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Allen v. Mayhew

March 27, 2009

MARK S. ALLEN, PLAINTIFF,
v.
MATTIE MAYHEW, ET AL., DEFENDANTS.



ORDER

Plaintiff, proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1981. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.

On February 20, 2009, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Both parties have filed objections to the findings and recommendations.*fn1

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. Accordingly, the court adopts the findings and recommendations in full. Nonetheless, in light of the extensive objections filed by the parties, the court summarizes the issues here.

I. BACKGROUND

Pending before the court is defendants' motion to dismiss plaintiff's Third Amended Complaint ("TAC"). The TAC alleges plaintiff was an employee of the Gold Country Casino, operated by the Berry Creek Rancheria of Tyme Maidu Indians ("Tribe"). While plaintiff 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 for these children, was told by the Indian Children Welfare Act representative, Ben Jiminez (not presently a party to this suit), that he would be reimbursed for his expenses regarding the children, and that he should not "go to the white man's court." Despite this warning, plaintiff filed guardianship proceedings in the California state court in September 2003.

Following the filing of guardianship proceedings, Mattie Mayhew and Ricky Mayhew allegedly "file[d] false charges against plaintiff" with the casino (plaintiff's employer), and motivated by the facts "that plaintiff took the incident to court and that he is white." TAC 4:12-14.

Once these charges were filed, numerous other defendants employed by the casino knew that the charges were false but nonetheless participated in a process that led to plaintiff being wrongly fired. This group of allegations pertains to defendants Boulton, Martin, Sandusky, White, Harter, Steele, Hedrick, Hatley and Brown.

The TAC names one final defendant, Hernandez, whom plaintiff alleges conspired with defendant Steele to take the children away from plaintiff. Plaintiff does not allege any specific acts on Hernandez's part; he merely alleges that Hernandez knew of, and must have participated in, the alleged conspiracy.

Plaintiff states that the TAC brings claims under "U.S. Code, Title 42; Section 1981(a) Equal Rights under The Law and Retaliation" and 18 U.S.C. §§ 1001(a)(1)-(3), (c)(1).

II. DISCUSSION

A. Tribal Immunity

The magistrate recommended dismissal of claims against Boulton, Martin, Sandusky, White, Harter, Steele, Hedrick, Hatley and Brown on the ground that the alleged conduct fell within these defendant's official capacity as employees of the casino, and that the defendants therefore enjoyed sovereign immunity. In an earlier appeal in this case, the Ninth Circuit held that the casino at issue enjoyed the tribe's sovereign immunity. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). In a subsequent and separate case, the Ninth Circuit held that when "a tribal corporation[] [acts] as an arm of the tribe [and it] enjoy[s] the same sovereign immunity granted to a tribe itself," this immunity extends to "tribal employees acting in their official capacity and within the scope of their authority." Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 725, 727 (9th Cir. 2008). Pursuant to Allen and Cook, not all tribal businesses and corporations will function as "arms of the tribe," and as such, not all employees of such businesses will be entitled to tribal immunity. In this case, however, the Ninth Circuit has specifically determined that the casino does exercise this function.

The magistrate then concluded that the above defendants' alleged acts occurred within the scope of their employment, whether that scope was defined by reference to the Restatement (Second) of Agency (used by the Ninth Circuit in determining scope of employment for federal RICO claims) or by reference to ...


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