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Liska v. Macarro

September 17, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


[Doc. No. 70]

Presently before the Court is Respondents' Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, and Butch Murphy's motion to dismiss Petitioner Joseph Liska's ("Petitioner") Amended Petition.*fn1 (Doc. No. 70.) Petitioner filed an opposition, and Respondents filed a reply. Oral argument was heard on August 30, 2010. For the reasons stated herein, the Court GRANTS the motion to dismiss.


On October 14, 2008, Petitioner, proceeding pro se, filed the original petition, captioned "Complaint [for] Writ of Habeas Corpus." (Doc. No. 1.) Petitioner alleged he is a descendant of the Pechanga Band of Mission Indians (the "Tribe"), but not an enrolled member of the Tribe. The Tribe currently has in place a moratorium on enrolling new members. The petition named as respondents Tribe members Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, Donna Baron, and Butch Murphy. Petitioner alleged Respondents illegally banished Petitioner from the Tribe without a hearing or due process, in violation of the American Indian Civil Rights Act of 1968 ("ICRA"), 25 U.S.C. §§ 1301, 1302, and 1303. According to Petitioner, he is entitled to be recognized as a member of the Tribe, share in the Tribe's trust proceeds, and enter the reservation to visit his father's grave.

On June 25, 2009, Respondent Donna Baron ("Baron") filed a motion to dismiss the petition. At that time, Baron was the only party whom Petitioner served with the petition. On August 5, 2009, the Court granted Baron's motion to dismiss for lack of personal jurisdiction, and alternatively for failure to state a claim under Rule 12(b)(6).

On June 18, 2010, Petitioner filed an Amended Petition against the same respondents as in the original petition, with the exception of Baron.*fn2 The Amended Petition alleges the same conduct as the original petition, but also describes an incident on May 19, 2005 where men came to Petitioner's home, pounded on his door, and put banishment flyers on his cars. Petitioner alleged this was "reckless conduct" and he felt like he was being warned to cease protesting against the Tribe's enrollment policies. The Amended Petition sets forth three claims: (1) violation of ICRA, 25 U.S.C. §§ 1301, 1302, 1303; (2) "conspiracy against rights" in violation of 18 U.S.C. § 241, and (3) violation of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. Petitioner seeks punitive damages, compensatory damages, fourteen years of back pay or trust proceeds, as well as orders vacating his alleged criminal and civil convictions by the Tribe and vacating his banishment from the Tribe. Petitioner also filed a request for the U.S. Attorneys Office to oversee this case. (Doc. No. 82.)

On July 19, 2010, Respondents filed this motion to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). Respondents argue the Amended Petition should be dismissed for the same reasons the Court previously dismissed the original petition in the August 5, 2009 Order.


I. Motion to Dismiss for Lack of Personal Jurisdiction

Respondents move the Court to dismiss the ICRA claims as to Respondent John Magee for lack of personal jurisdiction under Rule 12(b)(2). Respondents assert that because Respondent John Magee is indisputably no longer a member of the Tribal Council, he is not a proper party. The Court agrees.

Petitioner brings his ICRA claims relating to his alleged banishment via a petition for writ of habeas corpus under ICRA, 25 U.S.C. § 1303.*fn3 The ICRA guarantees certain rights that are similar but not identical to those in the Bill of Rights and the Fourteenth Amendment. 25 U.S.C. §§ 1301-1303; Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 881-82 (2d Cir.1996), cert. denied, 519 U.S. 1041 (1996). A petition for writ of habeas corpus under § 1303 is the only avenue for relief for a violation of the ICRA. Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir. 2004). Section 1303 provides, "[t]he privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe." 25 U.S.C. § 1303.

As the Court previously noted in its August 5, 2009 Order dismissing the original petition, when a habeas corpus petition fails to name a proper respondent, federal courts lack personal jurisdiction.*fn4 See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). The proper respondent in a federal habeas corpus petition is the petitioner's immediate custodian. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). However, "[a]s the 'custody' requirement has expanded to encompass more than actual physical custody, so too has the concept of a custodian as a respondent in a habeas case." Poodry, 85 F.3d at 899. Therefore, even if a habeas corpus petitioner under § 1303 is not in actual physical custody he may still "'name as respondent someone (or some institution) who has both an interest in opposing the petition if it lacks merit, and the power to give the petitioner what he seeks if the petition has merit--namely, his unconditional freedom.'" Poodry, 85 F.3d at 899 (citation omitted); see also Armentero v. I.N.S., 340 F.3d 1058, 1064 (9th Cir. 2003)) (finding the petitioner had correctly named tribal council members as respondents in § 1303 matter because they were empowered to end the petitioner's restraint by overturning or ceasing to enforce the relevant banishment order).

Here, the Amended Petition names as respondents several enrolled members of the Tribe, who "all are General Members of the Council (Tribal Council) except John Magee." (Amended Petition ΒΆ 4.) Respondents submit, and Petitioner does not dispute, that only the Tribal Council has the authority to offer Petitioner the requested relief from the alleged "detention and restraint on his liberty." Because Respondent John Magee is not a member of the Tribal Council, he cannot ...

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