Switzer v. BIA Crow Tribal Police

Filing 11

AMENDED ORDER. This Court's Order dated December 18, 2012 9 is VACATED. Switzer's Motions to Proceed in Forma Pauperis 1 , 7 are GRANTED. Switzer may file an amended complaint on or before January 18, 2012. Signed by Magistrate Carolyn S Ostby on 12/20/2012. Mailed to Switzer with amended complaint form. (TAG, )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WILLIAM ZARNEL SWITZER,

Cause No. CV 12-0115-BLG-RFC-CSO

Plaintiff,

ORDER

vs.
BIA CROW TRIBAL POLICE,
Defendants.

On November 19, 2012, this Court issued an Order requiring
Plaintiff William Switzer to resubmit his motion to proceed in forma
pauperis and to sign and refile his Complaint. DKT. 6. On December
11, 2012, Switzer complied with this Order. DKT 10. Initially, the
signed complaint was not properly docketed in this Court’s electronic
filing system. Based on this error, on December 18, 2012, the Court
entered an Order stating that Switzer had failed to comply with the
requirement that he submit a signed Complaint.
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Accordingly, the Court now vacates the December 18 Order and
enters this Order in its place. But for the deletion of the language
regarding a signed complaint, this Order is the same in substance as
the Order filed on December 18.
I. MOTIONS TO PROCEED IN FORMA PAUPERIS
Switzer indicates in his second Motion to Proceed in Forma
Pauperis that the only money he has received in the past twelve months
is disability payments. The Court finds this application sufficient to
make the showing required by 28 U.S.C. § 1915(a). Because it appears
Switzer lacks sufficient funds to prosecute this action, the Motions to
Proceed in Forma Pauperis will be granted.
II. PRESCREENING
A. Standard
As Switzer is proceeding in forma pauperis, the Complaint is
subject to screening under 28 U.S.C. § 1915A, which impose a screening
responsibility on the district court. Section 1915A(b) provides that the
Court may dismiss the complaint before it is served upon the
defendants if it finds that the complaint is “frivolous” or that it “fails to
state a claim upon which relief may be granted.” A complaint is
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frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim
upon which relief may be granted if a plaintiff fails to allege the
“grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)
(quotation omitted). Rule 8(a)(2) requires a complaint to “contain
sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(internal quotation marks omitted).
B. ANALYSIS
There are several deficiencies with the pending Complaint. First,
it is not clear who Switzer intends to name as defendants. Switzer
named “BIA Crow Tribal Police” as one defendant, but the Bureau of
Indian Affairs (BIA) is a separate entity from the Crow Tribal Police.
Secondly, the Bureau of Indian Affairs is a federal agency.
Sovereign immunity shields the United States and its agencies from
suit unless it has expressly waived such immunity. United States v.
Mitchell, 445 U.S. 535, 538-539 (1980) ( Mitchell I); see also F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1993). “A court lacks subject matter
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jurisdiction over a claim against the United States if it has not
consented to be sued on that claim.” Balser v. DOJ, Office of U.S.
Trustee, 327 F.3d 903, 907 (9th Cir. 2003).
When a plaintiff sues the government for damages, the waiver
may be found in a statute such as the Tucker Act, 28 U.S.C. § 1491, the
Indian Tucker Act, 28 U.S.C. § 1505, or the Federal Tort Claims Act, 28
U.S.C. § 2671. See, e.g., Mitchell I, 455 U.S. at 539. When a plaintiff
sues the government for equitable relief, waiver may be found in the
Administrative Procedures Act. 5 U.S.C. § 702; Presbyterian Church v.
United States, 870 F.2d 518, 524-5 (9th Cir. 1989). As there is no
indication in Switzer’s Complaint regarding a waiver by the United
States to be sued in this type of action, the claims against the United
States are subject to dismissal.
Lastly, the Crow Tribal Police is a tribal entity. In civil cases
arising between Indians, or against an Indian defendant in an action
arising in Indian country, tribal jurisdiction usually will be exclusive.
See Fisher v. District Court, 424 U.S. 382, 386–89 (1976); Williams v.
Lee, 358 U.S. 217, 223 (1959). Therefore, Switzer must clarify whether
he is an Indian, whether the alleged incidents occurred in Indian
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country, and whether he has brought this matter before the tribal court.
Although Switzer indicates he filed a claim with the BIA, there is no
indication that he has attempted to litigate this matter in tribal court.
III. CONCLUSION
A. Leave to Amend
As it is not clear that this Court has subject matter jurisdiction
over this action, the case is subject to dismissal. It may be possible to
correct these deficiencies. Therefore, Switzer may file an amended
complaint.
Any amended complaint must consist of short, plain statements
telling the Court: (1) the basis upon which this Court has subject
matter jurisdiction over his claims; (2) whether he is Native American;
(3) whether the alleged incidents occurred on the Crow Reservation; (4)
whether he has attempted to litigate these issues in tribal court; (5) the
rights he believes were violated; (6) the name of the defendant(s) who
violated the rights; (7) exactly what each defendant did or failed to do;
(8) how the action or inaction of that defendant is connected to the
violation of his rights; (9) when the alleged actions took place; and (10)
what injury he suffered because of that defendant’s conduct. Rizzo v.
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Goode, 423 U.S. 362, 371-72, 377 (1976).
Switzer must repeat this process for each defendant. Conclusory
statements are not enough, nor are declarations that all defendants
violated some law or statute. Instead, Switzer must provide specific
factual allegations for each element of each of his claims, and must
state with specificity what defendants he intends to sue and to which
defendants each of his claims apply. If Switzer fails to affirmatively
link the conduct of a defendant with an injury suffered, the allegation
against that defendant will be dismissed for failure to state a claim.
Switzer’s claims must be set forth in short and plain terms, simply,
concisely, and directly. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
(2002); Fed.R.Civ.P. 8.
The amended complaint must be complete in itself without
reference to any prior pleading. Once Switzer files an amended
complaint, it replaces the original complaint and the original complaint
no longer serves a function in the case. Ferdik v. Bonzelet, 963 F.2d
1258, 1262 (9th Cir. 1992). Therefore, in an amended complaint each
claim and the involvement of each defendant must be sufficiently
alleged.
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B. Address Changes
At all times during the pendency of this action, Switzer SHALL
IMMEDIATELY ADVISE the Court of any change of address and its
effective date. Such notice shall be captioned “NOTICE OF CHANGE
OF ADDRESS.” Failure to file a NOTICE OF CHANGE OF ADDRESS
may result in the dismissal of the action for failure to prosecute
pursuant to Fed.R.Civ.P. 41(b).
C. Possible Dismissal
If Switzer fails to timely comply with this Order, the Court may
recommend that this action dismissed. Ferdik, 963 F.2d at 1260-61 (a
district court may dismiss an action for failure to comply with any order
of the Court).
Based on the foregoing, the Court hereby issues the following:
ORDER
1. This Court’s Order dated December 18, 2012 (DKT 9) is
VACATED.
2. Switzer’s Motions to Proceed in Forma Pauperis (DKT. 1, 7) are
GRANTED.
2. Switzer may file an amended complaint on or before January
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18, 2012. The Clerk of Court is directed to provide Switzer with a form
for filing an amended complaint.
DATED this 20th day of December, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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