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Pistor v. Garcia

United States District Court, Ninth Circuit

January 13, 2014

Rahne Pistor, et al., Plaintiffs,
v.
Carlos Garcia, et al., Defendants.

ORDER

FREDERICK J. MARTONE, Senior District Judge.

The court has before it plaintiffs' motion for partial summary judgment against County Defendants Baxley, Newman, and McDaniel (doc. 106); County Defendants' response and cross motion for summary judgment (doc. 129); plaintiffs' response (doc. 161); plaintiffs' reply (157); and County Defendants' reply (doc. 164). We also have before us State Defendant's response and cross motion (doc. 132), plaintiffs' response (doc. 161), State Defendants' reply (doc. 165). Finally, we have before us plaintiffs' motion to strike (doc. 150), State Defendants' response (doc. 158), County Defendants' response (doc. 160), and plaintiffs' reply (doc. 162).

I. Background

Plaintiffs Pistor, Abel, and Witherspoon are self-described advantage gamblers, [1] who gambled at the Mazatzal Hotel & Casino. The Casino is owned and operated by the Tonto Apache Tribe and is located on tribal land. Plaintiffs allege that on October 25, 2011, they were seized by the State, County, and Tribal Defendants while inside the Mazatzal Casino, handcuffed, and taken to separate private rooms, where they were searched and their personal property was seized. Plaintiffs were held for approximately two hours and were all eventually released without any charges filed against them. Their personal property was taken into custody by Tribal Police Chief Carlos Garcia and was not returned for months.

Plaintiffs filed this action against three sets of defendants. Defendants Baxley, Newman, and Van Buskirk are deputies employed by the Gila County Sheriff's Office (who together with Gila County and the Gila County Sheriff's Office are referred to as "County Defendants"). Defendants McDaniel, Phillips, Nejo, and Loomis are police officers with the State of Arizona, Department of Gaming ("State Defendants"). And defendants Kaiser, Hoosava, and Garcia are Tonto Apache Tribal Police Officers ("Tribal Defendants"). Our ruling that the Tribal Defendants are not entitled to tribal immunity (doc. 44) is on appeal, and the proceedings against the Tribal Defendants are stayed pending that appeal (doc 82).

Plaintiffs have asserted nine causes of action: (1) violation of 42 U.S.C. § 1983 (search and seizure); (2) violation of § 1983 (illegal taking); (3) violation of § 1983 (substantive due process); (4) battery; (5) false imprisonment; (6) conversion; (7) defamation; (8) trespass to chattels; and (9) negligence. Plaintiffs move for summary judgment on their § 1983 and false imprisonment and battery claims asserted against defendants Baxley, Newman, and McDaniel. The County Defendants and the State Defendants move for summary judgment on all claims.

II.

In September 2011, Hubert Nanty, Executive Director of the Tonto Apache Tribal Gaming Office, requested assistance from defendant Carlos Garcia, the Chief of the Tonto Apache Police Department, in an ongoing investigation of plaintiffs' suspected criminal gaming activities. During his investigation, Chief Garcia came to believe that Abel, Pistor, and Witherspoon were using devices to manipulate and override the Casino's electronic gaming machines in order to bet larger amounts and win larger payouts. Garcia decided to detain the plaintiffs for questioning and because he had insufficient staff to simultaneously detain 4 suspects, Garcia contacted the Gila County Sheriff's Office for assistance.[2] Gila County Sheriff's Sgt. Travis Baxley assigned Officers Tony McDaniel, Terry Phillips, and Ray Van Buskirk to assist with the detentions. Sgt. Baxley also contacted State Defendants McDaniel and Phillips, detectives with the Arizona Department of Gaming, for additional assistance. At a briefing just before the detentions, Chief Garcia instructed the Defendant officers to "detain, handcuff, escort and search" the plaintiffs. County DSOF ex. D at 121.

On October 25, 2011, Detectives McDaniel and Phillips approached plaintiff Abel, identified themselves as police officers and informed Abel that he was being detained for possible gambling violations. They handcuffed Abel, led him to a conference room, searched him and placed the contents of his pockets on a table. They removed the handcuffs and left the room.

Also on October 25, 2011, Gila County Deputies Baxley and Newman detained and handcuffed plaintiff Pistor and escorted him to a private room. They removed Pistor's personal items from his pockets and placed them on a table in the room. They did not ask any questions or otherwise interview Pistor. When the investigating officers arrived, Baxley and Newman left the room and had no further contact with Pistor.

Chief Garcia and County Defendant Deputy Van Buskirk detained plaintiff Witherspoon and escorted him to a private room. Witherspoon was not placed in handcuffs. Van Buskirk removed Witherspoon's personal property from his pockets and placed it on a table in the room. Van Buskirk left the room when the investigating officers arrived and had no further contact with Witherspoon or his personal property.

Tribal Chief Garcia seized and maintained possession of all of the plaintiffs' personal property on behalf of the Tribal Police until several months after the detentions. State Defendant Lt. Nejo of the Arizona Department of Gaming's involvement consisted of two 15 to 20 minute interrogations of plaintiffs Abel and Witherspoon. State Defendant Loomis's only involvement was to observe Nejo's questioning.

III. Plaintiffs' Motion to Strike

Plaintiffs move to strike the affidavit of Tribal Police Chief Carlos Garcia for the reason that all proceedings against Garcia, including discovery, are stayed pending the Tribal Defendants' appeal (doc. 150). Plaintiffs complain that Garcia submitted a declaration in support of the State and County Defendants' cross motions for summary judgment while plaintiffs are precluded by the stay from deposing Garcia.

First, plaintiffs' motion to strike is not permitted under LRCiv 7.2(m)(1) which authorizes a motion to strike only if it is authorized by statute or rule. LRCiv 7.2(m)(2) further prohibits litigants from using motions to strike for purposes of objecting to the admissibility of evidence offered in support of a motion.

Additionally, the stay relates to the proceedings against the Tribal Defendants. Plaintiffs have failed to show that the stay also includes a deposition of Garcia as a non-party fact witness. Apparently plaintiffs never sought to take Garcia's deposition. There is no reason to believe that a stay of proceedings against Garcia as a party extends to a deposition of Garcia as a non-party fact witness. The case against the remaining defendants is proceeding despite the stay. Garcia's ...


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