Russell v. Pyle et al

Filing 3

OPINION AND ORDER by Judge Ronald A. White granting Plaintiff's Motion for Leave to Proceed in Forma Pauperis ((Re: 2 MOTION for Leave to Proceed in Forma Pauperis) and dismissing/terminating case (law, Deputy Clerk) Modified on 11/16/2010 to edit text (dma, Deputy Clerk).

Russell v. Pyle et al

Doc. 3

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF OKLAHOMA G A R Y WAYNE RUSSELL, Plaintiff, v. G R E G O R Y E. PYLE and MICKEY P IE R C Y , Defendants. O P I N I O N AND ORDER B e f o re the court are Plaintiff's Complaint [Docket No. 1] and Motion for Leave to P ro c e e d in Forma Pauperis [Docket No. 2]. Motion to Proceed in Forma Pauperis Plaintiff's Motion to Proceed in Forma Pauperis indicates that he is single, is not e m p lo ye d , does not own any real property, has no money in a bank account, and does not o w n a vehicle. Plaintiff's IFP motion is GRANTED. Complaint T h e court construes Plaintiff's allegation liberally as he is pro se. See Haines v. K e rn e r, 404 U.S. 519 (1972). Plaintiff claims that his civil rights have been violated by the D e f en d a n ts . Plaintiff states he has been "threatened with arrest for setting foot at any tribal h o s p ita l or clinic." C as e No. 10-CIV-427-RAW

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J u r is d ic tio n P la in tif f has filed this action against Gregory E. Pyle, Chief of the Choctaw Nation, a n d Mickey Piercy, Administrator of the Choctaw Nation. Pursuant to the Federal Rules of E v id e n c e, a court can take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) c a p a b le of accurate and ready determination by resort to sources whose accuracy cannot re a so n a b ly be questioned." FED. R. EVID. 201(b). Further, a court may take judicial notice, w h e th e r requested or not. FED. R. EVID. 201(c). The court takes judicial notice that the C h o c ta w Nation is an Indian tribe and the Defendants are representatives of the tribe. F e d e ra lly recognized Indian tribes "possess the same immunity from suit traditionally en joyed by sovereign powers." Walton v. Pueblo, 443 F.3d 1274, 1277 (10 th Cir. 2006). F e d e ra l courts do not have jurisdiction to entertain suits against an Indian tribe, absent e x p licit waiver of immunity or express authorization by Congress. Id, at 1277. The only e x c e p tio n to this general rule is that federal courts have jurisdiction over habeas proceedings. Id ., at 1278. None of these factors are present in the instant case. The court, therefore, a g r e e s with the District of Kansas, which stated that "in the area of Indian law, the court must trea d lightly." Hartman v. Golden Eagle Casino, Inc., 243 F.Supp.2d 1200 (D.Kansas 2003). B a se d on Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) and Kiowa Tribe of O k la . v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), this court does not have ju ris d ic tio n over the present lawsuit due to the tribe's sovereign immunity. The court does

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n o t take lightly the finality of this Order which dismisses Plaintiff's claims against the tribe. " It is true sovereign immunity may leave Plaintiff without legal redress on her employment d is c rim in a tio n claims. This is, however, not unprecedented." Medina v. Jicarilla Apache H o u s in g Authority, 2007 WL 1176023 (D.N.M.), quoting Alden v. Maine, 527 U.S. 706, 757 (1 9 9 9 ). 28 U.S.C. § 1915 S e c tio n 1915 of the United States Code, Title 28, states as follows: (2 ) Notwithstanding any filing fee, or any portion thereof, that may have been p a id , the court shall dismiss the case at any time if the court determines that­ (A ) the allegation of poverty is untrue; or (B) the action or appeal-(I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune f ro m such relief. 28 U.S.C.A. § 1915(e)(2). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." F u r th e r, the term frivolous "embraces not only the inarguable legal conclusion, but also the f a n c if u l factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A plaintiff is n o t required to make out a perfect case in their complaint. Rather, "It suffices for him to s ta te claims that are rationally related to the existing law and the credible factual allegations." L e m m o n s v. Law Firm of Morris and Morris, 39 F.3d 264 (10 th Cir. 1994).

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S u a Sponte Dismissal " S u a sponte dismissals are generally disfavored by the courts." Banks v. Vio S o f tw a re , 275 Fed.Appx. 800 (10 th Circ. 2008). A court shall dismiss a case at any time, h o w e v e r, if the court determines that the action fails to state a claim on which relief may be g ra n te d , or seeks monetary relief against a defendant who is immune from such relief. 28 U .S .C . § 1915(e)(2)(B)(ii) and (iii). Indeed, the Tenth Circuit Court of Appeals has stated that a district court is required to dismiss an IFP claim that is frivolous or malicious, fails to state a claim on which relief m a y be granted, or seeks monetary relief against a defendant who is immune from such relief. T ru jillo v. Williams, 465 F.3d 1210, 1216 n.5 (10 th Cir. 2006). T h e court may sua sponte dismiss an action pursuant to § 1915 when "on the face of th e complaint it clearly appears that the action is frivolous or malicious." Hall v. Bellmon, 9 3 5 F.2d 1106, 1108 (10th Cir. 1991). "The term `frivolous' refers to `the inarguable legal c o n c lu s io n ' and `the fanciful factual allegation.'" Id. (citation omitted). Further, a "trial c o u rt may dismiss a claim sua sponte without notice where the claimant cannot possibly win re lie f ." McKinney v. State of Oklahoma, 925 F.2d 363, 364 (10 th Cir. 1991).

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C o n c lu s io n T h e allegations listed in the complaint do not create a claim upon which this lawsuit c a n proceed. IT IS THEREFORE ORDERED as follows: 1. P lain tiff 's Motion for Leave to Proceed in Forma Pauperis [Docket No. 2] is GRANTED. 2. P la in tif f 's action is found to be frivolous, that Plaintiff fails to state a claim on w h ic h relief can be granted. This matter is dismissed with prejudice. D a te d this 16th day of November, 2010.

Dated this 16th Day of November 2010.

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