Aholelei v. Department of Public Safety

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM S. AHOLELEI, 
Plaintiff-Appellant,
v.
DEPARTMENT OF PUBLIC SAFETY, No. 06-15086
State of Hawaii; JOHN F. PEYTON;
FRANK LOPEZ; EDWIN SHIMODA;  D.C. No.
CV 04-00414-SOM
CLAYTON FRANK; RANDY ASHER;
ERIC TANAKA; GARY KAPLAN; MAY OPINION
ANDRADE; CINDA SANDIN;
ATTORNEY GENERAL OF THE
STATE OF HAWAII,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding

Argued and Submitted
January 10, 2007—San Francisco, California

Filed May 25, 2007

Before: Procter Hug, Jr. and William A. Fletcher,
Circuit Judges, and H. Russel Holland,* District Judge.

*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.

6245
6248 AHOLELEI v. DEP’T OF PUBLIC SAFETY
COUNSEL

Sean D. Unger, Paul, Hastings, Janofsky & Walker LLP, San
Francisco, California, argued the case for the plaintiff-
appellant. Peter Meier, Paul, Hastings, Janofsky & Walker
LLP, San Francisco, California, was also on the brief.

Kimberly Tsumoto Guidry, Deputy Attorney General, Hono-
lulu, Hawaii, argued the case for the defendants-appellees.
Mark J. Bennett, Attorney General of Hawaii, and Girard D.
Lau, Deputy Attorney General, Honolulu, Hawaii, were also
on the brief.

OPINION

HOLLAND, Judge:

Before us is the sole issue of whether the State of Hawaii
Department of Public Safety and ten State officials who are
sued in their official capacities (“the State defendants”) have
waived sovereign immunity as regards appellant William S.
Aholelei’s state law claims.1 We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm the district court’s grant of
summary judgment on sovereign immunity grounds.

I

In October 2003, appellant William S. Aholelei was beaten
by other inmates while incarcerated in a state prison in
Hawaii. On July 9, 2004, proceeding pro se, Aholelei filed a
complaint against the State defendants and others. Here, we
1
Aholelei’s other claims against the State defendants and his claims
against the defendants sued in their individual capacities were addressed
in a memorandum disposition issued on February 14, 2007. Nothing in
this opinion affects that disposition.
 AHOLELEI v. DEP’T OF PUBLIC SAFETY 6249
are only concerned with Aholelei’s state law negligence
claims for money damages against the State defendants.

The State defendants asserted sovereign immunity as an
affirmative defense to Aholelei’s complaint. Subsequently, all
defendants moved for leave to file a third-party complaint
against the inmates who had attacked Aholelei. The district
court granted the defendants’ motion, and a third-party com-
plaint was filed on September 23, 2005. The State of Hawaii
is expressly named as a third-party plaintiff in the third-party
complaint. The third-party complaint sought indemnification
or contribution from the third-party defendants.

On October 10, 2005, all defendants moved for summary
judgment on all claims. The State defendants argued that they
were entitled to sovereign immunity on Aholelei’s state law
claims. Aholelei did not argue that the State defendants had
waived their sovereign immunity. At oral argument on the
motion for summary judgment, defense counsel told the dis-
trict court that the third-party complaint would be withdrawn
if summary judgment were granted. The district court granted
summary judgment in favor of all defendants on all claims. It
held that Aholelei’s claims for money damages against the
State defendants in their official capacities were barred by the
Eleventh Amendment. Aholelei timely appealed, and this
court appointed counsel for purposes of the appeal.

II

We review questions of sovereign immunity de novo. Allen
v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006).
The issue of whether the defendants waived their sovereign
immunity was raised for the first time on appeal. As a general
rule, we do not consider an issue raised for the first time on
appeal, although we have the discretion to do otherwise.
Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). We
will exercise our discretion “when the issue presented is
purely one of law and either does not depend on the factual
6250 AHOLELEI v. DEP’T OF PUBLIC SAFETY
record developed below, or the pertinent record has been fully
developed.” Id. (quoting Bolker v. C.I.R., 760 F.2d 1039,
1042 (9th Cir. 1985)). The issue of whether the State defen-
dants waived their sovereign immunity is purely a legal issue
which can be decided on the record that has been developed
below. Thus, we will exercise our discretion and consider the
waiver issue.

III

[1] The Eleventh Amendment bars suits for money dam-
ages in federal court against a state, its agencies, and state
officials acting in their official capacities. See In re Pegasus
Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005); Pena v.
Gardner, 976 F.2d 469, 472 (9th Cir. 1992). “Eleventh
Amendment immunity is an affirmative defense that must be
raised ‘early in the proceedings’ to provide ‘fair warning’ to
the plaintiff.” Demshki v. Monteith, 255 F.3d 986, 989 (9th
Cir. 2001) (quoting Hill v. Blind Indus. & Servs. of Md., 179
F.3d 754, 761 (9th Cir. 1999), amended by 201 F.3d 1186 (9th
Cir. 2000)) (internal citation omitted). Because it is an affir-
mative defense, it can be waived. Id. “The test employed to
determine whether a state has waived immunity ‘is a stringent
one.’ ” In re Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002)
(quoting In re Mitchell, 209 F.3d 1111, 1117 (9th Cir. 2000)).
“A state generally waives its immunity when it ‘voluntarily
invokes [federal] jurisdiction or . . . makes a ‘clear declara-
tion’ that it intends to submit itself to [federal] jurisdiction.’ ”
Id. (quoting In re Lazar, 237 F.3d 967, 976 (9th Cir. 2001))
(alterations in original). “Express waiver is not required; a
state ‘waive[s] its Eleventh Amendment immunity by conduct
that is incompatible with an intent to preserve that immuni-
ty.’ ” Id. (quoting Hill, 179 F.3d at 758).

[2] Aholelei argues that the State defendants affirmatively
invoked federal court jurisdiction by filing the third-party
complaint. The issue of whether the filing of a third-party
 AHOLELEI v. DEP’T OF PUBLIC SAFETY 6251
complaint, without more,2 waives a state’s immunity is one of
first impression for this circuit.

Aholelei urges us to rely on Paul N. Howard Co. v. Puerto
Rico Aqueduct Sewer Authority, 744 F.2d 880 (1st Cir. 1984),
as persuasive out-of-circuit authority. There, the defendant
argued that it was an instrumentality of the government of
Puerto Rico and thus was immune from a suit for damages in
federal court. Id. at 882. The court rejected the defendant’s
argument, holding that, if the defendant were a governmental
instrumentality entitled to immunity, the defendant had
waived its immunity because it “not only appeared but filed
a counterclaim and a third-party complaint[.]” Id. at 886.

[3] We do not find Paul N. persuasive. There, at the time
the defendant filed its counterclaim and its third-party com-
plaint, it had not asserted an immunity defense. The defendant
raised its immunity defense for the first time on appeal. Id.
Here, the State defendants raised their immunity defense at
the first opportunity, when they answered Aholelei’s com-
plaint. Their answer was filed months before they moved for
leave to file the third-party complaint. Thus, when the third-
party complaint was filed, Aholelei already had fair warning
of the State defendants’ assertion of immunity. They then
reasserted their immunity defense in their motion for sum-
mary judgment.

[4] This is not a case in which the State defendants waited
to raise their immunity defense. We have previously found
that, in some circumstances, waiting to raise an immunity
defense results in a waiver of immunity. See Hill, 179 F.3d at
756 (state defendant waived immunity “by participating in
2
Aholelei also relies on the fact that the defendants filed a witness list.
This list was filed on behalf of all the defendants, not just the State defen-
dants, and was filed pursuant to the district court’s scheduling and plan-
ning order. It is not evidence of an intent by the State defendants to litigate
Aholelei’s claims on the merits.
6252 AHOLELEI v. DEP’T OF PUBLIC SAFETY
extensive pre-trial activities and waiting until the first day of
trial” to raise immunity defense); Bliemeister, 296 F.3d at 862
(state defendant waived immunity defense by failing to raise
it in answer, motion for summary judgment, or at oral argu-
ment at which court announced preliminary view of case
which was adverse to state defendant). There has been no
delay in this case. The State defendants raised their immunity
defense in answering and reasserted that defense on motion
for summary judgment.

The State defendants urge us to rely on Skelton v. Henry,
390 F.3d 614 (8th Cir. 2004), as persuasive out-of-circuit
authority. There, the defendants asserted their immunity in
their answer to the plaintiffs’ amended complaint and
included a counterclaim and a third-party complaint in the
same document. Id. at 617. The plaintiffs argued that the
defendants had waived their immunity because they filed a
counterclaim and a third-party complaint. Id. at 618. The
court held “that a counterclaim and third party complaint are
not sufficient to waive a claim of Eleventh Amendment
immunity asserted in the very same document.” Id. The court
reasoned that “[a] state is not required to give up other valid
defenses in order to preserve its immunity defense.” Id.

Unlike the defendants in Skelton, the State defendants in
this case did not assert their immunity in the same document
in which they asserted their third-party claims. This is, how-
ever, a distinction without a difference. The State defendants
in this case promptly asserted immunity in their answer and
never expressly abandoned this defense, although they subse-
quently also brought the third-party complaint. The focus of
our inquiry here is whether the State defendants’ assertion of
the third-party claims was incompatible with an intent to pre-
serve their immunity.

[5] We reject Aholelei’s contention that the filing of a
third-party complaint by the State defendants constituted an
invocation of federal jurisdiction which was incompatible
 AHOLELEI v. DEP’T OF PUBLIC SAFETY 6253
with an intent to preserve the defense of sovereign immunity.
The filing of the third-party complaint for indemnification or
contribution can best be viewed as an appropriate defense
strategy, that is, as a contingent claim asserted against third
parties. If the district court did not find that the State defen-
dants were entitled to sovereign immunity or otherwise find
for the defendants on Aholelei’s claims, then the third-party
complaint put all of the defendants in a position to seek con-
tribution from joint tortfeasors. If the district court found that
the State defendants had sovereign immunity, then their third-
party claims became moot, and in fact, the State defendants
withdrew their third-party claims once the district court
granted them summary judgment. State defendants, like other
defendants, are allowed to assert legitimate alternative
defenses. See Fed. R. Civ. P. 8(e)(2). We have “held that ‘[i]n
light of the liberal pleading policy embodied in Rule 8(e)(2)
. . . a pleading should not be construed as an admission
against another alternative or inconsistent pleading in the
same case.’ ” McCalden v. Cal. Library Ass’n, 955 F.2d 1214,
1219 (9th Cir. 1990) (quoting Molsbergen v. United States,
757 F.2d 1016, 1019 (9th Cir. 1985)) (alterations in original).
By filing the third-party complaint, the State defendants did
not give up the immunity defense that they had already
pleaded. The alternative pleading of a defensive claim against
other tortfeasors is not an invocation of federal jurisdiction
that is incompatible with an intent to preserve the State defen-
dants’ claim of sovereign immunity.

The State defendants did not choose to be in federal court.
They were brought into federal court by Aholelei. Their
defense posture was not inconsistent nor in conflict with the
assertion of sovereign immunity as a primary defense. Aho-
lelei and the district court were on notice that the State defen-
dants were asserting sovereign immunity. The State
defendants were not attempting to gain an unfair advantage by
pleading in the alternative. Here, we are not faced with an
unfair use of an immunity defense, as was the case in Lapides
6254 AHOLELEI v. DEP’T OF PUBLIC SAFETY
v. Board of Regents of the University System of Georgia, 535
U.S. 613 (2002).

In Lapides, Georgia removed the plaintiff’s case to federal
court. Id. at 616. While conceding that it had waived its sover-
eign immunity as to the plaintiff’s state law claims in state
court, Georgia nonetheless argued that it remained immune as
to those claims in federal court. Id. at 616-17. The Court held
that Georgia had waived its immunity by removing the case
to federal court because in doing so it voluntarily invoked the
federal court’s jurisdiction. Id. at 624. The Court reasoned
that it would be inconsistent to allow a State to invoke federal
court jurisdiction in order to remove a case but then allow the
State to deny federal court jurisdiction once the case was
removed. Id. at 619-20.

Unlike Georgia, the State defendants in this case did not
voluntarily invoke federal jurisdiction in order to get their
claims before the district court. They were already in federal
court because Aholelei had filed suit against them in federal
court. They filed the third-party complaint as a defensive
move to protect themselves should their immunity defense
fail. Pleading in the alternative is not an unfair litigation tac-
tic. Aholelei and the district court had fair warning that the
State defendants were asserting an immunity defense, and the
State defendants did not engage in any conduct during the
course of this litigation that manifested an intent to waive that
defense.

IV

[6] We hold that the State defendants did not waive their
sovereign immunity by filing the third-party complaint
because they had timely asserted immunity prior to filing the
third-party complaint and the third-party complaint was a
defensive move which was not incompatible with an intent to
preserve sovereign immunity. We therefore AFFIRM the dis-
 AHOLELEI v. DEP’T OF PUBLIC SAFETY 6255
trict court’s grant of summary judgment in favor of the State
defendants on sovereign immunity grounds.