Violations pursuant to 42 U.S.C.

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§ 1983; (12) Respondeat Superior liability against Harrah’s; (13) Negligent Supervision against

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Harrah’s; and (14) Declaratory and Injunctive Relief.

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On July 7, 2009, Judge Brian E. Sandoval granted the State Defendants’ motion to

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dismiss in part, leaving only the fourth and sixth causes of action as against them. (See Order

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13:27–14:3, July 7, 2009, ECF No. 23). The Court dismissed the third, forth, fifth, seventh,

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eighth, ninth, tenth, eleventh, and fourteenth causes of action as against Harrah’s, leaving the

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first, second, sixth, twelfth and thirteenth causes of action. (See Order 6:13–18, Feb. 22, 2010,

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ECF No. 41). The Court later granted summary judgment on all remaining causes of action

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except the unreasonable seizure and civil rights conspiracy claims under 42 U.S.C. § 1983. (See

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Order 14:3–6, Oct. 20, 2010, ECF No. 60). Heiman and Neil took an immediate appeal of the

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adverse qualified immunity ruling, and the Court of Appeals reversed. Harrah’s has now asked

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the Court to reconsider the denial of summary judgment as against Harrah’s.

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II.

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ANALYSIS
Harrah’s asks the Court to reconsider its denial of summary judgment to Harrah’s on the

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§ 1983 conspiracy claim. Although styled as a motion to reconsider, Harrah’s essentially asks

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the Court to grant it summary judgment against Plaintiff’s § 1983 conspiracy claim in light of the

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Court of Appeals’ ruling that Harrah’s alleged coconspirators are immune from that claim.

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Harrah’s argues that because the alleged conspirators are immune from suit, there cannot be any

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conspiracy involving Harrah’s. Plaintiff responds that Harrah’s alleged coconspirators’
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immunity from suit has nothing to do with whether they in fact conspired with Harrah’s for the

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purposes of Harrah’s own liability. Harrah’s itself is not immune from suit.

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The merits of the § 1983 claims were not appealed and are not yet appealable. The

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qualified immunity issue alone was immediately appealable, because “[q]ualified immunity is ‘an

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immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is

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effectively lost if a case is erroneously permitted to go to trial.’” Scott v. Harris, 550 U.S. 372,

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376 n.2 (2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). If a defendant were

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forced to wait until after trial to obtain review of an order denying his claim to be immune from

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standing trial at all, as opposed to a claim that he was simply not liable, the trial court’s order

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would be “effectively unreviewable.” Id. (quoting Mitchell, 472 U.S. at 527). Qualified

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immunity is therefore not a determination of the merits, but a ruling that a particular defendant

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cannot even be tried on the merits. Maag v. Wessler, 993 F.2d 718, 720 (9th Cir. 1993).

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Still, under the two-step framework established by the Supreme Court, a qualified

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immunity ruling could preclude a claim on the merits. An official is not entitled to qualified

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immunity if: (1) there has been a constitutional violation; and (2) the state of the law was clear

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enough at the time of the violation that a reasonable person in the defendant’s position would

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have known his actions violated the plaintiff’s rights. Saucier v. Katz, 533 U.S. 194, 201 (2001).

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A court has discretion to analyze the second prong first in order to avoid unnecessary

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constitutional rulings. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court were to rule

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based upon the first Saucier prong, i.e., that there simply was no constitutional violation, then

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that issue would be precluded from relitigation.

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In the present case, however, the Court of Appeals based its qualified immunity ruling on

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the second Saucier prong. See Conner v. Heiman, 672 F.3d 1176, 1133 (9th Cir. 2012) (“We

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think Neil and Heiman could have reasonably concluded that they had probable cause . . . . Thus,

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a reasonable officer would not find it ‘clear’ that Neil and Heiman violated the Fourth
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Amendment . . . . Because Neil and Heiman did not violate clearly established Fourth

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Amendment rights . . . .” (emphases added)). The Court of Appeals did not determine whether

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Neil or Heiman in fact had probable cause under the first Saucier prong. Harrah’s is simply

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incorrect when it states in its motion that the Court of Appeals held that Neil and Heiman did not

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violate Plaintiff’s rights. Harrah’s cites Saucier for the proposition that a court should determine

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the first Saucier prong first; from there, Harrah’s reasons that because the Court of Appeals

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found Neil and Heiman to be immune, it necessarily found that Neil and Heiman did not violate

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Plaintiff’s rights. This is a non sequitur. Harrah’s ignores the Pearson rule that permits courts to

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perform the Saucier analysis in either order, overruling that portion of Saucier requiring courts to

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examine the first Saucier prong first. See Pearson, 555 U.S. at 236. In this case, the Court of

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Appeals ruled based on the second Saucier prong. See Conner, 672 F.3d at 1133. Therefore,

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although Neil and Heiman are immune from suit for either an illegal seizure or a related civil

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rights conspiracy, see id., the actual question of their probable cause to arrest Plaintiff has simply

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not been determined, see generally id., and Plaintiff is therefore not collaterally estopped from

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asserting that Neil and Heiman did not have probable cause to arrest him, or, by extension, that

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they and Harrah’s conspired to deprive him of his constitutional rights against unreasonable

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seizure.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 99) is DENIED.

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IT IS SO ORDERED.

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Dated this 28th day of September, 2012.
2nd
of October, 2012.

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_____________________________________
ROBERT C. JONES
United States District Judge

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