Wallulatum v. The Confederated Tribes of the Warm Springs Reservation of Oregon et al

Filing 19

ORDER: Defendants Motion to Dismiss 14 is allowed. Plaintiff's claims against the moving defendant are dismissed. Signed on May 18, 2009 by Chief Judge Ann L. Aiken. (cp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON OWEN JAMES WALLULATUM, Plaintiff, v. THE CONFEDERATED TRIBES, et al., Defendants. AIKEN, District Judge. Plaintiff filed a complaint seeking money damages for defendants' alleged violations of the "Indian Civil Rights Act." Plaintiff alleges shot that "Jefferson County a Deputy illegal Complaint Civil No. 08-747-AA ORDER

Patterson

unlawfully

plaintiff

with

unauthorized weapon," specifically a "tazer gun." (#2) p. 2.

1 - ORDER

Defendants The Confederated Tribes of Warm Springs, the Tribal Police Department, and Chief of Police Carmen Smith move to dismiss plaintiff's claims against them. Dismiss (#14). Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by Motion to

sovereign powers. Turner v. U.S., 248 U.S. 354 (1919); United States v. Fidelity and Guaranty Co., 309 U.S. 506 (1940); Puyallup Tribe Inc. v. Washington Department of Game, 433 U.S. 165 (1977); Santa Clara Pueblo v. Martinez 436 U.S. 60 (1978). Thus, defendant The Confederated Tribes of the Warm Springs is absolutely immune from liability to plaintiff. Defendant Public Safety Branch (of) the Tribal Police is a department or agency of the tribe. immunity extends to the tribal police on Therefore, tribal principles similar

to those governing Eleventh Amendment immunity. Plaintiff does not allege any facts against defendant Carmen Smith. In order to state a claim against a named

defendant, plaintiff must allege specific facts about that defendant and identify how that defendant's conduct violated his rights. General allegations are insufficient. The absence of any factual allegations against a named defendant will entitle that defendant to have the complaint dismissed as to him, pursuant to Fed. R. Civ. P. 12(b). Polk v. Montgomery

2 - ORDER

County, 548 F. Supp. 613, 614 (D.Md. 1982). See also, Morabito v. Blum, 528 F.Supp. 252, 262 (S.D. N.Y. 1981). Although pro

se complaints are to be interpreted liberally, Haines v. Kerner, 92 S.Ct. 594 (1972), the court may not supply Ivey v. Board of

essential elements that are not pleaded. Regents, 673 F.2d 266 (9th Cir. 1982).

Plaintiff may be seeking to hold defendant Smith liable on a theory of respondeat superior. However, It is well

settled that respondeat superior is not a proper basis for liability under 42 U.S.C. § 1983.1 Monell v. Dept. of Social

Services of City of New York, 436 U.S. 658, 691-694 (1978); Rizzo v. Goode, 423 U.S. 362, 375-76 (1976); King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Absent an allegation that

the named state officials were personally involved in the alleged deprivation of constitutional rights, a complaint under 42 U.S.C. § 1983 does not state a claim. See, Boddie v.

Coughlin, 583 F. Supp. 352, 356 (S.D.N.Y. 1984); Tunnell v. Office of Public Defender, 583 F. Supp. 762, 767 (E.D. Pa. 1984); Black v. Delbello, 575 F. Supp. 28, 30 (S.D.N.Y. 1983); Knipp v. Winkle, 405 F. Supp. 782, 783 (N.D. Ohio 1974). supervisor may be liable based on his or her A

personal

Although plaintiff has not alleged jurisdiction under the Civil Rights Act, he is alleging violations of his civil rights and I find that the respondeat superior analysis applicable to action under 42 U.S.C. § 1983 applies to this case. 3 - ORDER

1

involvement in the alleged deprivation, or if there is a sufficient causal connection between the supervisor's alleged wrongful conduct and the alleged deprivation, Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989), but a "supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). See also, Shaw v. Stroud, 13 F.3d

791, 799 (4th Cir. 1994) (supervisory liability only when a) actual or constructive knowledge of a pervasive and

unreasonable risk of injury; b) deliberate indifference to or tacit authorization of the practice; and c) an affirmative causal link between inaction and the injury). Plaintiff has not alleged any facts that would subject defendant Smith to liability under a respondeat superior type theory. Based on all of the foregoing, I find that plaintiff's complaint fails to state a claim against defendants The Confederated Tribes of the Warm Springs, the Public Safety Branch (of) the Tribal Police Department and Tribal Chief of

4 - ORDER

Police Carmen Smith.

Defendants Motion to Dismiss (#14) is

allowed. Plaintiff's claims against the moving defendants are dismissed. IT IS SO ORDERED DATED this 18 day of May, 2009. /s/ Ann Aiken Ann Aiken United State District

Judge

5 - ORDER