LaForge v. Gets Down et al

Filing 33

ORDER re 30 Findings and Recommendations are ADOPTED IN PART AND REJECTED IN PART; 11 Motion to Dismiss for Failure to State a Claim is GRANTED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND ; 13 Motion to Submit Support of Pleading Evidence is GRANTED ; 14 Motion To File Exhibits is GRANTED; 16 Motion to Dismiss for Lack of Prosecution is DENIED as moot; 20 Motion to Dismiss for Failure to State a Claim is GRANTED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND; 24 Motion for Prayer for Relief is GRANTED. Signed by Judge Brian Morris on 2/8/2018. (Hard copy mailed to pro se plaintiff Michael LaForge.) (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

MICHAEL F. LAFORGE,

CV-17-48-BLG-BMM-TJC

Plaintiff,
vs.
ORDER
JANICE GETS DOWN, NATASHA J.
MORTON, LEROY NOT AFRAID,
SHEILA WILKINSON NOT
AFRAID,
Defendants.

Plaintiff Michael LaForge, proceeding pro se, filed his Complaint on May 5,
2017, seeking relief against defendants for a divorce decree entered by the Crow
Tribal Court in and for the Crow Indian Reservation. The divorce decree divides
property between LaForge and his ex-wife, Defendant Janice Gets Down.
Defendant Natasha Morton served as attorney for Gets Down in the underlying
divorce action.
Morton filed a motion to dismiss for failure to state a claim (Doc. 11) and
motion to dismiss for lack of prosecution (Doc. 16). Leroy Not Afraid and Sheila
Wilkinson Not Afraid (collectively “Judicial Defendants”) serve as Crow Tribal

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Court Judges. Judicial Defendants filed a motion to dismiss for lack of subject
matter jurisdiction and failure to state a claim (Doc. 20).
United States Magistrate Judge Timothy Cavan entered Findings and
Recommendations in this matter on December 28, 2017. (Doc. 30.) Judicial
Defendants timely filed an objection on January 11, 2018. (Doc. 31.) The Court
reviews de novo Findings and Recommendations to which a party timely objects.
28 U.S.C. § 636(b)(1). The Court reviews for clear error portions of Judge Cavan’s
Findings and Recommendations to which a party did not specifically object.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
I.

Claims Against Morton
Judge Cavan determined that LaForge’s Complaint does not identify any

particular civil or constitutional rights violation. Judge Cavan further determined
that LaForge’s Complaint fails to indicate how Morton violated LaForge’s civil
rights. In order to state a claim for damages under 42 U.S.C. § 1983, a complaint
must allege that (1) a person acting under the color of state law committed the
conduct complained of, and (2) this conduct deprived a person of rights, privileges,
or immunities secured by the Constitution or laws of the United States. Parratt v.
Taylor, 451 U.S. 527, 535 (1981) (overruled on other grounds). Judge Cavan
correctly determined that Morton, serving as counsel for a private party, never

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acted under the color of state or federal law. (Doc. 30 at 10.) LaForge cannot assert
a § 1983 claim against Morton.
Judge Cavan determined that LaForge’s Complaint fails to identify how
Morton violated any particular “Disability Act.” The Ninth Circuit has foreclosed
suits under Title II of the American with Disabilities Act against individual
defendants in their individual capacities. Bohnert v. Mitchell, 2010 WL 4269569,
*5-6 (D. Ariz. 2010). Morton has no connection to Crow Tribal Court other than
being an attorney. Judge Cavan correctly determined that LaForge has sued Morton
in her individual capacity. (Doc. 30 at 11.) Morton does not remain subject to suit
under the American with Disabilities Act.
Judge Cavan further determined that there exists no conceivable private right
of action that may arise from a treaty against a private attorney in a tribal court
divorce action. Id. at 13. The Court agrees. LaForge’s Complaint sheds no light on
the possible basis for the claim. Any claim that LaForge intends to assert against
Morton based on “treaty rights” will be dismissed.
II.

Claims Against Judicial Defendants
Judge Cavan determined that judicial immunity and sovereign immunity bar

LaForge’s allegations against Judicial Defendants. Id. at 14. Tribal Court judges
remain absolutely immune from suit, in their individual capacities, for acts
performed in their judicial capacities under the doctrine of judicial immunity.

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Ferguson v. U.S. Dist. Court, 2009 WL 2423440, *1 (D. Mont. 2009). Judge
Cavan correctly determined that Judicial Defendants remain immune from the
instant lawsuit.
Judge Cavan likewise determined that the Tribe’s sovereign immunity bars
claims that LaForge brings against Judicial Defendants in their official capacities.
(Doc. 30 at 15.) Indian tribes are not considered states, or part of the federal
government, or a subdivision of either. Nat’l Labor Relations Bd. v. Pueblo of San
Juan, 276 F.3d 1186, 1192 (10th Cir. 2002) (en banc). Indian tribes, tribal entities,
and persons acting on the Tribe’s behalf in an official capacity enjoy sovereign
immunity against suit unless Congress expressly authorizes the suit or the tribe has
waived sovereign immunity. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523
U.S. 751, 754 (1998) (tribe); Allen v. Gold Country Casino, 464 F.3d 1044, 1046
(9th Cir. 2006) (tribal entity); Hardin v. White Mountain Apache Tribe, 779 F.2d
476, 479-80 (9th Cir. 1985 (tribal officials). LaForge does not argue that the Crow
Tribe has waived sovereign immunity for his claims. Congress has not expressly
authorized such private rights of action against the Crow Tribe. (Doc. 30 at 16.)
The Crow Tribe’s sovereign immunity bars LaForge’s claims against Judicial
Defendants in their official capacities.
Judicial Defendants object to Judge Cavan’s recommendation that the
Judicial Defendants’ motion to dismiss be granted without prejudice. Judicial

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Defendants argue that they remain absolutely immune from suit. (Doc. 31 at 2.)
Judicial Defendants argue that their motion to dismiss should be granted with
prejudice and without leave to amend. Id. Judicial Defendants further argue that no
set of facts that LaForge “could plead would surmount Judicial Defendants’
judicial immunity and tribal sovereign immunity” as they pertain to LaForge’s
claims. Id. at 3. The Court agrees.
Any amendment of LaForge’s Complaint would be futile concerning
Judicial Defendants. LaForge’s claims against Judicial Defendants arise from the
underlying divorce action. Judicial Defendants made decisions in that proceeding
while acting in their judicial capacities. Judicial Defendants further enjoy tribal
sovereign immunity. The Crow Tribe’s sovereign immunity covers its judicial
branch, the Crow Tribal Court, as well as the judges of that court acting in their
official capacity. See Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 727 (9th Cir.
2008). Judicial Defendants should be dismissed with prejudice.
III.

LaForge’s Motions

Courts have an obligation where the petitioner files pro se, particularly in
civil rights cases, to construe the pleadings liberally and to afford the petitioner the
benefit of any doubt. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Judge
Cavan determined that when construing LaForge’s motions (Docs. 13, 14, 24)
liberally, LaForge appears to be supplementing his Complaint. Judge Cavan

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determined that motions should be granted. (Doc. 30 at 17.) The Court warns
LaForge, however, that failure to correct the deficiencies identified in Judge
Cavan’s Findings and Recommendations in any amended pleadings will result in
dismissal with prejudice of the remainder of his claims.
IV.

Conclusion

The Court has reviewed de novo Judge Cavan’s Findings and
Recommendations regarding the judicial immunity and tribal sovereign immunity
of Judicial Defendants. The Court has reviewed for clear error the remaining
portions of Judge Cavan’s Findings and Recommendations. The Court will adopt
in part, and, reject in part, Judge Cavan’s Findings and Recommendations.
IT IS ORDERED that Judge Cavan’s Findings and Recommendations (Doc.
30), are ADOPTED IN PART AND REJECTED IN PART.
IT IS ORDERED that LaForge’s Motion to Submit Support of Pleading
Evidence (Doc. 13), Motion to File Exhibits (Doc. 14), and Motion for Prayer for
Relief (Doc. 24) are construed as motions to amend LaForge’s Complaint. These
motions are GRANTED.
IT IS ORDERED that Defendant Natasha Morton’s Motion to Dismiss for
Failure to State a Claim (Doc. 11) is GRANTED WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND.

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IT IS ORDERED that Judicial Defendants’ Motion to Dismiss for Failure to
State a Claim (Doc. 20) is GRANTED WITH PREJUDICE AND WITHOUT
LEAVE TO AMEND.
IT IS FURTHER ORDERED that Defendant Natasha Morton’s Motion to
Dismiss for Failure to Prosecute (Doc. 16) is DENIED as moot.
DATED this 8th day of February, 2018.

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