The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1981. Currently before the court is defendant's motion to dismiss plaintiff's third amended complaint (TAC) (Doc. 60). Plaintiff filed a response in opposition (Doc. 71) and defendants filed a reply (Doc. 72). The hearing on the motion was taken off calendar pursuant Local Rule 78-230(h).
Plaintiff originally filed this action against Gold Country Casino ("Casino"), the Berry Creek Rancheria of Tyme Maidu Indians ("Tribe"), Mattie Mayhew and DOES. The defendants filed a motion to dismiss that complaint based on sovereign immunity which was granted and judgment was entered. On appeal, however, the Ninth Circuit Court of Appeal affirmed the judgment dismissing the claims against the Tribe and the Casino, but remanded the case to this court regarding the possibility of claims against the individual defendant Mayhew and the DOE defendants under 42 U.S.C. §§1981 and 1985. Plaintiff was provided an opportunity to file a second amended complaint, which was filed in July 2007. The defendants filed a motion to dismiss the second amended complaint which was granted in part and denied in part. (Docs. 46, 50).
Defendants' motion to dismiss the second amended complaint was granted as to defendants Edwards, Armus, Chase and Mix for lack of subject matter jurisdiction (immunity), as to plaintiff's claims under 42 U.S.C. § 1985, and for failure to properly serve all defendants except Mattie Mayhew. The motion was denied as to plaintiff's claims under 42 U.S.C. § 1981. Defendants Edwards, Armus, Chase and Mix were dismissed with prejudice as protected under tribal immunity. Defendants Boulton, Martin, Sandusky, Ricky Mayhew, Harter, White, Hernandez and Hedrick were dismissed without prejudice for failure to state a claim. Plaintiff was provided an opportunity to file a third amended complaint to attempt to link defendants Boulton, Martin, Sandusky, Ricky Mayhew, Harter, White, Hernandez and Hedrick to his claim under 42 U.S.C. § 1981. Plaintiff was also ordered to effect proper service of process on the defendants.
Pursuant to court order, plaintiff filed his third amended compliant on June 17, 2008. In his third amended complaint, plaintiff names Mattie Mayhew, Ricky Mayhew, Kirby Brown, Eleanor Boulton, Gus Martin, Brian Sandusky, Erin Harter, Ed White, Terrilyn Steele, Mike Hedrick, Art Hatley, Tasha Hernandez and Does 1 though 50 as defendants. The facts alleged in the third amended complaint are similar to those raised in the second amended complaint.
The court previously summarized plaintiff's allegations as follows:
Plaintiff claims that he was an employee of the Gold Country Casino in 2003. While he was so employed, he took into his home three children, who were defendant Tasha Hernandez's children and defendants Mattie and Ricky Mayhew's grandchildren. Plaintiff, who later petitioned the Tribe for tribal membership of these children, was told by the Indian Children Welfare Act (ICWA) representative, Ben Jiminez, that he would be reimbursed for his expenses regarding the children and was warned "not to go to the white man's court." However, despite this warning, plaintiff filed guardianship proceedings in the California state court in September 2003.
Following the filing of guardianship proceedings, plaintiff claims that the defendants in this case filed false allegations against him and conspired together with the intent to terminate plaintiff's employment in retaliation for availing himself of the state court system and because he is white. Specifically he claims that defendant Mattie Mayhew made the false allegations and conspired with Ricky Mayhew on a plan to file the false charges with the Tribe. The other defendants in this case, including gaming commission members, casino security officers, human resources personnel, the general manager and director of security of the casino, and tribal council members all conspired together to terminate plaintiff's employment with the Casino under these false charges. He states he was informed that casino security had conducted an investigation and found the allegations to be true, resulting in his termination. He claims casino personnel did not follow their own policies and procedures and they used their positions to further the conspiracy. He also claims the tribal council members knew about the actions taken, conspired with the others in terminating plaintiff's employment, and overstepped their authority by not acting appropriately.
Plaintiff's third amended complaint has eliminated reference to the tribal council members as this court directed. In addition to the above, plaintiff adds some details to his alleged facts, but none that drastically alter the above summary. Of some importance, plaintiff has attempted to link some of the defendants to his alleged wrongdoings. Specifically, the third amended complaint includes the allegations that defendant Ricky Mayhew was involved in the investigation and he acted along with defendant Brown in stating that an investigation had been conducted. He alleges that defendants Boulton, Martin and Sandusky were informed of the plan to file the false charges by defendants Ricky Mayhew and Brown, and that defendants Boulton, Martin and Sandusky were personally involved in the investigation and decision to fire plaintiff. He also alleges that defendant Hedrick was involved with the alleged investigation because, as defendant Hatley's superior, he had to know of and approve the investigation. As to defendant White, plaintiff alleges that he was denied an opportunity to meet with defendant White, even after he was promised a meeting with him. He also claims defendant White sent him a letter which stated that although the charges against him could not be confirmed or denied, plaintiff was still terminated. As to defendant Harter, plaintiff states she lied to him by stating he would be allowed to meet with defendant White and herself, but no additional meetings were held. Finally, in an attempt to link defendant Hernandez, plaintiff states that she conspired with defendant Steele to take the children away from plaintiff.
Finally, plaintiff's third amended complaint cites to a recent United States Supreme Court case, CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (2008), as support for his position that he can maintain a retaliation claim under § 1981. Plaintiff also attempts to set the ground work to establish the Tribe and Casino waived sovereign immunity, and requests the court allow him to amend his complaint again and bring the Tribe and Casino back into this action.
Defendants bring this motion to dismiss pursuant to the Federal Rules of Civil Procedure, Rule 12(b)(1), (5) and (6) on the grounds that this court lacks subject matter jurisdiction, plaintiff's third amended complaint fails to state a claim on which relief may be granted, and there has been insufficient service of process.
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct 2197 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) can be either a facial or factual attack. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In a facial attack on subject matter jurisdiction, the court is confined to the allegations in the complaint. In a factual attack, the court is permitted to look beyond the complaint and may consider extrinsic evidence. See id. (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1036 (9th Cir. 2004)), Savage v. Glendale Union High Sch., 434 F.3d 1036, 1040 n.2 (9th Cir. 2003). Jurisdiction must generally be determined prior to a federal court considering a case on its merits. See United States v. Larson, 302 F.3d 1016, 1019 (9th Cir. 2002) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)).
In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007). Allegations of specific facts are not necessary so long as the statement of facts gives the defendant fair notice of what the claim is and the grounds upon which it rests. See id., Erickson, 127 S.Ct. at 2200.
To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
A. SUBJECT MATTER JURISDICTION
Defendants claim this court lacks subject matter jurisdiction over the claims against defendants Bolton, Martin, Sandusky, Harter, White, Hedrick, Steele and Hatley because these defendants are officials of the Tribe or its Casino, and they are therefore covered by tribal sovereign immunity.
The issue of tribal sovereign immunity was discussed at length in relation to the defendants' prior motion to dismiss. This court concluded that in a facial attack on subject matter jurisdiction, which was before the court at that time, there had not been sufficient information to make a determination as to whether any of these moving defendants were tribal officials acting in their official capacity and within the scope of their authority. Before the court now are declarations from each of these defendants explaining their position with the Tribe or its Casino. As these declarations are extrinsic evidence, the motion before the court is a factual attack on this court's subject matter jurisdiction. To the extent these declarations explain the defendants' position within the Tribe and/or Casino, the court will consider the declarations.
Defendant Boulton states during the time relevant to this action, she was a member of the Tribal Gaming Commission. She was elected by the Tribe's general membership to the position of Tribal Gaming Commissioner. As a Tribal Gaming Commissioner, she answered directly to the Tribe's general membership. The Tribal Gaming Commission is responsible for ensuring compliance with the law and integrity of the gaming at the Casino. The Gaming Commission established a Surveillance Department, which reports directly to the Commission. Defendant Boulton's duties included meeting with the Surveillance Department and its employees to ensure the integrity of the gaming operation.
Defendant Martin states at the time relevant to this action he was a member of the Tribal Gaming Commission. He was elected to the position of Tribal Gaming Commissioner by the Tribe's general membership. As a Tribal Gaming Commissioner, he answered directly to the Tribe's general membership. The Tribal Gaming Commission is responsible for ensuring compliance with the law and integrity of the gaming at the Casino. The Gaming Commission established a Surveillance Department, which reports direction to the Commission. Defendant Martin's duties included meeting with the Surveillance Department and its employees to ensure the integrity of the gaming operation.
Defendant Sandusky states at the time relevant to this action he was a member of the Tribal Gaming Commission. He was elected to the position of Tribal Gaming Commissioner by the Tribe's general membership. As a Tribal Gaming Commissioner, he answered directly to the Tribe's general membership. The Tribal Gaming Commission is responsible for ensuring compliance with the law and integrity of the gaming at the Casino. The Gaming Commission established a Surveillance Department, which reports direction to the Commission. Defendant Sandusky's duties included meeting with the Surveillance Department and its employees to ensure the integrity of the gaming operation.
Defendant White states at the time relevant to this case, he served as the General Manager of the Casino. He was hired by the Tribal Council, and reported directly to the Tribal Council on a regular basis. As General Manager, defendant White had overall management responsibility for the Casino. The Casino is regulated by the Tribal Gaming Commission to ensure compliance with the law and integrity of gaming.
Defendant Harter states she was the Director of Human Resources for the Casino during the relevant time period to this case. As the Director, she had overall responsibility for personnel policy and decisions at the Casino, and she reported directly to the Casino General Manager. She also reported directly to the Tribe and/or its Gaming Commission when she was consulted regarding employment policies and procedures. As the ...