Mousseaux v. US Com'r of Indian Affairs, Civ. No. 91-3005.

• Decision Date: 27 October 1992
• Docket Number: Civ. No. 91-3005.
• Parties: Rolland Richard MOUSSEAUX, a/k/a Rolland Richard Driver, Plaintiff, v. UNITED STATES COMMISSIONER OF INDIAN AFFAIRS, Secretary of the Interior Superintendent of Rosebud Agency; Bureau of Indian Affairs; Cora Jones, Criminal Investigator, Bureau of Indian Affairs, Rosebud Agency; Woodrow Starr, Captain, Bureau of Indian Affairs Police, Rosebud Agency; Ronald Wilke, et al.; Rosebud Sioux Tribe; Janelle Reynolds, Tribal Judge; Sherman Marshall, Tribal Judge; Bob Brown, Tribal Court Attorney; Virgil Hauf, Tribal Court Attorney; Brenda Sitting Bear, Jailor; Dennis Holmes, Assistant United States Attorney; and Steve Gurue, Bureau of Indian Affairs Police, Defendants.
• Court: U.S. District Court — District of South Dakota

806 F. Supp. 1433

Rolland Richard MOUSSEAUX, a/k/a Rolland Richard Driver, Plaintiff, v. UNITED STATES COMMISSIONER OF INDIAN AFFAIRS, Secretary of the Interior Superintendent of Rosebud Agency; Bureau of Indian Affairs; Cora Jones, Criminal Investigator, Bureau of Indian Affairs, Rosebud Agency; Woodrow Starr, Captain, Bureau of Indian Affairs Police, Rosebud Agency; Ronald Wilke, et al.; Rosebud Sioux Tribe; Janelle Reynolds, Tribal Judge; Sherman Marshall, Tribal Judge; Bob Brown, Tribal Court Attorney; Virgil Hauf, Tribal Court Attorney; Brenda Sitting Bear, Jailor; Dennis Holmes, Assistant United States Attorney; and Steve Gurue, Bureau of Indian Affairs Police, Defendants.

Civ. No. 91-3005.

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

October 27, 1992.

COPYRIGHT MATERIAL OMITTED

Roland Richard Mousseaux, pro se.

David L. Zuercher, U.S. Attorney's Office, Pierre, S.D., Priscilla A. Wilfahrt, Dept. of Interior, Office of the Field Sol., Fort Snelling, Minn., for defendant U.S.

Terry L. Pechota, Rapid City, S.D., for Reynolds, Marshall, Brown, Hauf, Rosebud Sioux Tribe.

MEMORANDUM OPINION

BATTEY, District Judge.

PROCEDURAL HISTORY

Plaintiff Rolland Richard Mousseaux, a/k/a Rolland Richard Driver (Mousseaux) filed a complaint on February 6, 1991, against the named defendants. His complaint indicates numerous statutory and civil rights violations stemming from two criminal prosecutions, one by the federal government and one by the Rosebud Sioux Tribe, both of which were based on an assault committed by Mousseaux in Indian country.

Mousseaux is proceeding pro se and in forma pauperis in this civil action. On February 12, 1991, before any responsive pleading to his complaint was filed, Mousseaux amended his complaint to allege two new statutory violations involving defendants Woodrow Starr and Steve Gurue, and to add Dennis Holmes as a new defendant. The amended complaint alleged that Holmes was involved in the two new statutory violations along with defendants Starr and Guerue.

On May 13, 1991, defendant United States of America (the government) moved to dismiss Mousseaux's claims. The basis for the government's motion was Mousseaux's failure to file an administrative claim with the appropriate government agency as required by the Federal Tort Claims Act, 28 U.S.C. § 2675.

The government characterizes Mousseaux's claim as one sounding in tort rather than a civil rights claim because Mousseaux failed to allege intentional discrimination by the various defendants. Failure to file an administrative claim is a jurisdictional defect under the Federal Tort Claims Act. The government does not specifically invoke a statutory basis for its motion, but the argument for dismissal based on the fact that Mousseaux has failed to allege intentional discrimination must be viewed as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The motion for dismissal based on failure to file an administrative claim in accordance with the Federal Tort Claims Act must be viewed as a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1).

Defendants Janelle Reynolds, Sherman Marshall, Bob Brown, and Virgil Hauf also moved to dismiss Mousseaux's claims against them on the ground that, among other things, Mousseaux failed to state a claim and that this Court lacks subject matter jurisdiction. Mousseaux responded twice to this motion. The three defendants who have not answered or filed a motion to dismiss are federal employees. Their claims should be considered to be covered by the government's pleadings. Thus, before the Court are motions to dismiss covering all claims asserted by Mousseaux against all defendants.

FACTS

On February 25, 1990, Bureau of Indian Affairs officers arrested Mousseaux on tribal charges of assault. On April 20, 1990, a federal indictment was entered against Mousseaux, charging him with assault with a dangerous weapon in violation of federal law. On April 24, 1990, the tribal charges were dropped and Mousseaux was released. Mousseaux was held without bail in tribal jail from the date of his arrest in February until the tribal charges were dropped in April. On May 2, 1990, Mousseaux was arrested on the federal charges. A jury trial was held on October 30, 31, and November 1, 1990, in which Mousseaux was convicted of the charges against him.

DISCUSSION

A. Standard to be Applied

1. Construction of pro se Plaintiff's Pleadings

Because Mousseaux represents himself in these proceedings, his pleadings must be "liberally construed and can be dismissed only if the face of the complaint shows an insuperable bar to relief." Holt v. Caspari, 961 F.2d 1370, 1372 (8th Cir. 1992) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). In addition, facts alleged by a pro se plaintiff in a response to a motion are to be viewed as de facto amendments to the plaintiff's complaint. Ketchum v. City of W. Memphis, 974 F.2d 81, 82 (8th Cir.1992).

2. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The subject matter jurisdiction of federal district courts is wholly a creature of statute. Continental Cablevision, Inc. v. United States Postal Serv., 945 F.2d 1434, 1435 (8th Cir.1991). When a motion is made to dismiss a complaint for lack of subject matter jurisdiction, the issue to be addressed is whether the court is empowered to hear the class of cases in which plaintiff's claim arises. Id. at 435-38. Whether or not plaintiff has stated a cause of action is a question going to the merits of the case and can only be addressed after a court assumes jurisdiction over the case. Id. at 1438. Therefore, if a court has jurisdiction over the class of claims into which plaintiff's claim falls, the court should assume jurisdiction unless the claim is "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).

3. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

When a motion pursuant to Rule 12(b)(6) is made, the court must view all well-pleaded factual allegations in the complaint as true and cannot dismiss the complaint unless it appears beyond a doubt that no set of facts can be proved which would entitle the plaintiff to relief. Ketchum, 974 F.2d at 83; Dicken v. Ashcroft, 972 F.2d 231 (8th Cir.1992); and Concerned Citizens v. N.R.C., 970 F.2d 421, 425 (8th Cir.1992). All reasonable inferences arising from the facts pleaded must also be construed most favorably to the plaintiff. Concerned Citizens, 970 F.2d at 425. A district court's ruling on a Rule 12(b)(6) motion is reviewed on a de novo basis on appeal. Ketchum, 974 F.2d at 83; Dicken, 972 F.2d at 233; and Concerned Citizens, 970 F.2d at 425.

Taking all of the above into consideration, two issues are raised by the defendants' motions:

1. Whether, liberally construing the factual allegations made by Mousseaux in his complaint and pleadings responsive to the government motion, no set of facts could be proved which would entitle Mousseaux to relief; and

2. Whether, liberally construing Mousseaux's complaint and pleadings in response to the government motion, his claims are so "wholly insubstantial and frivolous" that this Court can be said to lack subject matter jurisdiction over them.

Because of the number and diversity of the claims raised by Mousseaux, each claim will be dealt with separately.

B. Claims Under the Indian Civil Rights Act

Mousseaux alleges that the actions of the Rosebud Sioux Tribe and the individual defendants who are employees of the tribe violate provisions of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303. This claim must be dismissed.

The only remedy available in federal district court under the Indian Civil Rights Act is a writ of habeas corpus. Runs After v. United States, 766 F.2d 347, 353 (8th Cir.1985) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 64, 98 S.Ct. 1670, 1680, 56 L.Ed.2d 106 (1978)). Actions seeking remedies other than a writ of habeas corpus for civil rights deprivations at the hands of tribal government must be pursued in tribal forums. Runs After, 766 F.2d at 353 (quoting Goodface v. Grassrope, 708 F.2d 335, 338 n. 4 (8th Cir.1983)). It is apparent that Mousseaux's claims based on violation of the Indian Civil Rights Act are not within this Court's jurisdiction because Mousseaux seeks money damages, not a writ of habeas corpus. These claims are accordingly dismissed.

C. Claims Under 25 U.S.C. § 1311

Mousseaux alleges that the actions of the defendants violates 25 U.S.C. § 1311. This statute provides that the Secretary of the Interior must propose model criminal procedure codes for Indian tribal courts before July 1, 1968, to assure that prosecution by tribal courts of Indian offenses on Indian reservations comply with constitutional rights and privileges guaranteed under the federal constitution. Mousseaux does not explain how the actions of the defendants violate this section and no amount of liberal construction of Mousseaux's pleadings reveals a theory. Accordingly, any claims based on this statute are also dismissed.

D. Claims Under 18 U.S.C. §§ 241, 242, 1001, and 1018

Mousseaux alleges that the actions of the various defendants violate the above statutes. Each statute is found in the section of the United States Code describing substantive offenses which constitute federal crimes. Section 241 makes it a crime to conspire to violate constitutional or statutory rights. Section 242 makes it a crime to willfully deprive persons of constitutional or statutory rights while acting under color of law. Section 1001 makes it a crime to falsify or conceal a material fact or to use a fraudulent or false statement while within the jurisdiction of any department or agency of the United States. Finally, section 1018 makes it a crime for a public officer to deliver a certificate...