Spencer v. Lewis et al, No. 2:2022cv00297 - Document 26 (E.D. Wash. 2023)
Court Description: ORDER GRANTING 19 DEFENDANTS' MOTION TO DISMISS; denying as moot 21 Plaintiffs Motion to Strike. File is CLOSED. Signed by Chief Judge Stanley A Bastian. (TNC, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)
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Spencer v. Lewis et al Doc. 26 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Oct 31, 2023 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 KYLE R. SPENCER, 10 Plaintiff, 11 v. No. 2:22-CV-00297-SAB 12 GERALD LEWIS; GEORGE MENINICK, 13 SR.; CHARLENE TILLEQUOTS; ORDER GRANTING 14 CHRISTOPHER WALLAHEE; TERRY DEFENDANTS’ MOTION 15 HEEMSAH, SR.; JEREMEY TAKALA; TO DISMISS; CLOSING 16 RUTH JIM; DELAND OLNEY; TERRY FILE 17 GOUDY-RAMBLER; PHILIP RIGDON; 18 TAMARA SALUSKIN; RONNA 19 WASHINES; TED STRONG; ALYSSA 20 BUCK-WRIGHT; TUCELIA PALMER; 21 MARY WAHPAT, and ANTHONY 22 GEORGE JR., 23 Defendants. 24 25 Before the Court are Defendants’ Motion to Dismiss, ECF No. 19 and 26 Plaintiff’s Motion to Strike, ECF No. 21. Defendants are represented by Ethan A. 27 Jones and Marcus Shirzad. Plaintiff is representing himself. The motions were 28 heard without oral argument. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; CLOSING FILE ~ 1 Dockets.Justia.com Plaintiff filed this civil action on November 28, 2022. ECF No. 1. The Court 1 2 granted Defendants’ Motion to Dismiss, but granted Plaintiff leave to file an 3 Amended Complaint. Plaintiff filed his Amended Complaint on May 8, 2023. ECF 4 No. 17. Plaintiff is suing various Yakama Nation Tribal Council members and 5 6 Yakama Nation Judges. He asserts these individuals have violated his fundamental 7 rights under the Fifth and Fourteenth Amendment, Uniform Child Custody 8 Jurisdiction and Enforcement Act (UCCJEA), the Indian Civil Rights Act, the 9 Indian Child Welfare Act, his right to parental association, his right to equal 10 protection under the laws, and his right to malicious and illegal court actions. Defendants move to dismiss Plaintiff’s Amended Complaint with prejudice 11 12 for lack of subject matter jurisdiction. In the alternative, they assert Plaintiff’s 13 Amended Complaint lacks a cognizable legal theory or sufficient facts to support a 14 plausible claim for relief. Motion Standard 15 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for 16 17 dismissal if the plaintiff’s complaint fails to sufficiently allege federal subject 18 matter jurisdiction. 1 However, “jurisdictional dismissals in cases premised on 19 federal-question jurisdiction are exceptional” and are permitted only when the 20 claim is “patently without merit.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th 21 Cir. 1987). A jurisdictional determination is intertwined with the merits of a case 22 when a statute provides the basis for both subject-matter jurisdiction and the 23 plaintiff's substantive claim for relief. Safe Air for Everyone v. Meyer, 373 F.3d 24 1035, 1039-40 (9th Cir. 2004). 25 26 27 1 Federal Rule 12(h)(3) states: If the court determines at any time that it lacks 28 subject-matter jurisdiction, the court must dismiss the action. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; CLOSING FILE ~ 2 1 Rule 12(b)(6) allows a party to move for dismissal if the plaintiff has failed 2 to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). On a 3 motion to dismiss, all well-pleaded allegations of material fact are taken as true 4 and construed in a light most favorable to the non-moving party. Wyler Summit 5 P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Plaintiff’s Complaint 6 7 The following facts are viewed in the light most favorable to Plaintiff, the 8 non-moving party. 9 In August 2021, Plaintiff filed a Petition in Spokane County Superior Court 10 for joint custody of his children. Plaintiff subsequently discovered that the Yakama 11 Nation tribal court has issued court actions back to July 2018. 12 Around July 11, 2018, Crystal Buck, Plaintiff’s partner, was arrested and 13 found guilty of Fourth Degree Assault against Plaintiff. A No Contact restraining 14 order was issued against Defendant. Between July 12-18, 2018, Ms. Buck violated 15 the domestic violation by taking their children. 16 On July 16, 2018, Yakama Nation Judge Ted Strong awarded Ms. Buck 17 temporary custody for 90 days. Plaintiff asserts that Judge Strong was not an active 18 and practicing judge in the Yakama Nation tribal court system. 19 Plaintiff alleges that he never received any notices of petitions, hearings, or 20 orders. He asserts his children are not enrolled, and he and Ms. Buck do not live 21 within the boundaries of the Yakama Reservation. Yakama Nation judges continued to issue orders that were based on false 22 23 and incorrect facts and continued to hold hearing where Plaintiff was not giving 24 notice. 25 Ms. Buck moved out of the residence she shared with Plaintiff on April 11, 26 2021. Ms. Buck had been residing with Plaintiff continuously during the entire 27 period she was filing court cases and receiving judgments in Yakama Nation court, 28 and she knowingly violated the orders. Notably, Plaintiff and Ms. Buck had a third ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; CLOSING FILE ~ 3 1 child during this time. 2 On April 30, 2021, Yakama Judge Mary Wahpat had ex parte 3 communications with Ms. Buck. On July 21, 2021, a custody trial was held in 4 Yakama Nation tribal court. Plaintiff was present. Custody was awarded to Ms. 5 Buck. 6 Plaintiff appealed that decision and submitted grievances to the Yakama 7 Nation tribal court. He also spoke to the executive members of the Yakama Tribal 8 Council. They did not respond, ignored him, and have not addressed any of his 9 complaints. 10 Plaintiff is seeking the following relief: (1) declaratory relief that the 11 Yakama Nation does not have jurisdiction over his matters; (2) declaratory relief 12 that Plaintiff was not properly service; and (3) injunctive relief that prevents the 13 Yakama Nation courts from interfering with Plaintiff’s pursuit of his parental 14 rights. Plaintiff is asking that all cases in the Yakama Tribal court be dismissed 15 with prejudice. He is seeking $3,000,000 in damages for emotional pain and 16 suffering. 17 18 Applicable Law Suits against Indian tribes are barred by sovereign immunity absent a clear 19 waiver by the tribe or congressional abrogation. Okla. Tax. Comm’n v. Citizen 20 Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991). Tribal sovereign 21 immunity may be forfeited if the Tribe fails to assert it. Acres Bonusing, Inc. v. 22 Marston, 17 F.4th 901, 907 (9th Cir. 2021). That said, although sovereign 23 immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) of the Federal Rules 24 of Civil Procedure is the proper vehicle for invoking sovereign immunity from suit. 25 Id. (quotation omitted). Consequently, when a defendant timely and successfully 26 invokes tribal sovereign immunity, the court lacks subject matter jurisdiction. Id. at 27 908. On the other hand, tribal sovereign immunity does not bar actions for 28 damages against individual tribal employees and tribal agents in their personal ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; CLOSING FILE ~ 4 1 capacities. Id. 2 A suit against a governmental official may be a suit against the sovereign, 3 but not always. In such contexts, courts look to whether the sovereign is the real 4 party in interest to determine whether sovereign immunity bars the suit. Id. 5 (quotation omitted). The critical question is whether the remedy sought is truly 6 against the sovereign. Id. (quotation omitted). An official-capacity claim, although 7 nominally against the official, “in fact is against the official’s office and thus the 8 sovereign itself.” Id. Because the relief requested effectively runs against the 9 sovereign, the sovereign is the real party in interest, and sovereign immunity may 10 be an available defense. Id. 11 Suits against officials in their personal capacities are different. In those 12 cases, the plaintiff seeks to impose individual liability upon a government officer 13 for actions taken under color of law. Id. (quotation omitted). There, the real party 14 in interest is the individual, not the sovereign. Id. In that case, although the 15 defendants may be able to assert personal immunity defenses, sovereign immunity 16 does not bar the suit. Id. (quotation omitted) 17 Tribal judges are afforded absolute judicial immunity. Id.at 914. Judicial 18 immunity does not apply in two circumstances: (1) a judge is not immune from 19 liability for nonjudicial actions; and (2) a judge is not immune for actions, though 20 judicial in nature, taken in the complete absence of all jurisdiction. Id. (quotation 21 omitted). 22 23 Discussion Here, all Defendants are afforded sovereign immunity or absolute immunity 24 from this suit. The real party in interest is the Yakama Tribe. Plaintiff is asking that 25 all the cases involving him in Yakama Tribal Court be dismissed. Such relief will 26 operate against the Yakama Tribe and not the individually-named Defendants. 27 Second, based on the allegations in the Complaint, it is clear Plaintiff is suing the 28 Tribal Council members in their official capacity, and as such, tribal sovereign ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; CLOSING FILE ~ 5 1 immunity bars the suit. Finally, the tribal judges are afforded absolute immunity. 2 Plaintiff has not alleged facts to support any exceptions to the absolute immunity 3 doctrine. 4 Based on the doctrines of sovereign and absolute immunity, the Court does 5 not have subject matter jurisdiction over Plaintiff’s Amended Complaint. As such, 6 dismissal is proper, with prejudice. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Defendants’ Motion to Dismiss, ECF No. 19, is GRANTED. 9 2. For docket purposes only, Plaintiff’s Motion to Strike, ECF No. 21, is 10 DENIED, as moot. 11 IT IS SO ORDERED. The Clerk of the Court is hereby directed to file this 12 Order, provide copies to counsel and pro se Plaintiff, and close the file. 13 DATED this 31st day of October 2023. 14 15 16 17 18 19 20 Stanley A. Bastian Chief United States District Judge 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; CLOSING FILE ~ 6
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