Garcia v. United Auburn Indian Community et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this action be dismissed signed by Magistrate Judge Gregory G. Hollows on 6/20/12. F&R referred to Judge Kimberly J. Mueller. Objections to F&R due within fourteen (14) days. (Kaminski, H)
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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,
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vs.
No. CIV. S-11-2552 KJM GGH PS
UNITED AUBURN INDIAN
COMMUNITY, et al.,
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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff is proceeding in this action pro se and in forma pauperis pursuant to 28
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U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302(21), pursuant to
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28 U.S.C. § 636(b)(1). After having previously informed plaintiff of the deficiencies in his
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complaint, the court has now reviewed the amended complaint.
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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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In the previous order, the undersigned advised plaintiff that most of his claims
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would have to be dismissed and provided authority in support. Plaintiff was permitted to amend,
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but he has continued to allege claims for which there is either no private right of action, which
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are barred by tribal immunity, or which allege state law claims only.
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The amended complaint alleges that defendants United Auburn Indian
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Community, Station Casinos, Inc., Analytical Environmental Services (“AES”), and Wildlands,
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Inc. engaged in “defamatory and intimidating practices against Plaintiff from June of 2006
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through June of 2009 culminating in the retaliatory, wrongful firing of Plaintiff on July 5, 2009,
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in order to protect themselves from discovery and prosecution of widespread violations of State
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and Federal animal cruelty statutes as well as the Migratory Bird Treaty Act.” (Compl. at 1.)
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Plaintiff’s second claim concerns defendants’ “cruel and negligent treatment of a federally
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protected species,” the Cliff Swallows. (Id. at 2-3.) Plaintiff has now, in his amended complaint,
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described defendants’ actions concerning the swallows in much detail; however, his action must
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be dismissed for the same reasons stated in response to the complaint, which are repeated here.
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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 amended complaint alleges: “I was also told, by a human
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resources representative at Thunder Valley Casino, that I had no recourse with the retaliatory
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termination ‘because we can fire who (sic) we want.’” (Compl. at 1.) “[T]he settled law of our
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circuit is that tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity
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granted to a tribe itself.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725 (9th Cir.
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2008). A tribe only waives its sovereign immunity when it expressly and clearly states such
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intent. See C. & L. Enterprises. Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532
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U.S. 411, 418 (2001). Tribal immunity may also be abrogated by Congress, but that purpose
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must be “unequivocally” expressed. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
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In 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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The original complaint did not describe defendants AES or Wildlands, Inc., and
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the court could not previously determine whether these companies acted as arms of the Tribe. It
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is now apparent from the amended complaint that AES is an environmental company that may
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have been hired by Thunder Valley Casino to maintain the bird sanctuary on the casino property.
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(FAC, dkt. no. 7-1 at 24.) Wildlands, Inc. is a company that plaintiff apparently contacted
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regarding “using the deeded property adjacent to the casino for an alternative nesting site for the
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Thunder Valley swallows.” (Id., dkt. no. 7 at 12.) Therefore, as these two companies did not
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employ plaintiff, he must allege some other theory against them, and on amendment he has failed
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to do so. The conclusory allegation that they engaged in defamatory and intimidating practices
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against plaintiff, and that they were in a “collusive process” does not state a claim. To the extent
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that plaintiff seeks to state a claim for defamation, it will be dismissed because it is a state law
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claim. There being no other independent basis for federal subject matter jurisdiction, this action
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should be dismissed. This is because a federal court is a court of limited jurisdiction, and may
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adjudicate only those cases authorized by the Constitution and by Congress. See Kokkonen v.
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Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1
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provides that the judicial power of the United States is vested in the Supreme Court, “and in such
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inferior Courts as the Congress may from time to time ordain and establish.” Congress therefore
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confers jurisdiction upon federal district courts, as limited by U.S. Const. Art. III, § 2. See
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Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S. Ct. 2206, 2212 (1992). Lack of subject
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matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust
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v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th 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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Accordingly, IT IS RECOMMENDED that this action be dismissed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these findings and recommendations, any party may
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file written objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the
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objections shall be served and filed within seven (7) days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 20, 2012
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Garcia2552.fr.wpd
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