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Allen v. Mayhew

February 16, 2010

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



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. This case proceeds on Plaintiff's third amended complaint,*fn1 but has been limited to the claims raised under 42 U.S.C. § 1981, against Mattie Mayhew and Ricky Mayhew, on the basis that they filed false charges against him with his employer in order to have him fired because he is white. (See Doc. 78). All other claims and defendants have been dismissed.

Pending before the court is Defendants' unopposed second motion to dismiss (Doc. 90), raising claims not previously addressed. A hearing on this motion was held October 29, 2009. Attorney Amit Kurlekar appeared telephonically for the defense. Plaintiff, proceeding in pro se, failed to appear.

I. BACKGROUND

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.

Plaintiff then filed his third amended compliant on June 17, 2008, naming 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. Defendants filed a motion to dismiss the third amended complaint which was granted in part and denied in part. The motion to dismiss was granted as to defendants Kirby Brown, Eleanor Boulton, Gus Martin, Brian Sandusky, Erin Harter, Ed White, Terrilyn Steele, Mike Hedrick, Art Hatley, who were dismissed from this action with prejudice as protected under tribal immunity. It was also granted as to defendant Tasha Hernandez for failure to state a claim. The motion was denied as to defendants Mattie Mayhew and Ricky Mayhew only.*fn2 All other defendants have been dismissed from this action.

As to the two remaining defendants, reading Plaintiff's complaint liberally, he alleges that while he was an employee of the Gold Country Casino in 2003, he took the defendant Mayhews' grandchildren into his home. He later petitioned the Tribe for tribal membership for these children, and was told he would be reimbursed for his expenses regarding the children but 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. As a result, he contends defendants Mattie and Ricky Mayhew conspired together to file false allegations against him, with the intent to have his employment with the Casino terminated in retaliation for availing himself of the state court system and because he is white. He was subsequently terminated from his employment, allegedly due to these false allegations.

II. MOTION TO DISMISS

Defendants bring this motion to dismiss pursuant to the Federal Rules of Civil Procedure, Rule 12(b)(6) on the grounds that plaintiff's third amended complaint fails to state a claim on which relief may be granted.

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, 93-94 (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 Hosp. Bldg. Co. v. Rex Hosp. 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). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, 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).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), 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." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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." Iqbal, 129 S.Ct. at 1949. "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." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, 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, ...


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