Contreraz v. Salazar et al

Filing 8

ORDER: (1) granting 7 Motion for Leave to Proceed in forma pauperis; and (2) dismissing action for lack of subject matter: Plaintiff is granted 45 days from the date this Order is "Filed" in which to file an amended complaint which addresses each deficiency of pleading. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Irma E. Gonzalez on 6/9/11. (All non-registered users served via U.S. Mail Service)(lmt)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

8
9
10
11
12

LOFOFORA EVA CONTRERAZ
aka MIKE CONTRERAZ,
CDCR # C-45857

Civil
No.
Plaintiff,

13

vs.

(2) DISMISSING ACTION FOR
LACK OF SUBJECT MATTER
JURISDICTION

16
17

ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
and

14
15

11cv0265 IEG (PCL)

KEN SALAZAR; M. SHARON
BLACKWELL; DOE 1; DOES,

18
Defendants.
19
20
21

Plaintiff,1 a state inmate currently incarcerated at the California State Prison - Substance

22

Abuse and Treatment Facility located in Corcoran, California, and proceeding pro se, has filed

23

a civil rights Complaint. Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”)

24

pursuant to 28 U.S.C. § 1915(a).

25

///

26
27
28

1

The Court notes that Plaintiff has filed actions under several different names. In addition to
filing this action as Lofofora Eva Contreraz, Plaintiff has also filed actions under the name of Michael
Contreraz, Michael Contreras and Jihad Contreras. See Contreras v. Townsend, et al., S.D. Cal. Civil
Case No. 94-0732 R (POR); see also Contreras v. Vasquez, et al., N. Cal. Civil Case No. 92-3316 FMS.
1

11cv0265 IEG (PCL)

1

I.

M OTION TO P ROCEED IFP

2

All parties instituting any civil action, suit or proceeding in a district court of the United

3

States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

4

U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay only if the party is

5

granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493

6

F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

7

Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in

8

installments, regardless of whether the action is ultimately dismissed for any reason. See 28

9

U.S.C. § 1915(b)(1) & (2).

10

The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C.

11

§ 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to

12

28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2. Plaintiff’s trust account statement shows that

13

he has insufficient funds from which to pay an initial partial filing fee.

14

Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 7] and

15

assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the Court further

16

orders the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”)

17

to garnish the entire $350 balance of the filing fees owed in this case, collect and forward them

18

to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

19

§ 1915(b)(1).

20

II.

S CREENING P URSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

21

The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915 also

22

obligate the Court to review complaints filed by all persons proceeding IFP and by those, like

23

Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

24

adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

25

probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.”

26

See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua

27

sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof,

28

which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who
2

11cv0265 IEG (PCL)

1

are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-

2

27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir.

3

2000) (§ 1915A).

4

Plaintiff is a state inmate who has been incarcerated since 1980 and serving a “life”

5

sentence. (Compl. at 2.) Plaintiff claims to be a “Kupangah Indian of the Kupa people” and he

6

is “formally enrolled in the Pala Band of Missions Indians.” (Id.) Since 2001, the Pala Band

7

has operated a gambling casino and adopted a “Plan for the Allocation of Gaming Revenue” that

8

was approved by the Bureau of Indian affairs as required by the Indian Gaming Regulatory Act

9

(“IGRA”). (Id.) In 2007, this plan was amended to provide that incarcerated members of the

10

tribe would not receive revenue from the gambling proceeds until they were released from

11

prison. (Id. at 5-6). Plaintiff is bringing this action as an incarcerated member of the tribe

12

arguing that he should be entitled to the proceeds as a member of the tribe while incarcerated.

13

(Id.).

14

The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of New

15

York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until

16

it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a Better Env’t., 523 U.S.

17

83, 94 (1998). Whether federal jurisdiction exists is governed by the well-pleaded complaint

18

rule.

19

question must be “presented on the face of plaintiff’s properly pleaded complaint.” Id.; accord

20

Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002).

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, the federal

21

Here, Plaintiff states an intention to sue Ken Salazar as the Secretary of the United States

22

Department of Interior and M. Sharon Blackwell, the Deputy Commissioner of Indian Affairs

23

under the IGRA. (See Compl. at 1-2.) However, the IGRA does not provide a private cause of

24

action for Plaintiff’s claims. See Hein v. Capitan Grande Bank of Dieguene Mission Indians,

25

201 F.3d 1256, 1260-61 (9th Cir. 2000) (holding that “IGRA provides no general private right

26

of action.”). Accordingly, Plaintiff’s Complaint must be dismissed.

27

///

28

///
3

11cv0265 IEG (PCL)

1

III.

C ONCLUSION AND O RDER

2

Good cause appearing, IT IS HEREBY ORDERED:

3

1.

4
5

Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 7] is

GRANTED.
2.

The Secretary of California Department of Corrections and Rehabilitation, or his

6

designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee

7

owed in this case by collecting monthly payments from the account in an amount equal to twenty

8

percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court

9

each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

10

ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

11

ASSIGNED TO THIS ACTION.

12

3.

The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

13

Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,

14

Sacramento, California 95814.

15

IT IS FURTHER ORDERED that:

16

4.

17
18

The case is DISMISSED without prejudice for lack of subject matter jurisdiction.

See F ED.R.C IV.P. 12(h)(3).
5.

Plaintiff is granted forty five (45) days from the date this Order is “Filed” in which

19

to file an amended complaint which addresses each deficiency of pleading noted above.

20

Plaintiff’s Amended Complaint must be complete in itself without reference to the superseded

21

pleading. See S.D. C A. C IV.LR. 15.1. Defendants not named and all claims not re-alleged in the

22

Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565,

23

567 (9th Cir. 1987).

24
25

IT IS SO ORDERED.
DATED: June 9, 2011

26
27

IRMA E. GONZALEZ, Chief Judge
United States District Court

28
4

11cv0265 IEG (PCL)