Shannon Dotson v. Tunica-Biloxi Gaming Cmsn ( 2020 )

Case: 20-30261 Document: 00515618470 Page: 1 Date Filed: 10/28/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 28, 2020
No. 20-30261 Lyle W. Cayce
Clerk
Shannon Demond Dotson,
Plaintiff—Appellant,
versus
Tunica-Biloxi Gaming Commission; Sheila Augustine;
Lori Piazza; Ms. Vocarro; Unknown Supervisor,
African; Unknown Manager, 1:30 PM; Ms. Camilla;
Commissioner Newman; Commissioner Bobby Pierite;
Catherine Pierite; Cheryl Barby,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-885
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Shannon Dotson claims he won a $20,500,000 jackpot while playing
the slot machine at the Paragon Casino Resort. Dotson filed this suit pro se
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30261
against multiple defendants, including the Tunica-Biloxi Gaming
Commission, Lori Piazza, and Ms. Vocarro, alleging that they stole his
jackpot winnings by fabricating a slot machine error code. The district court
dismissed with prejudice Dotson’s claims against the Gaming Commission,
Piazza, and Vocarro. Dotson appealed, and, for the reasons discussed below,
we affirm.
I
The Tunica-Biloxi Tribe of Louisiana is a federally recognized Indian
tribe. See Indian Entities Recognized and Eligible to Receive Services from
the United States Bureau of Indian Affairs, 81 Fed. Reg. 26,826–02, 26,830
(May 4, 2016). The Tribe established the Tunica-Biloxi Gaming Commission
under tribal law and in accordance with the Indian Gaming Regulatory Act
(IGRA). See 25 U.S.C. §§ 2701 et seq. The Gaming Commission regulates
gaming activities within the jurisdiction of the Tribe, including those at the
Tribe-owned Paragon Casino Resort. See Tribal-State Compact for the
Conduct of Class III Gaming Between the Tunica-Biloxi Indian Tribe of
Louisiana and the State of Louisiana, § 8(A); see also 66 Fed. Reg. 51,453–03,
51,453 (Oct. 9, 2001). In the Tribal-State Compact between the Tribe and the
State of Louisiana, the Tribe expressly reserved its tribal sovereign immunity
with respect to patrons’ disputes arising from the Paragon Casino’s refusal
to award or pay alleged winnings. See Tribal-State Compact at § 14(A).
* * *
Shannon Dotson was a patron at the Paragon Casino Resort. He
alleges that his slot machine stopped and displayed “20 5,” which he claims
entitled him to a $20,500,000 jackpot. Dotson says that he pressed the
machine’s service button to claim his winnings; he further asserts that Lori
Piazza, a Paragon Casino employee, arrived at his slot machine, told him that
he had not won, cashed him out, and then took his ticket. Dotson then avers
2
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that he asked to speak with a manager; Ms. Vocarro and Bobby Pierite, two
of Piazza’s supervisors, arrived. Dotson claims that Vocarro and Pierite, as
well as other casino employees, said they could not find a “20 5” code in the
slot machine manual and, when they ran a code scan, no code with “20 5”
showed up. Dotson appeared before the Tunica-Biloxi Gaming Board to
present his case, and the Board ruled against him.
Dotson then brought this suit pro se under 42 U.S.C. § 1983, § 706 of
the Civil Rights Act of 1964, 18 U.S.C. § 1964 (civil RICO), Bivens, the
Federal Tort Claims Act, and the “eggshell skull rule.” Dotson alleges that
the Gaming Commission, Piazza, Vocarro, and other defendants violated
gaming regulations and laws, fabricated evidence, falsified documents,
defamed him, lied under oath, and falsified error codes in the slot machine. 1
The Gaming Commission filed a motion to dismiss under Rule
12(b)(1), asserting tribal sovereign immunity, or, in the alternative, a motion
for a more definite statement. Piazza and Vocarro filed a motion to dismiss
for failure to effect service under Federal Rules of Civil Procedure 4(m),
12(b)(5), and 41(b), as well as under Local Rule 41.3. The magistrate judge
issued a report and recommendation, finding that the Gaming Commission
was an agency and arm of the Tribe and thus entitled to sovereign immunity.
The magistrate judge also found that Dotson had not served Piazza and
Vocarro and had not shown good cause for his failure to serve them under
Rule 4(m). Thus, the magistrate judge recommended that the claim against
1
In addition to naming the Gaming Commission, Piazza, and Vocarro as
defendants, Dotson also sued an unnamed supervisor, Sheila Augustine, Ms. Camilla,
Bobby Pierite, Catherine Pierite, Cheryl Barbry, and Aubery Newman. The magistrate
judge recommended dismissing Dotson’s action against these defendants for lack of
service, but the district court did not specifically mention these defendants in its dismissal.
However, on appeal, Dotson does not claim to have effected service on any of these
defendants.
3
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the Gaming Commission be dismissed with prejudice and the claim against
Piazza and Vocarro be dismissed without prejudice. The district court
adopted the magistrate judge’s R&R and dismissed with prejudice Dotson’s
claims against the Gaming Commission, Piazza, and Vocarro.2 Dotson
appealed.
II
We review a district court’s dismissal for lack of subject-matter
jurisdiction de novo. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001). We review a district court’s dismissal for failure to timely effect
service for abuse of discretion. Thrasher v. City of Amarillo, 709 F.3d 509, 511
(5th Cir. 2013).
III
Dotson raises two issues on appeal. First, he claims that the district
court erred in granting the Gaming Commission’s motion to dismiss based
on tribal sovereign immunity. Second, he argues that the district court erred
in granting Piazza and Vocarro’s motion to dismiss under Rules 4(m),
12(b)(5), and 41(b) and Local Rule 41.3. We address each in turn.
A
Tribes possess “common-law immunity from suit,” subject only to
Congress’s plenary control. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,
788 (2014) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)).
This doctrine of tribal sovereign immunity is “settled law.” Id. at 789
(quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998)).
2
The district court also denied as moot: The Gaming Commission’s alternative
motion for a more definite statement; Dotson’s motion for issuance of subpoena duces
tecum; and the Commission’s motion to quash.
4
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Accordingly, absent congressional authorization or waiver, a court must
dismiss a suit against a tribe for lack of subject-matter jurisdiction. Id.Moreover, tribal sovereign immunity shields not only the tribe itself but also
“an arm or instrumentality” of the tribe. Lewis v. Clarke, 137 S. Ct. 1285,
1290 (2017) (citation omitted).
Applying these principles to this case, the Tunica-Biloxi Tribe is
immune from suit, and the Tribe’s immunity extends to the Gaming
Commission, an arm of the Tribe. Plus, Congress has not authorized suit, and
the Tribe has expressly reserved its immunity from suit in contested-
winnings disputes brought by patrons. Thus, the Gaming Commission is
shielded from suit, and the district court did not err in dismissing the claims
against the Gaming Commission for lack of subject-matter jurisdiction.
Dotson’s arguments to the contrary fail. Although Dotson
acknowledges that the Tribe is immune from suit, he argues that the Gaming
Commission, as an agency of the Tribe, does not enjoy this same immunity.
But this argument conflicts with the principle of sovereign immunity that “an
arm or instrumentality of the State generally enjoys the same immunity as the
sovereign itself.” Lewis, 137 S. Ct. at 1290 (citation omitted). Dotson also
argues that tribal sovereign immunity can be circumvented by seeking an
injunction against a specific official: He claims his suit is not against the Tribe
but rather against the “Paragon Casino employee that was violating Federal
Gaming Regulation Laws.” However, the question of the Tribe’s—and, by
extension, the Gaming Commission’s—sovereign immunity is independent
of the question of whether individual capacity suits may be brought against
5
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tribal officials. Because only the former is at issue here and the Tribe and
Gaming Commission enjoy sovereign immunity, Dotson’s argument fails.3
B
We next address Dotson’s arguments regarding the dismissal of his
claims against Piazza and Vocarro for failure to timely effect service of
process. Rule 4(m) requires a court to dismiss an action without prejudice if
the defendant is not served within 90 days after the complaint is filed. Fed.
R. Civ. P. 4(m). However, “if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.” Id. And
“[e]ven if the plaintiff lacks good cause, the court has discretion to extend
the time for service.” Thrasher, 709 F.3d at 511.
The plaintiff bears the burden of proving good cause for failure to
effect timely service. Id. This proof requires “at least as much would be
required to show excusable neglect, as to which simple inadvertence or
mistake of counsel or ignorance of the rules usually does not suffice.” Id.
(quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th
Cir. 1985)). Plus, the plaintiff must also show good faith and “some
reasonable basis for noncompliance” with timely service. Id. (quoting
Winters, 776 F.2d at 1306). If the district court exercises its discretion and
dismisses an action with prejudice, “we must find a delay longer than just a
few months; instead, the delay must be characterized by significant periods
of total inactivity” to justify this “extreme sanction.” Id. at 512–13 (cleaned
up).
3
Dotson also argues that the district court erred in dismissing the claims against
the Gaming Commission because he effected service on parties. However, this argument
conflates the court’s subject-matter jurisdiction with separate jurisdictional issues.
Accordingly, this argument also fails.
6
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The district court did not abuse its discretion in concluding that
Dotson had failed to show good cause for his failure to effect timely service
and in dismissing his action with prejudice. Approximately eight months
passed between Dotson’s filing of his complaint and the reissuance of
summons to Piazza and Vocarro, which were returned unexecuted. During
those eight months, Dotson made no effort to serve Piazza or Vocarro.
Moreover, during that eight-month period, Dotson was granted an extension
of time to effect service and two received two notices of the district court’s
intent to dismiss his case for failure to prosecute under Local Rule 41.3. After
Dotson’s suit was dismissed for failure to effect service and then reopened,
the district court granted Dotson yet another extension of time to complete
service by June 15, 2019. Dotson fails to show good cause for these delays.
Both of his arguments that good cause exists—the alleged theft was a
“traumatizing experience” and “Cindy or Christy Smith sabotage[d] the
summons”—are insufficient proof to meet his burden. Moreover, the district
court’s decision to impose the extreme sanction of dismissal with prejudice
was warranted here because there is a “clear record of delay” that was caused
by Dotson himself. See Thrasher, 709 F.3d at 514 (considering a clear record
of delay plus one of three aggravating factors as grounds for affirming
dismissals with prejudice).
Dotson argues that the district court abused its discretion in
dismissing his claims against Piazza and Vocarro because he claims that he
effectively served them on June 14, 2019. That day, Dotson’s process server
requested that Christy Smith, the Clerk of Court for the Tunica-Biloxi Tribal
Court, serve summons on the Gaming Commission, Piazza, and Vocarro.
Smith determined that the summons issued to Piazza could not be served
because Piazza was no longer employed at the Paragon Casino Resort and the
summons issued to Vocarro could not be served because it lacked the
defendant’s full name. Both summonses were then returned by mail to
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Dotson; neither Piazza nor Vocarro were served. Moreover, Dotson’s
attempt at service was defective under Rule 4(e) because Smith is not an
authorized agent for service for either Piazza or Vocarro.4 Dotson’s argument
thus fails.
IV
For all these reasons, we AFFIRM the district court’s dismissal of
Dotson’s claims against the Gaming Commission, Piazza, and Vocarro.
4
As Clerk of Court, Smith receives documents that are requested to be served
through the Tribal Police. After reviewing the documents to determine if they are
sufficient, she forwards them to the Tribal Police for service.
8