Opinion
EP-06-CV-137-PRM.
November 2, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Plaintiff Jesus Alfredo Pais's ("Pais ") pro se "Complaint Under 42 U.S.C. § 1983" ("Complaint") [Docket No. 3], received on April 7, 2006, and filed on July 13, 2006. Therein, Pais claims Tigua Nation Governor Art Sinclair ("Sinclair") employed him as a laborer and cook. Pais asserts that on October 1, 2005, his supervisor, Paul Andrade ("Andrade"), took him to work at the Chile Cote Ranch located on the Tigua Reservation. Pais alleges that while at the ranch, Andrade assaulted and then refused to pay him. Pais seeks monetary damages for purported constitutional violations and torts committed against him.
The Tigua Nation is also known as the Ysleta del Sur Pueblo Indian Tribe of Texas.
On July 13, 2006, the United States Magistrate Judge to whom the Court referred this matter, pursuant to 28 U.S.C. § 636(b)(1)(B), issued a Report and Recommendation ("Report") [Docket No. 4]. To date, Pais has not filed objections to the Report. The Court has therefore examined the Report for plain error. For the reasons which are discussed in the Report and which are herein incorporated by reference, the Magistrate Judge recommended that the Court dismiss the Complaint for failure to state a claim upon which relief may be granted.
Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court may, on its own motion, refer a pending matter to a United States Magistrate Judge for Report and Recommendation ("Report"). 28 U.S.C. § 636(b)(1)(B). The non-prevailing party may contest the Report by filing written objections within ten days being served with a copy of the Report. Id. The objections must specifically identify those findings or recommendations which the losing party wishes the district court to consider. Id. A district court need not consider frivolous, conclusive, or general objections. Battle v. United States Parole Comm'n, 834 F.2d 419 (5th Cir. 1987). A district court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the party objects; and it may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). A party's failure to file written objections to the Report within ten days shall bar that party from de novo review by a district court. Id.
See Morin v. Moore, 309 F.3d 316, 320 (2002) (stating that a litigant's failure to file written objections to magistrate judge's report within ten days of service mandates plain-error review on appeal); United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) ("[a] party who fails to file written objections to a magistrate judge's proposed findings and recommendations waives the objection, and on appeal we will review the issue for plain error only."); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (explaining that a party who fails to file written objections timely to the findings of fact and conclusions of law in a magistrate's report and recommendation shall be barred from appealing the factual findings and legal conclusions adopted by the district court, except in cases of plain error).
As the Magistrate Judge noted in his Report, Pais claimed that Defendants were members of the Tigua Nation, and that the alleged misconduct occurred on the Tigua Reservation. Native American tribes have long enjoyed the status of "domestic dependent nations." Absent clear congressional or tribal waiver, common law principles of sovereign immunity apply to Native American tribes. The Tigua Nation enjoys the status of a federally recognized tribe under the Ysleta Del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act of 1987. Since the Tigua Nation has waived tribal immunity only regarding the State's gaming statutes, Defendants are immune from suit to the extent Pais sues them in their official capacities. Moreover, since Pais failed to allege that Defendants acted under color of state law or to assert Sinclair's personal involvement in any misconduct, Pais has not alleged facts sufficient to state a section 1983 claim. Additionally, since Pais does not allege that Defendants acted as federal agents, even a liberal reading of his Complaint does not support a Bivens claim or a cause of action under the Federal Tort Claims Act. Finally, since Native American tribes are deemed citizens of the state in which they are located for the purposes of jurisdiction, none of the elements of diversity jurisdiction are present. Consequently, the Court is without jurisdiction to consider Pais's claims.
Rep't Recom. Magis. Judge, Docket No. 4, at 1-2.
Cherokee Nation v. State of Georgia, 30 U.S. (5 Pet.) 1, 8 (1831).
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978); Oklahoma Tex. Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509 (1991).
See 25 U.S.C. § 1300g-1, et seq. (restoring all rights and privileges of the tribe and members of the Tigua Nation under any federal treaty, statute, executive order, agreement, or under any other authority of the United States).
Id.; State of Texas v. Del Sur Pueblo, 220 F.Supp.2d 668, 692 (W.D. Tex. 2002), aff'd, 69 Fed. Appx. 659 (5th Cir. 2003); State of Texas v. Ysleta del Sur Pueblo, 2005 WL 2367782 (W.D. Tex. Sept. 27, 2005) (not selected for publication in the Federal Reporter).
To state a section 1983 claim, a plaintiff must allege facts showing a violation of a right secured by the Constitution or laws of the United States by a person acting under the color of state law. Moore v. Willis Independent School Dist., 233 F.3d 871, 874 (5th Cir. 2000).
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The Federal Tort Claims Act ("FTCA") waives that immunity for injury caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). By its terms, this waiver of sovereign immunity only applies when the tortfeasor acts within the scope of his employment. But even if the tortfeasor's conduct is within the scope of his government employment, the FTCA does not waive sovereign immunity for certain enumerated intentional torts, including "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" unless the government actor was an investigative or law enforcement officer. 28 U.S.C. § 2680(h).
See Schantz v. White Lightning, 502 F.2d 67, 70 (8th Cir. 1974) (finding no diversity jurisdiction where non-Indian plaintiffs sued a tribe located in the same state).
Further, the Indian Civil Rights Act ("ICRA") requires tribal governments to provide equal protection and due process guarantees similar to those embodied in the Bill of Rights and the Fourteenth Amendment. However, tribal courts, not federal district courts, must hear claims of ICRA violations. Finally, the instant case is subject to dismissal under the tribal exhaustion rule requiring a litigant to exhaust tribal remedies before filing a complaint in federal district court. Consequently, it is premature for the Court to consider the merits of Pais's claims until Pais has exhausted the remedies of the tribal court system.
25 U.S.C.A. § 1301- 1303 (West 2006 rev.).
Akins v. Penobscot Nation, 130 F.3d 482, 486 (1st. Cir. 1997) (citing Santa Clara Pueblo, 436 U.S. at 56).
See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857 (1985) (requiring exhaustion of tribal remedies before federal courts may entertain an action under federal question jurisdiction).
After independently examining the record in this cause for plain error, the Court concludes that the Magistrate Judge's proposed findings of fact and conclusions of law are correct, and that it should adopt his recommendation in its entirety. Accordingly, the Court enters the following orders:
1. The Court hereby ADOPTS and APPROVES the United States Magistrate Judge's Report and Recommendation filed on July 13, 2006.
2. Plaintiff Jesus Alfredo Pais's pro se "Complaint Under 42 U.S.C. § 1983" [Docket No. 3], filed on July 13, 2006, is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.