Opinion
8:00CV609
April 1, 2002
MEMORANDUM AND ORDER
This matter is before the court on motions to dismiss filed by the following defendants in the above-entitled action:
(1) filing no. 46, the "Motion to Dismiss" filed by defendants — Mike Johanns, Dave Heineman, Ron Ross, Dennis Loose, Ed Schulenberg, Joan Albin and Terry St. Cyr ("state defendants");
(2) filing no. 50, the "Motion to Dismiss" filed by defendants — Mary Webster and Jay Bazemore ("Tribal defendants"); and
(3) filing no. 53, the "Federal Defendants' Motion to Dismiss" filed by the following defendants insofar as they have been sued in their official capacity: Paul O'Neill, Secretary of the United States Department of the Treasury (substituted for former Secretary Lawrence H. Summers); Gale Norton, Secretary of the United States Department of the Interior (substituted for former Secretary Bruce Babbitt); John Ashcroft, United States Attorney General (substituted for former Attorney General Janet Reno); Tom Slonaker, Special Trustee for American Indians, Federal Bureau of Indian Affairs; Cora Jones, Area Director, Great Plains (Aberdeen) Area Office of the Federal Bureau of Indian Affairs; Richard Zephier, Area Contracting Officer, Great Plains (Aberdeen) Area Office of the Federal Bureau of Indian Affairs; Michael Hackett, Superintendent, Federal Bureau of Indian Affairs for the Tribes within the State of Nebraska; and Brent LaRocque, Commander, Great Plains (Aberdeen) Area Office, Law Enforcement Services, Federal Bureau of Indian Affairs ("federal defendants").
In filing nos. 1 and 4 (collectively the "Complaint"), plaintiff — Preston Wolfe, proceeding pro se on behalf of himself and also purportedly on behalf of his minor daughter, Vanna Wolfe, alleges that the foregoing defendants, together with other named and unnamed persons, participated in a conspiracy to deprive the plaintiff and his daughter of their civil rights. Preston and Vanna Wolfe reside on the Omaha Indian Reservation, Macy, Nebraska, and are members of the Omaha Tribe of Nebraska. The Complaint alleges that this action is brought pursuant to 42 U.S.C. § 1983 and 1985, among other bases of jurisdiction, claims $1,000,000 in damages, and demands injunctive and declaratory relief.
DISMISSAL OF VANNA WOLFE WITHOUT PREJUDICE
Vanna Wolfe has never appeared in this litigation. Only her father signed the Complaint, and the contents of the Complaint indicate that Vanna is a minor. Preston Wolfe, proceeding pro se, purports to bring this action in a representative capacity for himself and his minor daughter.
However, representative parties may not appear pro se on behalf of other litigants. In particular, a non-attorney parent may not appear pro se on behalf of a minor child. Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59 (2d Cir. 1990). Accord Devine v. Indian River County School Bd., 121 F.3d 576 (11th Cir. 1997), cert. denied, 522 U.S. 1110 (1998); Johns v. County of San Diego, 114 F.3d 874 (9th Cir. 1997);Osei-Afriyie v. Medical College of Pa., 937 F.2d 876 (3d Cir. 1991). "Courts have a duty to enforce this rule sua sponte, as it is designed to protect the legal interests of children." Wenger v. Canastota Cent. School Dist., 146 F.3d 123, 125 (2d Cir. 1998), cert. denied, 526 U.S. 1025 (1999);
As in Devine v. Indian River County School Bd., 121 F.3d at 581, Preston Wolfe may represent himself by virtue of 28 U.S.C. § 1654. However, he may not maintain a pro se action on behalf of Vanna Wolfe. Thus, Vanna Wolfe is not a party to the above-captioned case, and to the extent named therein as a plaintiff, her claims will be dismissed without prejudice to preserve her rights until her majority or until she is properly represented. The Clerk of Court will be directed to change the caption of the above-entitled action in the court's records to reflect that this litigation is proceeding in the name of Preston Wolfe, only, as the plaintiff.
CONSPIRACY ALLEGATIONS
According to the Complaint, "long-standing Federal, Regional, State, Local, and Tribal policies of deliberate indifference to, and active encouragement of, citizen abuse on the part of Omaha Tribal Police Officers and Child Protective Service Workers" have enabled Omaha Tribal Police Officers and Child Protective Service Workers, acting "under the badge of Federal, Tribal, and State authority" and aided by "a pernicious Code of Silence," to "violate important personal liberties with impunity." The alleged citizen abuse includes retaliation against those who question the actions of tribal police and child protective workers, persecution of citizens by Omaha Tribal Child and Adult Protective Services ("Omaha Tribal CPS"), arrest and prosecution of persons on false charges, removal of children from their homes, and, generally, "abuse of office, nepotism, and social service fraud" by Tribal officials.
Stripped of the sweeping and conclusory allegations of conspiracy and improper motive, however, the only actual conduct alleged in the Complaint as to Preston Wolfe involves the removal from his home of his minor daughter, Vanna; Vanna's placement in the care of Omaha Tribal CPS; and the filing of child abuse charges against Wolfe in the Omaha Tribal Court. Wolfe alleges that these actions taken by Omaha Tribal CPS and Omaha Tribal Law Enforcement Services ("Omaha Tribal LES") deprived him of rights secured by the First, Fifth and Fourteenth Amendments to the United States Constitution. In addition to his claims against officials of the Omaha Tribe of Nebraska, Wolfe seeks damages and injunctive relief against the federal and state defendants on the theory that those defendants have failed to discipline, train and supervise Omaha Tribal LES and Omaha Tribal CPS. Wolfe holds the state defendants responsible for his alleged injuries because Omaha Tribal CPS receives its funding pursuant to a Tribal-State contract. Similarly, Wolfe asserts that the "budget of Omaha Tribal Law Enforcement Services is paid for, completely, by the Federal Government — through both the Federal Bureau of Indian Affairs, of the U.S. Department of Interior, and the Office of Tribal Justice, of the U.S. Department of Justice." Wolfe urges that these "funding agencies" are responsible for supervising Omaha Tribal LES and have failed to do so adequately. Other than the funding and the alleged failure to supervise and train Omaha Tribal LES and CPS, no claim appears in the Complaint that federal or state defendants directly participated in the constitutional injuries allegedly inflicted on the plaintiff.
FEDERAL DEFENDANTS IN THEIR OFFICIAL CAPACITY
In filing no. 53, federal defendants — O'Neill, Norton, Ashcroft, Slonaker, Jones, Zephier, Hackett, and LaRocque, "all in their official capacity only," move for dismissal of the plaintiffs claims against them. Based on the unambiguous language of filing no. 53, this court is to consider only the named defendants in their official capacity in resolving whether to dismiss the plaintiffs claims against the federal defendants.
A suit against an official of the federal government in the officer's official capacity is considered a suit against the United States. Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir. 2000), cert. denied, 531 U.S. 898 (2000);Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998). See also Kentucky v. Graham, 473 U.S. 159, 165 (1985), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978): "Official capacity suits . . . `generally represent only another way of pleading an action against an entity of which an officer is an agent.'"
It is well established that, absent an express waiver, the doctrine of sovereign immunity bars a plaintiffs claim for money damages against the United States, its agencies, and its officers in their official capacities. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Sherwood, 312 U.S. 584, 586 (1941). "Sovereign immunity is jurisdictional in nature.' FDIC v. Meyer, 510 U.S. at 475, citing United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction"). No such waiver of sovereign immunity applies in this case.
The jurisdictional bar of sovereign immunity operates when a suit threatens to impose liability on the United States for money or property or to engender some form of coercive injunctive relief See, e.g., Dugan v. Rank, 372 U.S. 609, 620 (1963): "The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738 . . . (1947), or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.' Larson v. Domestic Foreign Corp., supra, 337 U.S. at 704 . . .; Ex parte New York, 256 U.S. 490, 502 . . . (1921)."
Although the United States has consented to suit under the Federal Tort Claims Act ("FTCA"), the FTCA does not apply to this case, and the waiver of sovereign immunity under that act does not help the plaintiff, because the FTCA does not reach federal constitutional torts. FDIC v. Meyer, 510 U.S. at 475, 477.
A "Bivens action" may be maintained against federal officials in their individual capacity for their constitutional torts. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395-97 (1971), in which the Supreme Court recognized that damages may be obtained for constitutional injuries inflicted by individual federal officials. However, a Bivens action cannot be implied directly against the United States, its agencies, and, by extension, against federal agents and employees in their official capacity. FDIC v. Meyer, 510 U.S. at 473, 484-86.
Consequently, sovereign immunity bars the plaintiffs claims against the federal defendants in their official capacity, and filing no. 53, the "Federal Defendants' Motion to Dismiss," will be granted. The disposition of filing no. 53 is without prejudice to additional pretrial motions, if appropriate, regarding claims against federal employees in their individual capacity.
STATE DEFENDANTS IN THEIR OFFICIAL CAPACITY
"[A] State is not a `person' as that term is used in [42 U.S.C.] § 1983, and is not suable under the statute, regardless of the forum where the suit is maintained." Hilton v. South Carolina Public Railways Com'n, 502 U.S. 197, 199-201 (1991), citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Thus, 42 U.S.C. § 1983 does not create a cause of action against the state of Nebraska.
Moreover, a suit against a governmental officer in the officers official capacity is the equivalent of naming the governmental entity itself as the defendant. See, e.g., Trevelen v. University of Minnesota, 73 F.3d 816, 818 (8th Cir. 1996): "The Supreme Court has interpreted the Eleventh Amendment to bar actions in federal court against a state by its citizens. . . . Additionally, the Eleventh Amendment prohibits federal-court lawsuits seeking monetary damages from individual state officers in their official capacities because such lawsuits are essentially "for the recovery of money from the state." (Citation omitted.) Accord Burk v. Beene, 948 F.2d 489, 492-493 (8th Cir. 1991): "[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself."
(Citations omitted.)
In addition, "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (emphasis in original). See Becker v. University of Nebraska, 191 F.3d 904, 908 (8th Cir. 1999): "This court has previously held that the State of Nebraska has not consented to federal court jurisdiction.' See also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 39-40 (1994): "The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribunals."
Thus, the state of Nebraska, agencies and instrumentalities of the state, and officers of the state in their official capacity cannot be made to answer to the plaintiff in this court for damages or retrospective compensatory or injunctive relief. To that extent, the plaintiffs claims against the state defendants, in their official capacity, will be dismissed with prejudice.
The Eleventh Amendment does not bar a suit against a state official when the plaintiff seeks only prospective injunctive relief to prevent future violations of federal law. Gibson v. Arkansas Dept. of Correction, 256 F.3d 718, 720 (8th Cir. 2001). As to the claims against the state defendants in their official capacity for prospective injunctive relief, the state defendants assert that the Complaint fails to state a claim that the conduct of those defendants in fact violates federal law. Because the plaintiff is proceeding pro se, the court must liberally construe his complaint. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Upon review of the limited record before this court and consideration of the strict test for dismissal under Fed.R.Civ.P. 12 (b)(6), as discussed below, the court will not, at this time, dismiss the plaintiffs claims for prospective injunctive relief against the state defendants in their official capacity.
STATE DEFENDANTS IN THEIR INDIVIDUAL CAPACITY
While the Eleventh Amendment does not compel dismissal of the plaintiffs claims for monetary relief against the state defendants in their individual capacity, the state defendants assert that the Complaint fails to state a claim upon which relief can be granted. Under Fed.R.Civ.P. 12(b)(6), in deciding a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true the plaintiff's allegations in the complaint and view them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accord Carpenter Outdoor Advertising Co. v. City of Fenton, 251 F.3d 686, 688 (8th Cir. 2001); Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). "Dismissal is proper only when the complaint on its face reveals `some insuperable bar to relief'" Duffy v. Landberg, 133 F.3d 1120, 1122 (8th Cir. 1998) (citation omitted).
Other than the broad, conclusory claims of conspiracy, the only factual assertion against the state defendants involves the alleged failure of those officials to supervise and train Omaha Tribal CPS. Even if the state defendants have a duty to train and supervise Omaha Tribal CPS, which is by no means established, a supervisory official may not be held liable under § 1983 for the constitutional violations of a subordinate on a theory of respondeat superior. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000) ("[Section] 1983 liability must be based on more than respondeat superior, or the right to control employees."). Accord Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997): "Section 1983 liability cannot attach to a supervisor merely because a subordinate violated someone's constitutional rights." See alsoTlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (supervisor liability arises only if a supervisor directly participates in the constitutional violation, or failure to train constitutes the moving force which caused the alleged constitutional deprivation).
However, the source of the state defendants' duty, if any, to supervise and train Omaha Tribal CPS and the personal involvement of one or more of the state defendants, if any, in the depravation of the plaintiffs civil rights are matters which should be resolved on the basis of a more developed record. Therefore, the remaining grounds for dismissal asserted by the state defendants are denied at this time, without prejudice to reassertion of those matters in the context of a motion for summary judgment or other appropriate pretrial motion.
TRIBAL DEFENDANTS
The claims against defendants — Mary Webster and Jay Bazemore are set forth in filing no. 4, ¶¶ 12-17. Essentially, those claims relate to Mary Webster's role as an employee of the Winnebago Youth Shelter of the Winnebago Tribe of Nebraska, where Omaha Tribal CPS placed Vanna Wolfe for some time after her removal from her father's custody. Jay Bazemore supervises the employees of the Winnebago Youth Shelter. Indian tribes possess sovereign immunity. See, e.g., Val-U Construction Co. v. Rosebud Sioux Tribe, 146 F.3d 573, 576 (8th Cir. 1998): "It is well established that Indian tribes possess the same common-law immunity from suit traditionally enjoyed by sovereign powers." No basis for a waiver of sovereign immunity is apparent in this litigation. Thus, as in the case of the federal and state defendants, the doctrine of sovereign immunity bars the plaintiffs claims against the Tribal defendants in their official capacity. Also, in accordance with the rest of this Memorandum and Order, the validity of the plaintiffs claims against the Tribal defendants in their individual capacity will await either a factual record or other appropriate pretrial motion.
THEREFORE, IT IS ORDERED:
(1) That Vanna Wolfe is not a party to the above-captioned case, and to the extent named therein as a plaintiff, her claims are dismissed without prejudice; and in the court's records, the caption of the above-entitled action shall be changed to reflect that this litigation is proceeding in the name of Preston Wolfe, only, as the plaintiff;
(2) That filing no. 46, the "Motion to Dismiss" filed by defendants-Mike Johanns, Dave Heineman, Ron Ross, Dennis Loose, Ed Schulenberg, Joan Albin and Terry St. Cyr, is granted in part and denied in part as follows:
(a) As to the state defendants in their official capacity, filing no. 46 is granted insofar as the plaintiff seeks damages and any form of monetary and retrospective injunctive relief;
(b) As to the state defendants in their official capacity, filing no. 46 is denied insofar as the plaintiff seeks prospective injunctive relief, only, to prevent future violations of federal law;
(c) As to the state defendants in their individual capacity, filing no. 46 is denied insofar as the plaintiff claims damages;
(3) That filing no. 50, the "Motion to Dismiss" filed by defendants — Mary Webster and Jay Bazemore, is granted in part and denied in part as follows:
(a) As to those defendants in their official capacity, filing no. 50 is granted;
(b) As to those defendants in their individual capacity, filing no. 50 is denied;
(4) That filing no. 53, the "Federal Defendants' Motion to Dismiss" filed by the following defendants in their official capacity: Paul O'Neill, Secretary of the United States Department of the Treasury (substituted for former Secretary Lawrence H. Summers); Gale Norton, Secretary of the United States Department of the Interior (substituted for former Secretary Bruce Babbitt); John Ashcroft, United States Attorney General (substituted for former Attorney General Janet Reno); Tom Slonaker, Special Trustee for American Indians, Federal Bureau of Indian Affairs; Cora Jones, Area Director, Great Plains (Aberdeen) Area Office of the Federal Bureau of Indian Affairs; Richard Zephier, Area Contracting Officer, Great Plains (Aberdeen) Area Office of the Federal Bureau of Indian Affairs; Michael Hackett, Superintendent, Federal Bureau of Indian Affairs for the Tribes within the State of Nebraska; and Brent LaRocque, Commander, Great Plains (Aberdeen) Area Office, Law Enforcement Services, Federal Bureau of Indian Affairs, is granted, and the plaintiffs claims are dismissed with prejudice as against each of those defendants in his or her official capacity;
(5) That the disposition of filing nos. 46, 50 and 53 is without prejudice to the filing of additional pretrial motions, if appropriate; and
(6) That pursuant to Fed.R.Civ.P. 54(b), this judgment is not a final and appealable order until after entry of judgment adjudicating the claims and rights of all the parties.