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

Filing 86

ORDER: Granting Defendant's Motion for Summary Judgment 76 . Defendant Patterson's counter-claim for attorney fees is denied. Signed on 5/28/2012 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OWEN JAMES WALLULATUM
Plaintiff,

6:08-cv-747-AA

v.

ORDER

THE CONFEDERATED TRIBES OF
THE WARM SPINGS RESERVATION
OF OREGON PUBLIC SAFETY
BRANCH, et al.,
Defendant.
AIKEN, District Judge.
Plaintiff

filed

this

action under

42

U.S.C.

§

1983

alleging that defendants violated his rights under the Fourth
Amendment of the United States Constitution by using excessive
force against him when he was arrested on the Warm Springs
Indian Reservation.
The only remaining defendant, Jason Patterson, now moves
for summary judgment (#76).
Facts:

The

following

relevant

facts

are

undisputed:

Plaintiff is an enrolled tribal member of the Confederated
1 - ORDER

Tribes of the Warm Springs Reservation of Oregon. The incident
giving rise to plaintiff's claims occurred on the Warm Springs
Indian Reservation.

At the time, defendant Patterson was a

temporary employee of the Warm Springs Police Department.
[Trial Exhibit 108].
Discussion:

Federal

courts

are

courts

of

limited

jurisdfction and must have subject matter' jurisdiction in
order to decide a particular case.

Owen Eguipment & Electric

Co. v. Kroger, 437 U.S. 365, 371 (1978).
In this case, plaintiff alleges jurisdiction under 42
U.S.C.

§

1983.

However, as noted above, it is undisputed that

at the time of the incident, defendant Patterson's actions
were taken as a tribal officer.
The law is clear that no action can be brought in federal
court for alleged deprivations of constitutional rights under
the color of tribal law.

R.J. Williams Co. V. Fort Belnap

Housing Authority, 719 F.2d 979, 982 (9 th Cir. 1983); Desautel
v. Dupris, 2011 WL 5025270 (E.D. Wash. October 21, 2011).
As stated in Desautel:
The federal statutes relied on by Plaintiff's do
not provide this Court with federal-question
jurisdiction given the Complaint's allegations.
Although §§ 1983 and 1985 can serve as a basis for
federal
question
jurisdiction,
Plaintiff's
allegation do not involve action taken under the
color of state law; rather the Complaint alleges
actions taken under the color of tribal law.
Neither §§ 1983 nor 1985 extend to provide a civil
action for deprivation of rights by an individual
2 - ORDER

acting under the color of tribal law. Evans v.
McKay,
869 F.2d 1341,
1347
(9 th Cir.
1989)
('[A]ctions under section 1983 cannot be maintained
in federal court for persons alleging a deprivation
of constitutional rights under color of tribal
law.')
Accordingly,
the
Court
grants
Defendants' ,motion to dismiss because it lacks
subject matter jurisdiction. See Alvarado v. Table
Mountain Rancheria, 509 F.3d 1008, 1011 (9 th Cir.
2007) (dismissing lawsuit for lack of subject
matter jurisdiction).
At a hearing on April 11, 2012, the court attempted to
explain the jurisdictional issue to the pro se plaintiff in
this action,

and allowed plaintiff 30 days to respond.

Plaintiff's response does not allege an alternate appropriate
jurisdictional basis for his claim or provide any argument or
authority to controvert the controlling law set forth above.
Conclusion:

It is undisputed that defendant Patterson was

working as a tribal officer at the time of the incident giving
rise to plaintiff's claims and that the incident occurred on
the tribal sovereign land.

Thus the actionable conduct, if

any, was under the color of tribal law and 42 U.S.C.

§

1983

does not provide a proper jurisdictional basis for this court
to entertain plaintiff's claim.

Plaintiff has failed to

allege an alternate jurisdictional bases. For these reasons
this court is without jurisdiction and defendant is entitled
to dismissal of plaintiff's claims against him. Defendant's
Motion for Summary Judgment (#76) is allowed.

To the extent

it may be properly before the court, Defendant Patterson's
3 - ORDER

counter-claim for attorney fees is denied.

This action is

dismissed.!

DATED

thiS~

of May, 2012.

Ann Aiken
United State District Judge

1

Plaintiff filed this action on June 20, 2008. There were some
delays in the proceeding due to plaintiff's health issues and
inability to obtain counsel. Defendant's motion for summary
judgment was filed on March 20, 2012 - on the eve of a
scheduled trial. Discovery was done and trial materials had
been submitted to the court. The court would expect that
attorneys of the caliber representing defendants in this case
would have identified the dispositive jurisdictional issue
much earlier in this litigation and thereby conserved a
considerable amount of judicial and other resources.
4

ORDER