Whiting v. Eagle Bear et al
Filing
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OPINION AND ORDER granting 2 MOTION for Leave to Proceed in forma pauperis and Dismissing Complaint. Signed by U.S. District Judge Roberto A. Lange on 1/22/16. (SLW)
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FILED
UNITED STATES DISTRICT COURT
JAN 2 2 2016
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DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
WILLIAM PAUL WHITING,
3: l 5-CV-03019-RAL
Plaintiff,
vs.
MELISSA EAGLE BEAR, individually and in
her official capacity, AND HATTIE DUNHAM,
individually and in her official capacity,
OPINION AND ORDER
GRANTING LEA VE TO PROCEED IN
FORMA PAUPERIS AND DISMISSING
COMPLAINT
Defendants.
On October 8, 2015, Plaintiff William Paul Whiting ("Whiting") filed a pro se claim
against Melissa Eagle Bear ("Eagle Bear"), Facility Supervisor and Warden at the Rosebud
Sioux Tribe Adult Correctional Facility ("RSTACF"), and Hattie Dunham ("Dunham"), Program
Specialist at the RSTACF, in their individual and official capacities under 28 U.S.C. § 1331 and
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Doc. 1. Whiting
alleges that Eagle Bear and Dunham (collectively "Defendants") violated his constitutional rights
and seeks monetary damages. Doc. 1. Whiting also filed a motion for leave to proceed in forma
pauperis. Doc. 2. For the reasons stated below, Whiting's motion for leave to proceed in forma
pauperis is granted, and his Complaint is dismissed without prejudice under the doctrine of tribal
sovereign immunity and for failure to state a claim, lack of subject matter jurisdiction, and
failure to exhaust administrative remedies under 28 U.S.C. § 1915A.
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I.
FACTS
Whiting's Compliant contains three counts.
Counts I and III contain similar claims.
Count I alleges that on or about May 19, 2015, Melissa High Bear violated Whiting's First
Amendment rights to attend church services and practice his religious beliefs because the
RSTACF has a policy that does not allow detained individuals with bonds over $5,000 to
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participate in any programs. Doc. 1 at 4. Count III alleges that on May 26, 2015, Eagle Bear
violated Whiting's First Amendment rights in the same way. Doc. 1 at 6. Count II of the
Complaint alleges that Whiting's Eight Amendment rights were violated when he was denied
medical care while detained at the RSTACF. Doc. 1 at 5. In Count II, Whiting specifically
claims that he was prescribed blood pressure medication on May 21, 2015, and was subsequently
denied follow-up appointments on May 28 and June 4, 2015, to determine if that previously
prescribed blood pressure medication was working properly. Doc. 1 at 5. Whiting asserts that
he finally was able to obtain medical treatment on June 11, 2015, when a correctional officer,
Officer Yellowboy, called the paramedics because Whiting's blood pressure had reached
164/105. Doc. l at 5. Whiting claims that administrative remedies for the allegations stated in
Count II are not available, not requested, and not appealed, but that he did submit administrative
requests for relief for the circumstances alleged in Counts I and Ill. Doc. l at 4-6. Whiting
asserts that he did not submit an administrative request for Count II or appeal the administrative
requests for Counts I and III because he was taken into federal custody approximately one week
after he was released from tribal custody. Doc. l at 4-6.
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II.
DISCUSSION
A. In Forma Pauperis Status
Under the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(a)(l), a district
court may authorize the commencement of a suit without prepayment of fees or security by a
person who requests for leave to proceed in forma pauperis. In forma pauperis status does not
require an applicant to be completely destitute, and the determination whether an applicant is
sufficiently impoverished to qualify rests in the district court's discretion.
Id.; Lee v.
McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). Whiting did not pay the civil filing fee in
this case, but has filed an application to proceed in forma pauperis, Doc. 2, and the record
includes a Prisoner Trust Account Report, Doc. 3. Upon review, this Court finds that Whiting is
indigent. 1 Therefore, Whiting's motion to proceed in forma pauperis is granted.
The PLRA, however, requires prisoners to make an initial partial filing payment where
possible.
Determination of the partial filing fee is calculated according to 28 U.S.C.
§ 1915(b)(l), which requires twenty percent of the greater of: (a) the average monthly deposits
to the prisoner's account; or (b) the average monthly balance in the prisoner's account for the
six-month period immediately preceding the filing of the complaint or notice of appeal. Whiting
is obligated to pay the filing fee regardless of whether this Court allows or dismisses this action.
In re Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997). The obligation to pay a
filing fee accrues the moment a plaintiff files his complaint with the court, and it cannot be
avoided merely because the case is eventually dismissed. In re Tyler, 110 F.3d 528, 529-30 (8th
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Whiting declared that he has no money in any accounts and does not own property of value.
Doc. 2 at 2. Although Whiting did not state that he has dependents in this case, he noted he has
two dependents in the other case, No. 15-3017. At the time of the in forma pauperis filings,
Whiting had been incarcerated for approximately two months and had a prison account balance
of $1.56, an average monthly deposit of $22.00, and an average monthly balance of $20.00.
Doc. 3.
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Cir. 1997) (prisoner will be assessed full filing fee even if his case is dismissed because "the
PLRA makes prisoners responsible for their filing fees the moment the prisoner brings a civil
action or files an appeal"). Whiting shall pay $4.40 for the initial partial filing fee in this case
because he has average monthly deposits of $22.00.
B. Screening of Whiting's Claims & Liberal Construction of Pro Se Complaint
Congress has directed this Court, under 28 U .S.C. § l 915A, to review and screen claims
in a complaint being filed in forma pauperis to determine if they are ( 1) "frivolous, malicious, or
fail[] to state a claim on which relief may be granted; or (2) seek[ ] monetary relief from a
defendant who is immune from such relief." 2 28 U.S.C. § 1915A(b); see also Stanko v. Patton,
228 F. App'x 623, 624 (8th Cir. 2007) ("A complaint is frivolous where it lacks an arguable
basis either in law or in fact." (quoting Williams v. Hopkins, 130 F.3d 333, 335 (8th Cir. 1997)));
Jefferies v. Marshall, No. CIV-12-3023, 2012 WL 3730605, at *2 (D.S.D. Aug. 28, 2012) ("This
Court is required to dismiss claims that are frivolous, malicious, or fail to state a claim upon
which relief may be granted."); In re Prison Litig. Reform Act, 105 F.3d at 1131 ("[B]efore
service of process is made on the opposing parties, the district court must screen the case under
the criteria of28 U.S.C.A. § 1915(e)(2) and 28 U.S.C.A. § l 915A.").
A court must assume as true all facts well pleaded in the complaint. Cole v. Homier
Distrib. Co., Inc., 599 F .3d 856, 861 (8th Cir. 2010). "Although pro se complaints are to be
construed liberally, 'they still must allege sufficient facts to support the claims advanced."'
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Section l 915A is restricted to prisoners who sue a "governmental entity or officer or employee
of a governmental entity." 28 U.S.C. § 1915A(a). Section 1915(e)(2) overlaps the criteria of
section l 915A but is different in three respects. Section 1915(e)(2) is not restricted to actions
brought by prisoners, not limited to cases involving government defendants, and is applicable
throughout the entire litigation process. 28 U.S.C. § 1915(e)(2). This Opinion and Order screens
and dismisses Whiting's action under section I 915A, but even if a tribe and tribal employees
would not prompt section 19 l 5A's application, a similar disposition of dismissal for all claims
would be warranted under section 1915(e )(2).
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Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006) (quoting Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004)). "[P]ro se litigants must set [a claim] forth in a manner
which, taking the pleaded facts as true, states a claim as a matter of law." Id. (alterations in
original) (quotation omitted). A complaint "does not need detailed factual allegations ... [but]
requires more than labels and conclusions, and a formulaic recitation of a cause of action's
elements will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation
omitted). If a complaint does not contain these bare essentials and instead is based on vague or
conclusory allegations or "unsupported generalizations," dismissal is appropriate. Beavers v.
Lockhart, 755 F.2d 657, 663 (8th Cir. 1985) (internal quotation marks and quotation omitted). In
Twombly, the Supreme Court of the United States made clear that a complaint's factual
allegations, when taking all those allegations as true, must be "enough to raise a right to relief
above the speculative level." 550 U.S. at 555.
There are three reasons why Whiting cannot proceed with this action. First, Defendants
are immune from suit in federal court. Second, this Court lacks subject matter jurisdiction. And
third, even if tribal immunity was waived and a federal statute gave this Court jurisdiction over
the claims asserted, Whiting has failed to exhaust his administrative remedies on Count I and III.
Each issue is separately addressed below.
C. Tribal Sovereign Immunity
"As a matter of federal law, an Indian tribe is subject to suit only where Congress has
authorized the suit or the tribe has waived its immunity." Fort Yates Pub. Sch. Dist. No. 4 v.
Murphy ex rel. C.M.B., 786 F.3d 662, 670 (8th Cir. 2015) (quoting Kiowa Tribe of Okla. v. Mfg.
Techs., Inc., 523 U.S. 751, 754 (1998)). Absent a clear and unequivocal waiver or congressional
authorization, this Court does not have subject matter jurisdiction over an action against a
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federally recognized tribe.
Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030-
31 (2014). The Eighth Circuit has found that a tribe's sovereign immunity may extend to a tribal
entity or agency. See J.L. Ward. Assocs., Inc. v. Great Plains Tribal Chairmen's Health Bd., 842
F. Supp. 2d 1163, 1171-72 (D.S.D. 2012) (collecting cases).
In a suit for damages, tribal
immunity also protects tribal employees acting in their official capacities and within the scope of
their authority, as the relief would run directly against the tribe itself. Baker Elec. Coop., Inc. v.
Chaske, 28 F.3d 1466, 1471 (8th Cir. 1999) (quoting N. States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 460 (8th Cir. 1993)); see also Cohen's
Handbook of Federal Indian Law§ 7.05[1][a], at 638 (Nell Jessup Newton et al. eds., 2012). But
cf. Bay Mills Indian Cmty., 134 S. Ct. at 2035 (noting that tribal immunity, however, does not
bar suits "for injunctive relief against individuals, including tribal officers, responsible for
unlawful conduct" (emphasis omitted)).
Here, the tribe's sovereign immunity protects both Defendants against these claims.
Whiting alleges that Defendants were employed by the RSTACF in May and June of 2015.
Doc. 1. The RSTACF is operated by the Rosebud Sioux Tribe ("the Tribe"), which is a federally
recognized Indian tribe. 3 25 U.S.C. §§ 479a, a-1; Indian Entities Recognized and Eligible to
Receive Services for the United States Bureau of Indian Affairs, 80 Fed. Reg. 1942-02, 1942,
1945 (Jan. 14, 2015). Whiting does not contend that Congress has authorized this suit or that the
Tribe has waived its sovereign immunity. Whiting does not allege that either Defendants were
acting outside the scope of their official authority or that the RSTACF somehow is not an arm of
the tribe.
Thus, Whiting's claims for money damages against Defendants in their official
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The Tribe "negotiated with the Bureau of Indian Affairs ... under one P.L. 93-638 contract" in
2008 to operate the RSTACF. Rosebud Sioux Tribe Corrections Services, Wanbli Wiconi Tipi,
http://www.wanbliwiconitipi.com/web/index.php?siteid=l&pageid=l 7 (last visited Jan. 13,
2016).
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capacities are barred by tribal sovereign immunity and must be dismissed.
28 U.S.C. §
1915A(b)(2).
Whiting's claims against Defendants in their individual capacities similarly cannot stand.
To state a claim against Defendants in their individual capacities, Whiting must allege facts
which suggest that both Defendants did not act on the Tribe's behalf or that both Defendants
exceeded the authority granted to them by the Tribe.
See Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 689-92 (1949); see also Burrell v. Armijo, 603 F.3d 825, 83235 (10th Cir. 2010); Frazier v. Turning Stone Casino, 254 F. Supp. 2d 295, 309-10 (N.D.N.Y.
2003); Ross v. Flandreau Santee Sioux Tribe, 809 F. Supp. 738, 745 (D.S.D. 1992); Cohen §
7.05[1][a], at 638-39 ("Suits for damages against employees or officers in their individual
capacities are barred by qualified immunity unless the alleged actions were not colorably within
the authority delegated by the tribe.").
However, no such allegations were made.
Thus,
Whiting's claims against Defendants in their individual capacities must be dismissed. 28 U.S.C.
§ 1915A(b)(l); see also Ferguson v. SMSC Gaming Enter., 475 F. Supp. 2d 929, 931 (D. Minn.
2007) ("A mere claim that [the individual defendant] made an error in exercising his authority is
not sufficient."); Frazier, 254 F. Supp. 2d at 310 (holding individual defendants who were
alleged to have violated state law and acted outside the scope of their authority were immune
from suit because no allegations were made that the defendants acted '"without any colorable
claim of authority"' (quoting Bassett v. Mashantucket Pequot Museum & Research Ctr., Inc.,
221 F. Supp. 2d 271, 281 (D. Conn. 2002))).
D. Subject Matter Jurisdiction
Even if the Tribe had waived its sovereign immunity, Whiting cannot establish that this
Court has jurisdiction over the subject matter of this action. "Aside from the Indian Civil Rights
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Act [("ICRA")], no federal statute specifically addresses the civil rights of persons under tribal
jurisdiction." Cohen § 14.04[3], at 989. This is because many federal civil rights statutes limit
their application, by their very terms, to states or state action, 4 or impose duties on the executive
and federal government; 5 those limitations do not apply to Indian tribes. Id.; see also Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56-57 (1978) (noting that absent a congressional delegation of
power, tribes are not states of the Union as described in the federal Constitution). But even
under ICRA, it is well understood that federal judicial review of tribal actions is authorized only
through the habeas corpus provision of 25 U.S.C. § 1303, Santa Clara, 436 U.S. at 58, 69-70.
Additionally, the Eighth Circuit has stated that ICRA only provides rights "against the tribe and
governmental subdivisions thereof, and not against tribe members acting in their individual
capacities." Means v. Wilson, 522 F.2d 833, 841 (8th Cir. 1975) (citing 25 U.S.C. § 1302); see
also id. (concluding that "it is plain that only actions of the tribe and tribal bodies are
constrained"). Defendants thus may not be sued for money damages in either their official or
their individual capacities under ICRA.
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The Tribe is not a "person" amenable to suit under § 1983. Only "persons" who deprive
citizens or other persons within the jurisdiction of the United States of rights conferred by federal
laws under the color of state law may be liable under§ 1983. 42 U.S.C. § 1983. The Supreme
Court has stated that there is a "longstanding interpretive presumption" that the word "person"
typically does not include a sovereign. Vt. Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765, 780 (2000); see also Inyo Cty., Cal. v. Paiute-Shoshone Indians of the Bishop
Cmty. of the Bishop Colony, 538 U.S. 701, 708-09 (2003) (noting that in enacting § 1983
Congress did not intend to override sovereign immunity); Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989) ("We hold that neither a State nor its officials acting in their official
capacities are 'persons' under § 1983."). In Inyo County, the Supreme Court held that an Indian
tribe was not a "person" who could sue under§ 1983. 538 U.S. at 708-12. As the Supreme
Court recognized there, it would be illogical to hold that "person" used within the same statute
means two different things whether the entity is bringing suit or being sued. Id. at 710.
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In Bivens, the Supreme Court of the United States created a damages action against federal
officials as an implied remedy for constitutional violations. 403 U.S. at 392-99. In this case,
neither Defendants are federal officials.
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E. Exhaustion of Administrative Remedies
The PLRA provides that "[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § l 997e(a). "There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in [federal] court." Jones v. Bock, 549
U.S. 199, 21 l (2007). The PLRA requires "immediate dismissal" of all unexhausted claims.
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005). Before filing this action, Whiting was
required to fully and properly exhaust his administrative remedies as to each claim in the
complaint. See Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.2003) ("If exhaustion was not
completed at the time of filing, dismissal is mandatory.").
The prisoner must exhaust his
administrative remedies even if the precise relief he seeks is not available through the prison
grievance system." Booth v. Churner, 532 U.S. 731, 739-41 (2001).
In order to properly
exhaust administrative remedies, Whiting is required to "tak[ e] advantage of each step the prison
holds out for resolving the claim internally and by following the critical procedural rules of the
prison's grievance process." Rothman v. Lombardi, No. 4:l lCV639 CEJ, 2012 WL 639713
at *2 (E.D. Mo. Feb. 27, 2012) (internal quotation marks and quotation omitted).
Here, failure to exhaust is apparent from the face of the complaint. See Montrose v.
Dooley, No. CIV 12-4170-RAL, 2012 WL 5509625, at *2-5 (D.S.D. Nov. 14, 2012) (citing
circuit court cases that have "held that a court may dismiss a prisoner's claim sue sponte under
its screening procedures when the failure to exhaust is obvious"); see e.g., Anderson v XYZ
Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005) ("That exhaustion is an affirmative
defense, however, does not preclude the district court from dismissing a complaint where the
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failure to exhaust is apparent from the face of the complaint, nor does it preclude the district
court from inquiring on its own motion into whether the inmate exhausted all administrative
remedies."). Whiting admits that there are administrative remedies at the RSTACF and that he
submitted administrative requests concerning Count I and III, but did not appeal those requests to
the highest level. Doc. 1 at 4, 6. Whiting made no effort to seek administrative review for
circumstances alleged in Count II, although he claims there to be no such procedure regarding
his request for review of his blood pressure treatment. Whiting has not taken advantage of each
step of the RSTACF's grievance process.
Rothman, 2012 WL 639713 at *2.
Therefore,
dismissal is appropriate at least for Counts I and III because Whiting has not exhausted his
administrative remedies. Count II fails for other reasons explained above.
III.
CONCLUSION
Therefore, it is hereby
ORDERED that Whiting's motion to proceed in forma pauperis, Doc. 2, is granted. It is
further
ORDERED that the institution having custody of Whiting is hereby directed that
whenever the amount in Whiting's trust account exceeds $10.00 monthly payments that equal
twenty percent (20%) of the funds credited to the account the preceding month be forwarded to
the United States District Court Clerk, 400 South Phillips A venue, Sioux Falls, South Dakota,
57104, pursuant to 28 U.S.C. § 1915(b)(2), until Whiting has paid the $350.00 filing fee in full.
It is finally
ORDERED that Whiting's Complaint, Doc. 1, is dismissed without prejudice under the
doctrine of tribal sovereign immunity and for failure to state a claim, lack of subject matter
jurisdiction, and failure to exhaust administrative remedies under 28 U.S.C. § 1915A.
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DA TED this C')a.d day of January, 2016.
BY THE COURT:
~Q'2
UNITED STATES DISTRICT JUDGE
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