The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Plaintiff, proceeding in pro per, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court is defendant
Rolling Hills Casino, Eric Felix, and Jon Padas' motion to dismiss
(Doc. 15). A hearing on the motion was held on April 7, 2011, before
the undersigned in Redding, California. Defense counsel Michael Snoke
appeared for defendants Rolling Hills Casino, Art Felix,*fn1
and Jon Pata;*fn2 Plaintiff appeared in pro
Plaintiff alleges he was at Rolling Hills Casino for a raffle, when he got sick after drinking a Diet Coke. He claims he attempted to leave to seek medical assistance, but was detained by the defendant employees of the Casino. The Sheriff's Office was then called, and two deputies arrived. The officers then apparently arrested plaintiff, who threw up on one of the officers and was barely conscious. Plaintiff contends that during his arrest, the officers used excessive force against him, dragging him through the parking lot and throwing him against the car. The officers then took him to the emergency room for medical treatment, prior to jail.
Defendant Rolling Hills Casino, and its employees defendants Pata and Felix, bring this motion to dismiss, pursuant to the Federal Rules of Civil Procedure, Rule 12(b)(1), (6), on the grounds that this court lacks subject matter jurisdiction, and plaintiff's amended complaint fails to state a claim on which relief may be granted.
Defendants contend that pursuant to the terms and conditions of the Tribal-State Compact, which is attached to the moving papers, they have not waived sovereign immunity for tort claims and plaintiff's exclusive remedy is to file a claim under the Tort Claims Act, as set forth in the Compact. As sovereign immunity has not been waived, this action is barred.
Defendants offer both a facial and factual attack on plaintiff's complaint. Facially, defendants argue plaintiff's complaint contains sufficient factual allegations to determine that they are protected by sovereign immunity, given that plaintiff acknowledges the casino and employees, as well as the alleged incident, are located on an Indian Reservation. Factually, pursuant to the Compact and the limited waiver of immunity therein, the court lacks jurisdiction over this action regardless of whether the claims set forth are state or federal law claims.
In opposition, plaintiff states that this court has jurisdiction over the defendants as they are a business enterprise open to the general public. Plaintiff does not, however, address the sovereign immunity of the Tribe, the Casino, or the employee defendants. Plaintiff simply reiterates the facts of the events giving rise this action.
In reply, defendant argues plaintiff failed to address the deficiencies in his complaint, specifically the immunity issue.
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). "Although a pro se litigant ... may be entitled to great leeway when the ...