John Marshall v. Grant Sawyer, as Governor of the State of Nevada

301 F.2d 639, 5 Fed. R. Serv. 2d 73, 1962 U.S. App. LEXIS 5746

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 1962
• Docket: 17322_1
• Status: Published

Opinions

HAMLEY, Circuit Judge.

John Marshall, having been assertedly ousted from Desert Inn Hotel in Las Vegas, Nevada, brought this action for damages and injunctive relief, invoking the Civil Rights Act, 28 U.S.C.A. § 1343 (1), (3) and (4), and 42 U.S.C.A. §§ 1983 and 1985(3). Named as defendants were the Governor, Gaming Control Board and Gaming Commission of Nevada, the members of the board and commission, D. I. Operating Co., a Nevada corporation which operates the Desert Inn Hotel and five employees of that company. The action was dismissed on the ground that the federal court should abstain and remit plaintiff to his state court remedies. Plaintiff appeals.

It is alleged in the complaint, among other things, that the defendant state agencies and officials entered into an agreement and adopted a policy to discriminate against and to bar plaintiff from registering or obtaining food service, sitting in the lounge or foyer, or being in the casino or on the premises of any hotel in Nevada licensed to operate a gambling casino, and to bar him from the state of Nevada as a person designated by them as “undesirable.” It was part of this agreement and policy, plaintiff alleged, that the described objectives would be accomplished by coercion, intimidation and inducement by the state defendants, taking the form of threats against hotels in Nevada that they would lose their casino licenses if appellant were permitted in these hotels.

In order to effectuate this agreement and policy, plaintiff alleged, defendants engaged in the following acts:

1. The board and commission and their members compiled, promulgated, published and issued an 8" x 10" booklet bound in black, commonly designated as the “black book,” containing the names and pictures of persons, including plaintiff, designated as and deemed, “undesirable” by those defendants, all of this being done without notice or hearing to the persons so designated, including plaintiff;

2. The board and commission and their members on or about March 29, 1960, distributed copies of the black book to hotel operators in the state of Nevada accompanied by a letter over the signature of defendant Abbaticchio, chairman of defendant board, reading in part as follows:

“The attached booklet which will be, revised and expanded periodically, contains descriptive data with photographs concerning 11 persons (here they are listed, including appellant).

“In order to avoid the possibility of license revocation for ‘unsuitable manner of operation’ your immediate cooperation is requested in preventing the presence in any licensed establishment of all ‘persons of notorious or unsavory reputation’ including the above individuals as well as those who subsequently may be added to this list.”

3. The board and commission and their members, personally or through their representatives, orally informed the recipients of the black book and letter that unless the recipients acceded to the “request” of those defendants, as outlined in the letter, the recipients would lose their licenses;

4. On the evening of October 28,1960, while plaintiff was sitting in the lounge of the Desert Inn Hotel, not committing or having committed any public offense, Abbaticchio and other representatives of the board and commission, for the purpose of effectuating the described agreement and policy, requested and induced employees of the hotel, defendants herein, to oust plaintiff from the hotel;

5. Acceding to the above-described request and inducement, the five defendants who are employees of the defendant hotel operating company, ousted plaintiff from the hotel premises under threat of physical force, this being accomplished in the presence of a large number of persons;

6. In order to harass and intimidate hotel operators into ousting plaintiff from the Desert Inn Hotel and other hotels in Las Vegas, the board and commission and members thereof, led by Abbaticchio, on the evening of October 28, 1960, and other evenings, confiscated cards and dice in the casinos of various hotels in Las Vegas, including the Desert Inn Hotel, while games were in progress and in full view of public patrons such action being extremely detrimental to the gambling business of these hotels, as the state defendants well know and intended;

7. On or about October 29, 1960, Abbaticchio, having in mind the ouster of plaintiff from the Desert Inn Hotel on the previous evening, publicly stated:

“There has been soane failure of certain Strip operators to abide by an agreement with the control board not to entertain or provide or furnish facilities or cater to those people we consider undesirable and detrimental to the gaming industry because of their association with the underworld.

******

“We are attempting to get them (the reneging Strip operators) to cooperate with the control board.”

8. On or about November 2, 1960, defendant Sawyer, Governor of Nevada, having in mind what had occurred at the Desert Inn Hotel on the evening of October 28, 1960, publicly stated:

“I agree with any measures necessary to keep the hoodlums out of Nevada. The operators have a great responsibility to cooperate.

“We might as well serve notice on underworld characters right now they are not welcome in Nevada and we aren’t going to have them here.”

Plaintiff sought damages in the amount of $100 from each of the state defendants and in the amount of $150,000 from all of the remaining defendants. The injunction which he sought was one which would restrain and enjoin the state defendants, their agents, employees or anyone acting in concert with them or in their behalf:

“from giving effect to said policy and action of keeping plaintiff out of the State of, and hotels in, Nevada through said Black Book or said letter of March 29, 1960, and from causing, coercing or inducing the operators or employees of hotels in Nevada, by threat of cancellation of license or otherwise, to bar or eject plaintiff from their premises, or to refuse to give service or afford accommodations to plaintiff on the same basis as any other citizen; ”

Filed with the complaint was a motion for a preliminary injunction seeking temporary relief of the same kind as that sought in the prayer for a permanent injunction. Defendant D. I. Operating Co., and the five individual defendants who are employees of that company, joined in an answer denying most of the essential allegations of the complaint. The state defendants filed no answer but joined in a motion under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A., to dismiss the complaint, five grounds being urged, namely: (1) the federal courts should abstain, . (2) no grounds for equitable relief were alleged, (3) the complaint did not state a claim upon which relief can be granted, (4) the complaint shows on its face that each such defendant is protected by the defense of official immunity, and (5) the federal district court lacks jurisdiction.

Accompanying the motion to dismiss was the affidavit of defendant Abbaticehio, chairman of defendant board, in which facts were alleged concerning the preparation and issuance of the so-called black book and accompanying letter, and the policies and enforcement methods of that state agency with reference to the regulation of gambling in Nevada. While this affidavit presented matters outside the pleading, it was apparently regarded by the court as directed only to the motion for a temporary injunction, and such new matters were excluded from consideration in passing on the motion to dismiss. The court therefore did not treat the motion as one for a summary judgment, as it would have been obliged to do had the new matters not been excluded from consideration. See Rule 12(b) supra.

As before noted, the motion to dismiss was granted on the sole ground that the district court should abstain. While the non-state defendants had not moved to dismiss the complaint the court also dismissed the complaint as to them. Having held abstention appropriate as to the state defendants, the court determined that the alleged actions of the state and non-state defendants were so intertwined that it would be “ludicrous” to retain the case as to some of the defendants and not as to the others. The non-state defendants have not appeared as appellees in this court.

At the outset we must consider, on our own motion, whether the appeal must be dismissed because not taken from an appealable order. An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Javor v. Brown, 9 Cir., 295 F.2d 60.

The special circumstances which will permit this court to regard such an order as final and appealable must be such as to make it clear that the court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make, thereby entitling plaintiff to assume that he had no choice but to stand on his complaint. Asher v. Ruppa, 7 Cir., 173 F.2d 10. See also Gardner v. J. J. Newberry Co., Inc., 9 Cir., 239 F.2d 178; Williams v. Peters, 9 Cir., 233 F.2d 618, 16 Alaska 303.

We think such circumstances are present in this case. The order dismissing the complaint herein is not based upon the ground that appellant has failed to state a claim but on the ground that, whether or not a claim has been stated, the federal court should abstain. In view of this ruling there was no way in which plaintiff could, by amending his complaint, avoid dismissal of the action. Faced with this barrier to further district court proceedings, plaintiff’s appeal evidences a determination to stand on his complaint and accept the order as a dismissal of the action. We conclude that the order is appealable.

Another preliminary question, going to the jurisdiction of the district court to enter the order under review, must also be considered. This question is whether, by reason of the prayer for an injunction restraining and enjoining state officials in certain respects, a single district judge, as distinguished from a three-judge court convened under 28 U.S.C.A. §§ 2281, 2284, had jurisdiction to dismiss the action on the ground of abstention.¹

This question was not discussed in plaintiff’s opening brief on appeal. In the brief filed by the state defendants, it was argued that § 2281 is inapplicable. Plaintiff took the same position in its reply brief. When the question was raised from the bench during oral argument, plaintiff and the state defendants adhered to this position.

Plaintiff, however, filed a post-oral argument memorandum in which a change of view was indicated. It was plaintiff’s new position that the case was one for a three-judge court, and if the complaint states a cause of action, the judgment of dismissal should be reversed and the cause remanded for the convening of such a court. Appellees filed an answering memorandum in which they adhered to their previously-stated position that a three-judge court was not required.

Section 2281, requiring a three-judge court, is applicable where the plaintiff seeks to enjoin the enforcement, operation or execution of a state statute, or an administrative order of general application representing considered state policy, on the ground that such statute or order is in violation of the Constitution of the United States. See Hatfield v. Bailleaux, 9 Cir., 290 F.2d 632, 635.

In his complaint, summarized above, plaintiff does not attack the validity of any state statute. Nor does he attack the validity of any numbered regulations adopted by the Nevada Gaming Commission.² He does, however, in addition to challenging certain conduct by individual defendants, attack the validity of the black book and the letter of March 29, 1960, which accompanied it, compiled, published, distributed and enforced as alleged. While the attack thereon is not expressly stated to be on constitutional grounds, this is the fair intendment of the complaint, as the appellees concede.³

The question, then, is whether this black book and the accompanying letter of March 29, 1960, compiled and distributed for the purposes and enforced in the manner alleged, constitute an administrative order of general application representing considered state policy. If so, the single district judge was, in view of §§ 2281 and 2284, without jurisdiction to dismiss the action on the ground of abstention. Idlewild Bon Voyage Liquor Corporation v. Rohan, 2 Cir., 289 F.2d 426, 429.

This booklet and accompanying letter have some of the attributes of an administrative order of general application. According to the complaint, the booklet represented state policy and was distributed to all hotels in the state which operate gambling casinos. It was not limited in its effect to a particular and contemporaneous transaction, but extended to future activities at hotels all over the state. It was stated in the accompanying letter that the booklet would be “revised and expanded” periodically, and recipients were advised to give effect to the information therein contained in order to avoid the possibility of license revocation.

However, when the content of the booklet and letter are examined, it is seen that they are only informational and advisory releases without any immediate operative effect as administrative orders. The booklet is limited to a recital of the findings made by the state agencies and officials concerning the alleged undesirable character of identified individuals. Insofar as it is described in the complaint, the booklet does not order licensees to do, or refrain from doing, anything. The letter calls attention to the booklet and requests “cooperation” in excluding the identified individuals from their establishments. Neither the booklet nor the letter were promulgated in the manner prescribed by statute for administrative orders of general application. See N.R.S. § 463.145, 150.

Section 2281 is to be closely construed to the end that only those cases which plainly fall in the class therein described be referred to three-judge courts. Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800. An agency determination which is primarily a finding of fact, is not the kind of an order contemplated by § 2281. Ex Parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877.⁴

We hold that the agency action sought to be enjoined in this case does not draw into question the validity of a state regulation or administrative order of the kind referred to in § 2281, and that it was not necessary to convene a three-judge court. The single district judge thus had jurisdiction to entertain the suit.

This brings us to the .question of whether the court erred in dismissing the action on the ground that the federal court should abstain.

The avoidance of the obligation of federal courts to decide cases in which they have jurisdiction can be justified under the doctrine of abstention “only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 3 L.Ed. 2d 1163.

The exposing to state construction or limiting interpretation of state statutes fairly open to interpretation, before federal courts are asked to decide upon their constitutionality, has been held to be an important countervailing interest which would be clearly served by abstention. Harrison v. N. A. A. C. P., 360 U.S. 167, 176, 79 S.Ct. 1025, 3 L.Ed.2d 1152. This is true, the court held, because (1) the state courts might give the state statute a construction which would avoid in whole or in part the necessity for federal constitutional adjudication, and (2) if the state adjudication did not moot the federal constitutional adjudication, the federal judgment would at least “be based on something that is a complete product of the State, the enactment as phrased by its legislature and as construed by its highest court; * * * ” Harrison, at 178, 79 S.Ct. at 1031.

No such countervailing interest could be served by abstention in the instant case, since the constitutionality of a state statute is not here in issue.

What is here in question is the asserted illegality of the conduct of the state and non-state defendants, rather than the validity of the statutes and general regulations under which they may have acted. It is nevertheless true that, were .an injunction the only relief sought, abstention would serve the same countervailing interest as in the case of a challenge to the validity of a state statute. A state court might well determine that the conduct complained of was unauthorized by state law and should therefore be enjoined on that ground, without reaching the federal constitutional question.

But in this Civil Rights Act case plaintiff seeks damages as well as injunctive relief. The only elements which need to be present in order to establish a claim for damages under the Civil Rights Act are that the conduct complained of was engaged in under color of state law, and that such conduct subjected the plaintiff to the deprivation of rights, privileges, or immunities secured by the Constitution of the United States.

The defendants’ conduct was engaged in under color of state law if they were clothed with the authority of the state and were purporting to act thereunder, whether or not the conduct complained of was authorized or, indeed, even if it was proscribed by state law. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 478, 5 L.Ed.2d 492; Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495. Whether there is “color” of state law is a federal, not a state question. Were this not true a state, acting through its legislature or courts, would have it within its power to immunize its agencies and officials from liability under the Civil Rights Act.⁵

The second essential element in a Civil Rights Act damage case — conduct which deprives the plaintiff of a constitutional right — is also a question of federal law. The meaning or validity of state statutes or regulations is immaterial to the resolution of this question.

The abstention doctrine does not permit federal district. courts to defer to the state courts for the decision of federal constitutional questions. United States v. Livingston, D.C., 179 F.Supp. 9, 12, affirmed per curiam Livingston v. United States, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719.

It has not been argued that the determination of these federal questions could be avoided by requiring plaintiff to seek damages in the state court on some theory other than the Civil Rights Act. But, in any event, it was held in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, that the federal remedy provided by the Civil Rights Act is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. “It is no answer,” the Supreme Court said, “that the State has a law which if enforced would give relief.” See, also, Cohen v. Norris, 9 Cir., 300 F.2d 24.

It follows, from what has been said concerning the damage aspect of this case that abstention could not result in mooting the federal constitutional question concerning the conduct of defendants. Nor would any state court ruling concerning the authority to engage in that conduct be of any assistance to the federal court in deciding the constitutional question. This being the case, abstention would not serve an important countervailing interest. See Public Utilities Commission of Ohio v. United Fuel Gas Co., 317 U.S. 456, 463, 63 S.Ct. 369, 87 L.Ed. 396.⁶

We have not overlooked appellees’ argument that the damages sought from the eleven state defendants — $100 from each of them — is nominal, and that the principal relief sought is injunctive.

We need not decide whether the $100 sought from each state defendant, if standing alone, should be regarded as a nominal amount. If plaintiff prevails on his damage claim against all of the state defendants, he could recover as much as $1,100. This is a substantial sum. Moreover, while the injunction was sought only against the state defendants, the monetary recovery in the sum of $150,000 sought against all of the remaining defendants cannot be disregarded. Viewing the case as a whole there is no basis for concluding that only nominal damages are sought, or that the principal relief sought is an injunction.

In view of what is said above, it is unnecessary for us to consider whether, if abstention were available here, it was proper to dismiss the action rather than to retain jurisdiction under a stay pending determination of state law questions in state court proceedings, as was required to be done in Harrison v. N. A. A. C. P., supra.

Appellees argue, as an additional ground of affirmance, that the complaint does not state a claim upon which relief can be granted. While this was one ground of the motion, it was not a ground relied upon by the district court in dismissing the action.

A complaint is not subject to dismissal upon this ground unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Gruen Watch Co. v. Artists Alliance, 9 Cir., 191 F.2d 700. We are of the view that, except for the question of whether the complaint adequately alleges that the non-state defendants acted under color of state law, the complaint is sufficient to withstand a motion to dismiss made on the indicated ground. Upon remand the parties will have an opportunity to test the adequacy of the complaint in the respect here reserved, and plaintiff will have the opportunity to amend the complaint in that respect.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

1 . § 2281 reads as follows:

“Injunction against enforcement of State statute; three-judge court required

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined • by a district court of three judges under section 2284 of this title. June 25, 1948, c. 040, 62 Stat. 968.”

The first paragraph of 28 U.S.C.A. § 2284 (5) reads as follows:

“Any one of the three judges of the court may perform all functions, conduct all proceedings except the trial, and enter all orders required or permitted by the rules of civil procedure. A single judge shall not appoint a master or order a reference, or hear and determine any application for an interlocutory injunction or motion to vacate the same, or dismiss the action, or enter a summary or final judgment. The action of a single judge shall be reviewable by the full court at any time before final hearing.”

2 . Regulation 5.010(3) (e), promulgated by that agency, which is not mentioned in the complaint, reads as follows:

“(3). The commission and the board deem that any activity on the part of a licensee, his agents or employees which is inimicable to the public health, safety, morals, good order and general welfare of the people of the State of Nevada or which would reflect or tend to reflect discredit upon the State of Nevada or the gaming industry is an unsuitable manner of operation. Without limiting the generality of the foregoing, the following acts or omissions may be deemed unsuitable manners of operation:

* * * * *

“(e) Catering to, assisting, employing or associating with, either socially or in business affairs, persons of notorious or unsavory reputation or who have extensive police records, or persons who have defied congressional investigative committees or other officially constituted bodies acting on behalf of the United States or any state, or persons who are associated with or support subversive movements.”

3 . In addition to the allegations of the complaint summarized above, there is quoted in the complaint portions of 28 U.S.C.A., § 1343, in which reference is made to the rights, privileges and immunities secured by the Constitution of the United States.

4 . See also, Gully v. Interstate Natural Gas Co., 292 U.S. 16, 54 S.Ct. 565, 78 L.Ed. 1088; Martin v. Producers Pipeline Co., 6 Cir., 113 F.2d 817.

5 . The federal character of such a question was exemplified recently in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. The Supreme Court of the United States overturned a ruling by the Supreme Court of Delaware that the conduct engaged in by a particular restaurant did not constitute state action.

6 . The district court did not order, and appellees have not suggested, that the case be split, the injunctive feature being dismissed or postponed awaiting a state court adjudication, and the federal court proceeding with the damage feature of the case.