Lee v. Cleve Her Many Horses

• Decision Date: 30 March 2014
• Docket Number: CIV. 13-5019-JLV
• Parties: PATRICK A. LEE, FLOYD HAND, and WILLIAM J. BIELECKI, SR., Plaintiffs, v. CLEVE HER MANY HORSES, Acting Superintendent of Bureau of Indian Affairs, Pine Ridge Agency, Pine Ridge Indian Reservation, South Dakota; and RUTH BROWN, JIM MEEKS, CHARLES L. CUMMINGS, CRAIG DILLON, STANLEY LITTLE WHITE MAN, BERNIE SHOT WITH ARROW, PAUL LITTLE, BARBARA DULL KNIFE, JAMES CROSS, LYDIA BEAR KILLER, DANIELLE "DANI" LEBEAU, TROY "SCOTT" WESTON, DAN RODRIGUEZ, JACQUELINE F. SIERS, GARFIELD STEELE, KEVIN YELLOW BIRD STEELE, IRVING PROVOST, ROBIN TAPIO, LAWRENCE "LARRY" EAGLE BULL, JOHN HASS, BETTE GOINGS, and TATEWIN MEANS, each in their individual capacity, Defendants.
• Court: U.S. District Court — District of South Dakota

PATRICK A. LEE, FLOYD HAND, and WILLIAM J. BIELECKI, SR., Plaintiffs, v. CLEVE HER MANY HORSES, Acting Superintendent of Bureau of Indian Affairs,Pine Ridge Agency, Pine Ridge Indian Reservation, South Dakota; and RUTH BROWN,JIM MEEKS, CHARLES L. CUMMINGS, CRAIG DILLON, STANLEY LITTLE WHITE MAN,BERNIE SHOT WITH ARROW, PAUL LITTLE, BARBARA DULL KNIFE, JAMES CROSS,LYDIA BEAR KILLER, DANIELLE "DANI" LEBEAU, TROY "SCOTT" WESTON, DAN RODRIGUEZ,JACQUELINE F. SIERS, GARFIELD STEELE, KEVIN YELLOW BIRD STEELE,IRVING PROVOST, ROBIN TAPIO, LAWRENCE "LARRY" EAGLE BULL,JOHN HASS, BETTE GOINGS, and TATEWIN MEANS,each in their individual capacity, Defendants.

CIV. 13-5019-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

Dated March 30, 2014

ORDER

INTRODUCTION

On April 3, 2013, plaintiffs Patrick A. Lee, Floyd Hand and William J. Bielecki, Sr., each appearing pro se, filed an amended complaint against thedefendants.¹ (Docket 9). The amended complaint seeks a writ of mandamus against all the defendants and includes the following request for relief: (1) protection for Mr. Lee, as Chief Judge of the Oglala Sioux Tribal Court, from removal by the Oglala Sioux Tribe ("OST") Tribal Council; (2) protection for Rhonda Two Eagles, as OST Tribal Secretary, from removal by the OST Tribal Council; (3) protection for Mr. Bielecki from removal from the Pine Ridge Indian Reservation by the OST Tribal Council; (4) protection of the Treaty Council Members from arbitrary arrest; (5) protection for the rights of the Oyate (people) against entrapment by a despotic form of government; (6) protection for freedom of the press and free speech pursuant to Article XII of the OST Bill of Rights; and (7) that defendant Cleve Her Many Horses, as Acting Superintendent of the Bureau of Indian Affairs of Pine Ridge Agency of the Pine Ridge Indian Reservation ("BIA"), be ordered to enforce the civil rights of the people pursuant to the Indian Civil Rights Act of 1968 and other federal statutes. Id. at p. 33.

On May 23, 2013, defendants Ruth Brown, Jim Meeks, Charles L. Cummings, Craig Dillon, Stanley Little White Man, Bernie Shot With Arrow, Paul Little, Barbara Dull Knife, James Cross, Lydia Bear Killer, DanielleLebeau, Troy Weston, Dan Rodriguez, Jacqueline F. Siers, Garfield Steele, Kevin Yellow Bird Steele, Irving Provost, Robin Tapio, Lawrence Eagle Bull, John Haas,² Bette Goings, and Tatewin Means (jointly referred to as the "individually named defendants") filed a motion to dismiss plaintiffs' complaint. (Docket 28). Among other reasons, the motion seeks dismissal because: (1) pursuant to Fed. R. Civ. P. 12(b)(1) the court lacks subject matter jurisdiction; (2) the amended complaint seeks redress over exclusively internal tribal matters; and (3) pursuant to Rule 12(b)(6) the amended complaint fails to state a claim for relief. Id. at p. 2. On June 13, 2013, defendant Acting Superintendent Her Many Horses filed a motion to dismiss plaintiffs' amended complaint pursuant to Rules 12(b)(1), 12(b)(6) and 19(b). (Docket 33).

Following a number of extensions for completion of briefing, defendants' motions to dismiss are ripe for resolution. For the reasons stated below, the individually named defendants' motion to dismiss (Docket 28) is granted and Mr. Her Many Horses' motion to dismiss (Docket 33) is granted.

STANDARD OF REVIEW

A pro se complaint must be liberally construed. "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards thanformal pleading drafted by lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal citations and quotation marks omitted). Pro se pleadings are to be construed liberally, but pro se litigants are still expected to comply with procedural and substantive law.³ Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984). "While a court generally affords pro se filings a liberal construction, a litigant's pro se status does not excuse him from reading the Federal Rules of Civil Procedure." Jiricko v. Moser & Marsalek, P.C., 184 F.R.D. 611, 615 (E.D. Mo. 1999), aff'd, 187 F.3d 641 (8th Cir. 1999) (referencing McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.").

"[P]ro se litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a claim as a matter of law." Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006). "A pro se [complaint] should be 'interpreted liberally and . . . should be construed to encompass any allegation stating federal relief.' " Bracken v. Dormire, 247 F.3d 699, 704 (8th Cir. 2001) (citing White v. Wyrick, 530 F.2d 818, 819 (8th Cir.1976)). "A remedial interpretation of this kind often involves supplying legal or factual statements that the [complaint] should contain, or relaxing the rule that requires such statements, where it reasonably appears that they were omitted merely for lack of legal know-how." Id. With that background, the court takes up defendants' motions to dismiss the amended complaint.

Rule 12 provides in part:

(b) . . . a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

. . . .

(6) failure to state a claim upon which relief can be granted . . . .

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. . . . No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Fed. R. Civ. P. 12(b)(1) & (6).

"In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or onthe factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal citation omitted). "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion [to dismiss] is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id. (internal citation omitted). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction the court must "accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party." Great Rivers Habitat Alliance v. Federal Emergency Management Agency, 615 F.3d 985, 988 (8th Cir. 2010). "The burden of proving federal jurisdiction, however, is on the party seeking to establish it, and this burden may not be shifted to the other party." Id. (internal quotation marks and brackets omitted).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations, quotation marks and brackets omitted). The "plausibility standard" at the pleading stage requires a showing greater than the mere possibility of misconduct yet less than the probability of misconduct.Id. at 556-58. To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570) (other internal citation omitted). The Court in Iqbal expounded on the "plausibility standard" articulated in Twombly:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " . . .

[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. . . . [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, thecomplaint has alleged-but it has not "show[n]"—"that the pleader is entitled to relief."

556 U.S. at 678-79 (internal citations omitted). See also Taxi Connection v....