Garcia v. United Auburn Indian Community et al

Filing 4

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/19/11 ORDERING that plaintiff's 2 Motion to Proceed IFP is GRANTED; plaintiff's 1 Complaint is DISMISSED with leave to file an amended complaint within 28 days from the date of service of this Order. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRIAN GARCIA,

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Plaintiff,
vs.

No. CIV. S-11-2552 KJM GGH PS

UNITED AUBURN INDIAN
COMMUNITY, et al.,

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Defendants.

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ORDER
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Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule

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72-302(21), pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an affidavit making the showing required by 28 U.S.C.
§ 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

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The determination that plaintiff may proceed in forma pauperis does not complete

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the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case

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at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519,

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520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th

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Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se

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plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before

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dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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The complaint alleges that defendants United Auburn Indian Community, Station

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Casinos, Inc., Analytical Environmental Services (“AES”), and Wildlands, Inc. engaged in

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“retaliatory, wrongful firing of Plaintiff on July 5, 2009, in order to protect themselves from
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discovery and prosecution of widespread violations of State and Federal animal cruelty statutes

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as well as the Migratory Bird Treaty Act.” (Compl. at 1.) Plaintiff’s second claim concerns

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defendants’ “cruel and negligent treatment of a federally protected species,” the Cliff Swallows.

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(Id. at 2-3.) Plaintiff does not state what AES and Thunder Valley have done to violate the

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MBTA, other than to assert his objection to their “management” of the swallows. (Id. at 3.)

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In regard to the MBTA claim, this Act is primarily a criminal statute and does not

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authorize a private right of action. Turtle Island Restoration Network v. U.S. Dept. of

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Commerce, 438 F.3d 937, 942 (9th Cir. 2006); City of Sausalito v. O’Neill, 386 F.3d 1186,1203

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(9th Cir. 2004). Although the MBTA may be enforced under the Administrative Procedure Act,

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the only proper defendant under that Act is an agency of the United States. Id.; 5 U.S.C. §

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701(b)(1). As plaintiff has not named any agency of the United States as a defendant, this claim

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must be dismissed.

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Plaintiff concedes that the “MBTA is only enforceable through the Department of

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the Interior,” but seems to request that the court resolve the matter anyway. To the extent that the

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complaint can be construed to seek an investigation into the mishandling of Cliff Swallows, such

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a remedy is not available in this forum. See White v. City of Toledo, 217 F.Supp.2d 838, 841

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(N.D. Ohio 2002) (internal citation and quotation marks omitted) (noting that “the law is also

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clear that there is no constitutional, statutory, or common law right that a private citizen has to

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require a public official to investigate or prosecute a crime”).

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In regard to the claim of wrongful termination, the complaint alleges that all four

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defendants participated in this retaliatory conduct. It appears that plaintiff was employed by

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Thunder Valley Casinos because the complaint alleges: “I was told, by a human resources

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representative at Thunder Valley Casino, that I had no recourse with the retaliatory termination

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‘because we can fire who (sic) we want.’” (Compl. at 1.) “[T]he settled law of our circuit is that

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tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a

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tribe itself.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725 (9th Cir.2008). A tribe
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only waives its sovereign immunity when it expressly and clearly states such intent. See C. & L.

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Enterprises. Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418

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(2001). Tribal immunity may also be abrogated by Congress, but that purpose must be

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“unequivocally” expressed. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). In

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order for plaintiff to proceed in federal court, his wrongful termination must be brought under

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Title VII of the Civil Rights Act. Congress has clearly stated, however, that this Act has no

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application to federally recognized Indian Tribes. See Dawavendewa v. Salt River Project Agr.

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Imp. and Power District, 276 F.3d 1150, 1159 (9th Cir.2002). Because both the Tribe and

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Congress have not waived the Tribe’s immunity from suit, plaintiff is barred as a matter of law

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from proceeding with this action against the Tribe or the Casino.

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Plaintiff has not described defendants AES or Wildlands, Inc., and therefore the

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undersigned can not determine whether these companies acted as arms of the Tribe.

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Furthermore, if they did not employ plaintiff, he must allege some other theory against them.

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The conclusory allegation that they engaged in defamatory and intimidating practices against

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plaintiff does not state a claim. If plaintiff seeks to state a claim for defamation, it will most

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likely be dismissed because it is a state law claim. There being no other independent basis for

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federal subject matter jurisdiction, it will be dismissed. This is because a federal court is a court

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of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by

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Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S. Ct. 1673, 1675

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(1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United States is vested in

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the Supreme Court, “and in such inferior Courts as the Congress may from time to time ordain

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and establish.” Congress therefore confers jurisdiction upon federal district courts, as limited by

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U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S. Ct. 2206,

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2212 (1992). Lack of subject matter jurisdiction may be raised at any time by either party or by

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the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th

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Cir. 1996).
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The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal

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question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject

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matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J.

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Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible

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assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v.

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Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial as

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to be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v.

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Lavine, 415 U.S. 528, 537-38, 94 S. Ct. 1372, 1379-80 (1974).

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For the aforementioned reasons, the complaint must be dismissed. Plaintiff will

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be given the opportunity to file an amended complaint that states a federal claim. If plaintiff

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chooses to amend the complaint, plaintiff must set forth the jurisdictional grounds upon which

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the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further, plaintiff must demonstrate how

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the conduct complained of has resulted in a deprivation of plaintiff’s federal rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint should contain facts which lead to the

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ultimate conclusion that a specific law has been violated, by whom, and when.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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IT IS ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff’s complaint is dismissed for the reasons discussed above, with leave to

4 file an amended complaint within twenty-eight (28) days from the date of service of this Order.
5 Failure to file an amended complaint will result in a recommendation that this action be
6 dismissed.
7 DATED: December 19, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Garcia2552.amd.wpd

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