NEPTUNE v. NICHOLAS SR et al
REPORT AND RECOMMENDED DECISION re 1 Complaint filed by CHARLES B NEPTUNE. Objections to R&R due by 4/7/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CHARLES B. NEPTUNE,
WILLIAM NICHOLAS SR., et al.,
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e)
In this action, Plaintiff Charles Neptune alleges William Nicholas, Sr., Chief of the
Passamaquoddy Tribe, violated Plaintiff’s rights under the Privacy Act of 1974 by
disclosing certain information regarding Plaintiff’s elver fishing activity.
Plaintiff filed an application to proceed in forma pauperis (ECF No. 3), which
application the Court granted. (ECF No. 4.) In accordance with the in forma pauperis
statute, a preliminary review of Plaintiff’s complaint is appropriate.
28 U.S.C. §
Following a review of the complaint in accordance with 28 U.S.C. § 1915(e)(2), I
recommend the Court dismiss Plaintiff’s complaint.
STANDARD OF REVIEW
When a party is proceeding in forma pauperis, “the court shall dismiss the case at
any time if the court determines,” inter alia, that the action is “frivolous or malicious” or
“fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so
as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The relevant question
... in assessing plausibility is not whether the complaint makes any particular factual
allegations but, rather, whether ‘the complaint warrant[s] dismissal because it failed in toto
to render plaintiffs’ entitlement to relief plausible.’”
Rodríguez–Reyes v. Molina–
Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), the complaint
may not consist entirely of “conclusory allegations that merely parrot the relevant legal
standard,” Young v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti
v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to
the pleadings of pro se plaintiffs “is not to say that pro se plaintiffs are not required to plead
basic facts sufficient to state a claim”).
Plaintiff alleges that Chief William Nicholas of the Passamaquoddy Tribe and
“Passamaquoddy Tribe Indian Township” violated his rights under the federal Privacy Act
Specifically, Plaintiff alleges that Defendants made available for public
inspection records of Plaintiff’s elver fishing landing reports, which reveal the location
from which Plaintiff obtained his “catch.” Plaintiff asserts that as the result of Defendants’
actions, he has been deprived of future earnings.
“Federal courts are courts of limited jurisdiction. They cannot act in the absence of
subject matter jurisdiction, and they have a sua sponte duty to confirm the existence of
jurisdiction in the face of apparent jurisdictional defects.” United States v. Univ. of Mass.,
Worcester, 812 F.3d 35, 44 (1st Cir. 2016). In this case, Plaintiff, a Maine resident, has
asserted a claim against two Maine residents. Akins v. Penobscot Nation, 130 F.3d 482,
485 (“Although Indian tribes are not usually subject to the diversity jurisdiction of the
federal courts, the [Maine Indian Claims] Settlement Act [of 1980] subjects Maine tribes
to diversity jurisdiction”).2 Because both Plaintiff and Defendants are Maine residents,
The facts set forth herein are derived from Plaintiff’s complaint.
The Maine Indian Claims Settlement Act provides in relevant part:
The Passamaquoddy Tribe … and all members thereof … may sue and be sued in the
Courts of …. the United States to the same extent as any other entity or person residing in
the State of Maine may sue and be sued in [that] court.
25 U.S.C. § 1725(d)(1) (omitted from published code), available at https://www.gpo.gov/.
Plaintiff has not alleged the diversity of citizenship necessary for diversity jurisdiction. 28
U.S.C. § 1332.
Plaintiff evidently attempts to invoke the Court’s federal question jurisdiction by
seeking recovery for an alleged violation of the Privacy Act of 1974, 5 U.S.C. § 552. The
Privacy Act of 1974 “generally prohibits disclosure of personal records without the
individual’s written consent.” Fed. Labor Relations Auth. v. U.S. Dep’t of Navy, 941 F.2d
49, 55 (1st Cir. 1991). The Act authorizes individuals to file civil actions in federal district
courts against federal agencies, and it subjects the United States to liability where the court
determines that the federal agency intentionally or willfully violated the Act’s requirements
causing “actual damages.” F.A.A. v. Cooper, 566 U.S. 284, 295 (2012); Doe v. Chao, 540
U.S. 614, 616 (2004)); 5 U.S.C. § 552a(g)(1), (4), (5).
Significantly, the Privacy Act applies only to federal agencies. 5 U.S.C. §§ 552,
552a(a)(1). “Agency” is a defined term meaning, subject to certain exceptions, “each
authority of the Government of the United States,” id. § 551(1), including “any executive
department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government (including
the Executive Office of the President), or any independent regulatory agency.” Id. §
552(f)(1). Native American Tribes and their officials are not included among the entities
that qualify as agencies of the United States. See, e.g., Stevens v. Skenandore, 234 F.3d
1274 (2000) (Table) (finding “no private right of action against tribe officials for violations
of the Privacy Act, which applies only to federal government agencies”).
Because Plaintiff cannot bring a Privacy Act claim against the Passamaquoddy
Tribe or Chief Nicholas, and because Plaintiff has not asserted a claim within the Court’s
diversity jurisdiction, Plaintiff has failed to state a claim for relief within the Court’s subject
matter jurisdiction. Accordingly, Plaintiff cannot proceed on his claim in this Court.
Based on the foregoing analysis, pursuant to 28 U.S.C. § 1915(e)(2), I recommend
the Court dismiss Plaintiff’s complaint.
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. Section 636(b)(1)(B) for which de novo review by the
district court is sought, together with a supporting memorandum, within
fourteen (14) days of being served with a copy thereof. A responsive
memorandum shall be filed within fourteen (14) days after the filing of the
objection. Fed. R. Civ. P. 72(b)(2).
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 24th day of March, 2017.
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