Dick v. Schaeffer et al

Filing 6

ORDER denying ECF No. 5 Motion - EMERGENCY Request for a Minute Order, Bench Warrant; directing Plaintiff within 28 days to show cause why Count I should not be dismissed under the statute of limitations and why the entire complaint should not be dismissed based on judicial immunity. Signed by Judge Robert C. Jones on 10/27/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KWASSUH WESLEY GLENN DICK,

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Plaintiff has sued the Austin Township Justice Court (“the ATJC”) and a Justice of the

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Plaintiff,
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vs.
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WILLIAM E. SCHAEFFER et al.,
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Defendants.

3:16-cv-00584-RCJ-WGC
ORDER

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Peace thereof, William Schaeffer in pro se in this Court. He has now filed an emergency motion.

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I.

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FACTS AND PROCEDURAL HISTORY
In Count I, Plaintiff alleges that unidentified Lander County Sheriff’s Office deputies

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interfered with his hunting activities in 2012 in violation of the Treaty with the Snake (Northern

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Paiute) of 1865. Specifically, the deputies arrested him on June 7, 2012 for having killed three

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antelope. Plaintiff spent four days in the Lander County Jail without being brought before a

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judge. The ATJC continued his trial to July 2013 at his request. Plaintiff requested that the

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“Winnemucca Traditional Tribal Court” hear his case. That purported court accepted his request

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and purported to rule in his favor. Nevertheless, the ATJC proceeded in some fashion in October

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2013 (the allegations are largely illegible). In Count II, Plaintiff alleges “judicial misconduct” by

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Justice Schaeffer for having ignored the purported acquittal in the tribal court.

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II.

DISCUSSION
Any cause of action under 42 U.S.C. § 1983 based on the allegations under Count I would

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appear to be barred by the statute of limitations, because the actions alleged therein pre-date the

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filing of the Complaint by more than two years. See Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.

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1989) (citing Nev. Rev. Stat. § 11.190(4)(e)). Although the statute is an affirmative defense, the

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applicability of the defense here appears on the face of the Complaint, making dismissal

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appropriate at the pleading stage. See, e.g., Hyatt Chalet Motels, Inc. v. Carpenters Local 1065,

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430 F.2d 1119, 1120 (9th Cir. 1970). The Court will therefore order Plaintiff to show cause why

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Count I should not be dismissed under the statute of limitations. Also, Justice Schaeffer would

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appear to be absolutely immune against any claim under § 1983 no matter how wrongly the

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matter was decided in substance or procedure so long as his court had jurisdiction over the

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crime(s) charged. See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc).

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Plaintiff has made no showing of a lack of jurisdiction. A tribal court may not take jurisdiction

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over a state criminal action away from a state court. The Court will therefore order Plaintiff to

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show cause why the entire Complaint should not be dismissed based on judicial immunity.

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In his present motion, Plaintiff claims that the ATJC dismissed the charges against

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Plaintiff (three counts under NRS 501.376 - Unlawful Killing or Possession of Big Game

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Without a Valid Tag) with prejudice when the state failed to produce its witnesses at the time

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scheduled for trial. The present motion concerns Plaintiff’s October 24, 2016 arrest by Fallon

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Paiute–Shoshone Tribal Police based on a contempt of court warrant issued by the ATJC.

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Plaintiff asks the Court to direct the U.S. Marshals Office to take him into “protective custody”

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and transport him to his home (presumably from the Lander County Jail, although his current

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location is not alleged). The present motion is not signed by Plaintiff but by “Benny Mills, Elder

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Traditional Speaker” who does not claim to be an attorney admitted before this Court. The Court

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denies the motion. First, it has not been filed by Plaintiff or anyone authorized to make filings
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with the Court on his behalf; a layperson may not appear in federal court on behalf of another;

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one must be a publicly licensed attorney-at-law to appear in court on behalf of another, not

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merely an attorney-in-fact under a private power of attorney. See C.E. Pope Equity Tr. v. United

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States, 818 F.2d 696, 697 (9th Cir. 1987); McShane v. United States, 366 F.3d 286, 288 (9th Cir.

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1966); Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962); Collins v. O’Brien, 208 F.2d 44,

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45 (D.C. Cir. 1953), cert. denied, 347 U.S. 944 (1954). Second, even if the Court were to

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interpret the present motion as a habeas corpus petition under 28 U.S.C. §§ 2241 or 2254 (the

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motion is silent as to whether Plaintiff has been convicted for contempt or remains a pre-trial

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detainee), Plaintiff has made no showing that the order of contempt upon which the arrest was

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made was contrary to federal law. He has not even alleged the basis of the order of contempt.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion (ECF No. 5) is DENIED.

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IT IS FURTHER ORDERED that within twenty-eight (28) days of the entry of this Order

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into the electronic docket, Plaintiff shall show cause why Count I should not be dismissed under

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the statute of limitations and why the entire Complaint should not be dismissed based on judicial

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immunity.

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IT IS SO ORDERED.

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Dated this 27th day of October, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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