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Greene v. Skibine

July 23, 2009

CHARLES ANTHONY GREENE, PLAINTIFF,
v.
GEORGE SKIBINE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF COMPLAINT

BACKGROUND

On June 11, 2009, Plaintiff Charles Anthony Greene ("Plaintiff") filed a complaint entitled, "Judicial Review of a Final Administrative Decision and Decision Reversal from the United States District Court." Plaintiff names the following Defendants: "Assistant Secretary-Indian Affairs (BIA) George Skibine, or Acting Assistant Secretary Office of Public Affairs; The Acting Director of the United States Department of Interior, Bureau of Indian Affairs, Eastern Oklahoma Regional Office; Paul Yates, Acting Field Representative, Department of Interior, Bureau of Indian Affairs, Talihina Agency; and Brenda Hampton, Director of Tribal Membership - Choctaw Nation of Oklahoma (collectively "Defendants").

Plaintiff, is seeking judicial review of a final administrative decision dated April 23, 2009, from the United States Department of the Interior, Bureau of Indian Affairs ("BIA"), based on the Administrative Procedures Act ("APA"). See, Ex. A-1; 5 U.S.C. §§ 701- 706. Plaintiff is an African American male who alleges that he is a true descendant of a legal tribal member of the Choctaw Nation of Oklahoma. He alleges that he was denied membership in the tribe because he could not connect back to a direct ancestor enrolled by blood. Plaintiff has attempted to become a recognized tribe member since at least 1999. He asserts that the failure to be recognized as a tribe member is discriminatory and is a violation 42 U.S.C. § 1981. Complaint at pg. 5. He also alleges a violation of 42 U.S.C § 1983, specifically, a violation of due process under the Fifth Amendment. Id.

Plaintiff requests that the Court reverse the April 2009 decision issued by the Bureau of Indian Affairs and order the BIA to recognize him as a decedent of the Five Civilized Tribes. Complaint at pg. 32. Similarly, Plaintiff requests that he be recognized by the federal government as an Indian Freeman descent and that a Certificate of Degree of Indian Blood ("CDIB") card be issued to that effect. Id. Finally, Plaintiff also requests reimbursement of $350.00 if this action is successful. Complaint at pg. 34.

Plaintiff's Prior Dismissed Actions

Plaintiff has filed four similar actions in this Court. In 2000, Plaintiff filed an action entitled Charles Anthony Greene v. Choctaw Nation of Oklahoma, Case No. CV F 00-6141 REC SMS. The Court dismissed the action on the grounds that it failed to state a claim upon which relief could be granted.

In 2001, Plaintiff filed an action entitled Charles Anthony Greene v. Assistant Secretary-Indian Affairs (BIA) Neal McCaleb, et al., Case No. CV F 01-6325 AWI LJO. In that case, Plaintiff appeared to allege he was denied membership to the Choctaw Nation of Oklahoma although he claimed membership through a tribal ancestor. On August 23, 2002, the Court dismissed the case without prejudice on the grounds that Plaintiff failed to state a claim and cure pleading deficiencies.

In 2002, Plaintiff filed another action entitled Charles Anthony Greene v. Assistant Secretary-Indian Affairs (BIA) Neal McCaleb, et al., Case No. CV F02-6157 REC LJO. Again, Plaintiff alleged that he was denied membership in the Choctaw Nation of Oklahoma and requested injunctive relief. On October 1, 2002, the Court dismissed the case on the grounds that Plaintiff failed to state a claim, failed to cure pleading deficiencies, and that there was no waiver of sovereign immunity. On June 15, 2003, the Ninth Circuit Court of Appeals affirmed the district court's decision.

In 2005, Plaintiff filed a fourth action entitled Charles Anthony Greene v. McCaleb et al., Case No. 1:05-cv-555 OWW DLB. In this action, Plaintiff contended that he was denied membership in the Choctaw Nation of Oklahoma because he could not connect to direct ancestor by blood. He disagreed with this interpretation and alleged that defendants deprived him of his right to be registered with the Bureau of Indian Affairs and conspired against him to deprive him of his civil rights. This complaint was dismissed for failure to state a claim upon which relief can be granted and that there was no waiver of sovereign immunity.

This action is Plaintiff's fifth attempt to pursue his claims.

DISCUSSION

A. Screening Standard

"A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6). Such dismissal may be made without notice where the claimant cannot possibly win relief." Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. ...


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