Dubray v. Rosebud Housing Authority

• Decision Date: 06 May 1983
• Docket Number: No. CIV82-3077.,CIV82-3077.
• Citation: 565 F. Supp. 462
• Parties: Karen DUBRAY, Elora Hein and Lila Young, Plaintiffs, v. ROSEBUD HOUSING AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of South Dakota

565 F. Supp. 462

Karen DUBRAY, Elora Hein and Lila Young, Plaintiffs, v. ROSEBUD HOUSING AUTHORITY, et al., Defendants.

No. CIV82-3077.

United States District Court, D. South Dakota, C.D.

May 6, 1983.

COPYRIGHT MATERIAL OMITTED

LeAnn Larson LaFave, Joseph E. Ellingson and Alvin R. Pahlke, Tobin Law Offices, Winner, S.D., for plaintiffs.

Dennis H. Hill, Rapid City, S.D. James F. Wagenlander, Denver, Colo., for defendants.

ORDER

BOGUE, Chief Judge.

The Defendants in the above-entitled matter filed extensive motions to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The three named Plaintiffs in this case filed a Complaint against the Defendants arising out of the alleged wrongful discharge of the Plaintiffs from their positions of employment with the Rosebud Housing Authority (hereinafter RHA). The Defendants include the RHA, its managing director, and several members of the RHA Board of Directors. Additionally, the Plaintiffs have named the United States Department of Housing and Urban Development (HUD), and HUD employe, Ann Hinson, as defendants. The individual defendants are sued both in their official and in their individual capacities. Specifically, the Complaint contains claims against the RHA defendants for violations of the Plaintiffs' rights under the United States Constitution (Count I); a claim against the RHA defendants and HUD Defendant Hinson for an alleged conspiracy to violate the Plaintiffs' civil rights, under 42 U.S.C. § 1985(3) (Count II); a claim against the RHA Defendants and HUD Defendant Hinson for their alleged neglect in failing to prevent such a conspiracy, pursuant to 42 U.S.C. § 1986 (Count III); a claim against RHA Defendants Dunham, Big Crow, Swift and the RHA itself under the doctrine of respondeat superior (Count IV); a claim against both the RHA and HUD for alleged violation of federal regulations governing the administration of Housing Authority programs (Count V); and claims against the RHA Defendants under tribal law for defamation (Count VI), for violation of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303 (Count VII), and for violation of the Rosebud Sioux Tribe Constitution (Count VIII). The Court will address the Defendants' Motions to Dismiss as they apply to each of these separate counts of the Plaintiffs' Complaint.

The Plaintiffs have correctly stated the rule concerning the method of testing the legal sufficiency of a complaint under Rule 12(b)(6). A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiffs are entitled to no relief under any state of facts which could be proved in support of their claims. In passing on a motion to dismiss, all material allegations in the complaint are taken as admitted, with all such allegations construed favorably to the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Otherwise stated, the question is whether in a light most favorable to the plaintiffs, and with every doubt resolved in their behalf, the complaint states any valid claim for relief. The court may dismiss a complaint pursuant to Rule 12(b)(6) only when the allegations of the complaint itself clearly demonstrate that they do not have a claim. See, 5 Wright & Miller; Federal Practice & Procedure, Civil, § 1357.

Plaintiffs admitted that they used a format in constructing their complaint which created confusion concerning the applicability of each count to the specific defendants. The Plaintiffs attempted to restate and reallege the preceding paragraphs at the beginning of each count. But it was clear from the conduct alleged, that each count was not intended to apply to all defendants, nor was the incorporation of all preceding paragraphs intended to have that result. Because of the confusion, the Defendant HUD moved to strike those paragraphs of the Complaint which purported to restate and reallege the preceding paragraphs of the Complaint. Although a ruling on the motion to strike is not necessary at this time, it is important that the Court state its conclusions that the Complaint cannot fairly be read to state a claim against all defendants in each of the eight counts. Each count refers to the specific defendants to which that count applies.

Count I of the Plaintiffs' Complaint sets forth the Plaintiffs allegation that the RHA Defendants wrongfully charged the Plaintiffs with misconduct in the course of terminating them from their positions with the RHA. As a result of the alleged wrongful conduct of the RHA Defendants, the Plaintiffs contend that their rights under the first and fifth amendments to the United States Constitution were violated. Count I applies only to the Defendant RHA, and individual Defendants LaPointe, Dunham, Big Crow and Swift. See, Paragraph 8 of the Complaint. This Court concludes that the Plaintiffs have failed to state a claim against the RHA Defendants in Count I of the Complaint. The United States Constitutional limitations do not apply to tribes, to tribal agencies, or to individual tribal officials. Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The Rosebud Housing Authority was established by the Rosebud Sioux Tribal Council in the exercise of its powers of self-government. The Rosebud Housing Authority operates in connection with the United States Department of Housing and Urban Development in the development and operation of housing projects on the Rosebud Reservation. But this Court must reject the Plaintiffs' claim that the RHA does not possess attributes of tribal sovereignty and is sufficiently linked to HUD that it may be considered an agency of the federal government, rather than of the tribe. Instead, this Court is compelled to conclude that the RHA is a tribal agency, to which the limitations of the United States Constitution do not apply. Thus, the constitutional claims asserted by the Plaintiffs under the first, fifth or fourteenth amendments, fail to state a claim against RHA and the RHA Defendants in both their official and their individual capacities. See, Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir.1980); Bruette v. Knope, 554 F.Supp. 301 (E.D.Wis.1983); Cohen, Handbook of Federal Indian Law (1982 ed.) at p. 664.

In Count II of the Complaint, the Plaintiffs allege that the RHA Defendants and HUD Defendant Hinson engaged in "a concerted and joint effort to deprive Plaintiffs, individually, and as members of the class of RHA employees" of their constitutional rights under the first and fifth amendments of the United States Constitution. In this manner, the Plaintiffs have attempted to assert a claim for an alleged conspiracy to violate their civil rights under 42 U.S.C. § 1985(3). In order to state a claim under § 1985(3) it must be alleged that (1) the defendants conspired, (2) for the purpose of depriving any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws, that (3) one or more of the conspirators did or caused to be done any act in furtherance of the conspiracy, and (4) as a result, another was injured in his person or property or deprived of having and exercising any vital privilege of a citizen. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). The first requirement of Griffin is the allegation of a conspiracy. It is well settled that conclusory allegations of a conspiracy are insufficient to state a claim under § 1985(3). Slotnick v. Garfinkle, 632 F.2d 163 (1st Cir.1980). There must be some showing of facts to support a conspiracy claim. Plaintiffs allege in count II, "a concerted and joint effort" on the part of the RHA Defendants and HUD Defendant Hinson, to deprive Plaintiffs of their civil rights. The factual allegations are set forth in paragraphs 1 through 25 of the Complaint. The only allegation concerning Defendant Hinson is that the "HUD Defendants" failed to correct the RHA actions in dismissing the Plaintiffs. See, Paragraph 25. This allegation, by itself, provides insufficient factual basis to support a claim that HUD, or its employee Hinson, participated with the RHA Defendants in a conspiracy to deprive Plaintiffs of their civil rights.

The second requirement of Griffin means that in order to state a claim under § 1985(3), it must be alleged that the conspirators were motivated by an invidiously discriminatory animus toward a particular class of persons, which included the Plaintiffs. Means v. Wilson, 522 F.2d 833, 839 (8th Cir.1975). The class of persons against which the conspirators' discriminatory bias is directed must be a clearly defined and distinct class. Cameron v. Brock, 473 F.2d 608 (6th Cir.1973). The Plaintiffs must demonstrate a relationship between themselves and the other members of the putative class in order to establish their own membership in that class. Means v. Wilson, 522 F.2d at 840. Further, the characteristics or attributes that define the class must (1) be the demonstrated relationship shared by the Plaintiffs and the other class members, and (2) be the motivating focus of the conspirators' discriminatory animus. Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir.1975). Plaintiffs contend that they are members of the "class of RHA employees who have been discriminated against because of their associations, and because of their expression of dissatisfaction with the RHA Board of and executive director." But this statement begs the question of whether an identifiable class exists. Certainly the requisite class cannot be defined solely by reference to the Defendants' alleged wrongful conduct. Plaintiffs liken their situation to those in which employees or other groups were viewed as "whistle blowers" and were discriminated...