U.S. District Court, Western District of N.Y. Case Summaries July

Daily Record (Rochester, NY), Jul 10, 2008

U.S. District Court, Western District of N.Y.

Administrative

Procedure Act

Indian Gaming

Citizens Against Casino Gambling

in Erie County v. National Indian

Gaming Commission

07-CV-0451S

Judge Skretny

Background: The plaintiffs filed this action in July 2007 challenging the National Indian Gaming Commission's decision to approve a Class III Gaming Ordinance enacted by the Seneca Nation on June 9, 2007. The NIGC's approval permits the SNI to operate a gambling casino in the City of Buffalo on land purchased by the tribe in 2005. The plaintiffs challenge the NIGC's conclusion that certain SNI-owned parcels in Buffalo are "Indian lands," as the term is defined in the IGRA. Secondly, they challenge the NIGC's determination that the Buffalo parcel was acquired "as part of the settlement of a land claim," therefore excepted from the IGRA's general prohibition on gaming on lands acquired after Oct. 17, 1988. The defendants moved to dismiss, arguing the plaintiffs lack standing to sue.

Ruling: The court finds one or more plaintiffs have standing to sue and the court has subject matter jurisdiction over the dispute. As a matter of law, the Buffalo parcel is "Indian land" within the meaning of the IGRA; however, the land was not acquired "as part of the settlement of a land claim," and this exception to the IGRA's general prohibition against gaming on land acquired after Oct. 17, 1988 does not apply to make the parcel gaming-eligible. The NIGC chairman's July 2, 2007 administrative decision approving the Seneca Nation of Indians Class III Gaming Ordinance is vacated.

Cornelius D. Murray of O'Connell & Aronowitz PC et al, for the plaintiffs, and Gina Louise Allery, Department of Justice, for the defendant

Prisoner

Civil Rights

[section]1983 Liability -- Individual Capacity

Gilliam v. Goord

05-CV-6429L

Judge Larimer

Background: The plaintiff, a former inmate, brought action alleging violations of his rights under the Constitution relating to the use of excessive force. The defendants moved for summary judgment. The plaintiff has not responded to the motion even though he called the clerk to update his address just before this motion was filed. The defendants contend the complaint should be dismissed based on the plaintiff's failure to exhaust administrative remedies as required by the Prisoner Litigation Reform Act.

Ruling: The court concludes the plaintiff's excessive-force claim must be dismissed for failure to comply with the PLRA's exhaustion requirement. Additionally, there is no liability under [section]1983 under a theory of respondeat superior and the plaintiff's claim is against the commissioner who personally was uninvolved in the actions on which the plaintiff's complaint is centered. The defendant's motion is granted and the suit is dismissed.

Darryl Gilliam, pro se, and J. Richard Benitez, of the New York State Attorney General's Office, for the defendants