El Tribe v. Attorney General

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 MATHIAS EL TRIBE, Case No. 1:24-cv-00090-NODJ-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS PLAINTIFF’S COMPLAINT WITH — 13 — v. PREJUDICE AND WITHOUT LEAVE TO 14 AMEND ATTORNEY GENERAL, 15 (Doc. 1) Defendant. — 16 — TWENTY-ONE DAY DEADLINE — 17 — 18 Plaintiff Mathias El Tribe (“Plaintiff”) is proceeding pro se and in forma pauperis (“IFP”) 19 in this action against Defendant “Attorney General.” (Doc. 1). Pursuant to 28 U.S.C. § 1915 , 20 federal courts must screen IFP complaints and dismiss the case if the action is “frivolous or 21 malicious,” fails to state a claim on which relief may be granted,” or seeks monetary relief against 22 an immune defendant. 28 U.S.C. § 1915 (e)(2)(B). See Lopez v. Smith, 203 F.3d 1122 , 1126-27 23 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district court to 24 dismiss [a IFP] complaint that fails to state a claim.”). 25 Screening Standard 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief…” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint may be dismissed as a matter 3 of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) 4 insufficient facts under a cognizable legal theory. See Balisteri v. Pacifica Police Dep’t, 901 F.2d 5 696, 699 (9th Cir. 1990). 6 Pleadings by self-represented litigants are to be liberally construed. See Haines v. Kerner, — 7 — 404 U.S. 519, 520-21 (1972). However, “the liberal pleading standard . . . applies only to a 8 plaintiff’s factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319 , 330 n .9 9 (1989). Furthermore, “a liberal interpretation of a civil rights complaint may not supply essential 10 elements of the claim that were not initially pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 11 1251, 1257 (9th Cir. 1997) (internal quotation marks & citation omitted), and courts “are not 12 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 , 681 13 (9th Cir. 2009) (internal quotation marks & citation omitted). 14 Courts may deny a pro se plaintiff leave to amend where amendment would be futile. 15 Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Cook, Perkiss & 16 Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242 , 247 (9th Cir. 1990)); see Lucas v. Dep’t of 17 Corr., 66 F.3d 245, 248-49 (9th Cir. 1995) (holding that dismissal of a pro se complaint without 18 leave to amend is proper only if it is clear that the deficiencies cannot be cured by amendment or 19 after the pro se litigant is given an opportunity to amend). 20 Summary of Plaintiff’s Complaint 21 On January 19, 2024, Plaintiff filed the instant complaint, a motion to proceed in forma 22 pauperis, and a motion for e-filing access. (Docs. 1-3). On February 23, 2024, Plaintiff filed a 23 motion to correct record and status under the Foreign Sovereign Immunities Act (“FSIA”). (Doc. 24 5). The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the 25 sua sponte screening requirement under 28 U.S.C. § 1915 . 26 According to Plaintiff’s pleadings, Matthew Allen McCaster is the chief and 27 representative of the Mathias El Tribe. (Docs. 1-2, 5). Plaintiff asserts while “legal proceedings 1 not adversarial in nature.” (Doc. 5). Plaintiff raises no claims against Defendant. See (Docs. 1, 2 2,5). Instead, Plaintiff asks the Court to issue a formal ruling and recognition of the Mathias El 3 Tribe as a foreign sovereign government under the FSIA. (Docs. 2, 5). Plaintiff seeks 4 clarification on the applicability of the FSIA to provide immunity in U.S. court, and the 5 application of the Foreign Assistance Act and 25 U.S.C. §5304 (e) to his tribe. (Doc. 2 at 3). 6 Additionally, Plaintiff “raises inquires about the prospect of gaining recognition as an Indian tribe 7 under 25 USC [§]5304(e) for self-determination purposes, asserting that their status aligns with 8 ‘Any Indian Tribe’ as defined in the statute and Act of Congress itself.” Id. 9 Discussion 10 “The Constitution limits Article III federal courts’ jurisdiction to deciding ‘cases’ and 11 controversies.’” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 835 (9th 12 Cir. 2012) (quoting U.S. Const. art. III, § 2). The Court’s role is neither to issue advisory 13 opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies 14 consistent with the powers granted the judiciary in Article III of the Constitution.” Thomas v. 15 Anchorage Equal Rights Comm’n, 220 F.3d 1134 , 1138 (9th Cir. 2000) (en banc). 16 “To satisfy Article III standing, ‘the plaintiff must have (1) suffered an injury in fact, (2) 17 that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 18 redressed by a favorable judicial decision.’” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 19 1037, 1042 (9th Cir. 2017) (brackets omitted) (quoting Spokeo, Inc. v. Robins (Spokeo II), 136 S. 20 Ct. 1540, 1547 (2016)). A plaintiff establishes an injury in fact, if “he or she suffered ‘an 21 invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or 22 imminent, not conjectural or hypothetical.’” Spokeo II, 136 S. Ct. at 1548 (quoting Lujan v. 23 Defenders of Wildlife, 504 U.S. 555, 560 (1992)). However, “a plaintiff does not ‘automatically 24 satisfy the injury-in-fact requirement whenever a statute grants a person a statutory right and 25 purports to authorize that person to sue to vindicate that right.’ Even then, ‘Article III standing 26 requires a concrete injury.’” Robins v. Spokeo, Inc. (Spokeo III), 867 F.3d 1108, 1112 (9th Cir. 27 2017) (citation and brackets omitted) (quoting Spokeo II, 136 S. Ct. at 1549). 1 Here, Plaintiff identifies no injury in fact and instead asks the Court to issue an advisory 2 opinion as to his “tribe’s” status under several federal statutes. See e.g., Flast v. Cohen, 392 U.S. 3 83, 96 (1968) (emphasizing that “it is quite clear that ‘the oldest and most consistent thread in the 4 federal law of justiciability is that the federal courts will not give advisory opinions.”) (internal 5 citation omitted); DHX. Inc. v. Allianz AGF MAT. Ltd., 425 F.3d 1169, 1174 (9th Cir. 2005) 6 (citation omitted). Where there is no injury in fact, currently or prospectively, there is no “live” 7 controversy, and the case is rendered moot. McQuillion v. Schwarzenegger, 369 F.3d 1091 , 1092 8 (9th Cir. 2004). Accordingly, Plaintiff’s complaint must be dismissed for lack of standing. 9 Additionally, the Court is not the appropriate forum to determine the “prospect of gaining 10 recognition as an Indian tribe.” (Doc. 2 at 3). Historically, Congress had recognized Indian tribes 11 by treaty. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57 (2d Cir. 1994). 12 In 1871, this practice ended, and tribal recognition occurred through executive orders and 13 legislation. Roberto Iraola, The Administrative Tribal Recognition Process and the Courts, 38 14 Akron L. Rev. 867 , 871 (2005). In 1978, pursuant to broad authority delegated by Congress,1 the 15 United States Department of the Interior (“DOI”) promulgated regulations establishing a formal 16 recognition process. 25 C.F.R. § 83.1-2 et seq.; see generally Kahawaiolaa v. Norton, 386 F.3d 17 1271, 1273-74 (9th Cir. 2004). Thus, the DOI is responsible for determining which tribes have 18 met the requirements to be acknowledged as a tribe with a government-to-government 19 relationship with the United States. Id. at 1274 . 20 Leave to Amend 21 Generally, Rule 15 provides that “leave [to amend] shall be freely given when justice so 22 requires.” Fed. R. Civ. P. 15(2). However, district courts are only required to grant leave to 23 amend if a complaint can be saved. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). 24 “Courts are not required to grant leave to amend if a complaint lacks merit entirely.” Id. When a — 25 — — 26 — 1 See Miami Nation of Indians of Ind., Inc. v. U.S. Dep't of the Interior, 255 F.3d 342 , 345 — 27 — (7th Cir. 2001), cert. denied, 534 U.S. 1129 (2002) (“Congress has delegated to the executive branch the power of recognition of Indian tribes without setting forth any criteria to guide the 1 | complaint cannot be cured by additional facts, leave to amend need not be provided. Doe v. 2 | United States, 58 F.3d 494, 397 (9th Cir. 1995). 3 Here, Plaintiff cannot cure the defects identified above. Plaintiff has not established a live 4 | controversy and requests relief of a type the Court is not empowered to grant. Accordingly, the 5 | Undersigned concludes that leave to amend Plaintiff's complaint would be futile. See, e.g., 6 | Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). 7 | Conclusion and Recommendations 8 For the reasons discussed above, the Undersigned RECOMMENDS that: 9 1. Plaintiffs’ complaint (Doc. 1) be DISMISSED with prejudice and without leave to 10 amend; 11 2. Plaintiff's motion for e-filing access (Doc. 3), and motion to correct record and status 12 under FSIA (Doc. 5) be DENIED AS MOOT; and 13 3. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 21 days after 16 || being served with these findings and recommendations, Plaintiff may file written objections with 17 || the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 18 | Recommendations.” Plaintiff advised that failure to file objections within the specified time 19 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 20 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 | IT IS SO ORDERED. ** | Dated: _March 12, 2024 | Wr Pr 23 UNITED STATES MAGISTRATE JUDGE — 24 — — 25 — — 26 — — 27 — — 28 — «