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Alegre v. United states

United States District Court, S.D. California

July 23, 2019

CINDY ALEGRE, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al. Defendants.

          ORDER: (1) GRANTING INDIVIDUAL DEFENDANTS' MOTION TO DISMISS, (DOC. NO. 66); AND (2) GRANTING PLAINTIFFS LEAVE TO AMEND.

          HON. ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUGDE.

         Before the Court is Defendants Amy Dutschke and Javin Moore's (“Individual Defendants”) motion to dismiss the claims that seek personal liability against them in the Third Amended Complaint (“TAC”). (Doc. No. 66.) Those claims include: (1) Violation of Civil Rights - Due Process under the Fifth Amendment, (2) Violation of Civil Rights - Equal Protection under the Fourteenth Amendment; and (3) Conspiracy to Interfere with Civil Rights under Bivens. The Court finds: (1) the case does not warrant a new Bivens remedy, (2) a claim against any federal employees or government under the Fourteenth Amendment is inapplicable; and (3) plaintiffs failed to plead facts showing a conspiracy existed. The Court also finds that, nevertheless, qualified immunity applies to Dutschke and Moore for claims brought against them in their personal capacities. For these reasons, the Court GRANTS the motion to dismiss and DISMISSES Dutschke and Moore in their individual capacities from litigation. (Doc. No. 66.)

         I. BACKGROUND

         The following facts are taken from the TAC and construed as true for the limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013).

         The facts of this case have been thoroughly detailed in previous documents, including this Court's previous order granting a motion to dismiss. (See Doc. No. 43.) Although the complaint has been amended several times, the core facts remain the same. Plaintiffs are the descendants of Jose Juan Martinez, Guadalupe Martinez, and their daughter Modesta Martinez Contreras (collectively, “Martinez Ancestors”). (Doc. No. 62 ¶ 28.) Plaintiffs are split into Groups A and B. (Id. ¶¶ 13-18.) Group A Plaintiffs include Plaintiffs who are: residents of San Diego County, “direct lineal descendants of Jose Juan Martinez and Guadalupe Martinez, ” “direct lineal descendants of Modesta Contreras, ” enrolled in the Band, but are not federally recognized as Band members by the BIA. (Id. ¶ 15.) Group B Plaintiffs include Plaintiff who are also San Diego County residents, are enrolled in the Bank, and are federally recognized by the BIA as Band members. (Id. ¶ 18.) Group A's claims are the subject of the instant motion to dismiss.

         Plaintiffs assert each of the Martinez Ancestors was a full blood San Pasqual Indian. (Id.) In 2005, Plaintiffs submitted their applications to the Enrollment Committee for enrollment with the San Pasqual Band of Mission Indians in California (“Band”). (Id. ¶ 29.) The Enrollment Committee unanimously voted that Plaintiffs had established they were qualified for enrollment. (Id.) This determination “was predicated on a finding that Plaintiffs' ancestor Modesta's blood degree should be increased from ¾ to 4/4[.]” (Id. ¶ 30.) The Band's General Council then unanimously agreed with the Enrollment Committee on April 10, 2005. (Id. ¶ 30.) Later, on September 12, 2005, the Band's Business Committee concurred with both the General Council and the Enrollment Committee and sent its findings to former Superintendent of the Southern California Agency, James Fletcher. (Id. ¶ 31.)

         Three months later, on December 8, 2005, Fletcher sent Individual Defendant Amy Dutschke a letter stating that “the preponderance of the evidence does not sufficiently demonstrate that Modesta [] is full blood[, ]” (id. ¶ 33), to which Dutschke concurred, (id. ¶ 35). However, Plaintiffs were never given written notice of either Fletcher or Dutschke's findings. (Id. ¶ 38.) Plaintiffs subsequently submitted FOIA requests to determine the status of their applications, to which they received responses on October 1, 2014, and May 27, 2015. (Id. ¶ 44). It was at this time Plaintiffs learned of Dutschke's negative determination of Plaintiffs' enrollment requests. (Id.)

         II. LEGAL STANDARDS

         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation and internal quotation marks omitted). However, a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).

         Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         III. DISCUSSION

         Plaintiffs' Fifth, Seventh, and Eleventh claims for relief in their TAC bring actions against Individual Defendants in their individual capacities. The Fifth and Eleventh claims are brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), while the Seventh claim is brought under the Fourteenth Amendment of the United States Constitution. Plaintiff's Eleventh claim is also brought under 42 U.S.C. § 1981. The Court discusses each in turn below.

         A. Plaintiffs' Fifth Claim for Relief Does Not Warrant a Bivens Remedy

         Group A Plaintiffs first bring this action under Bivens, alleging Individual Defendants violated constitutional mandates by failing to adjudicate Plaintiffs' applications to be federally recognized members of the San Pasqual Band of Mission Indians. (Doc. No. 62 ¶ 130.) Individual Defendants move to dismiss Plaintiffs' Bivens claims based on: (1) an insufficient basis for implying a new Bivens action, (2) substantive defects in the Bivens claims, and (3) the qualified immunity doctrine. (Doc. No. 66-1 at 6.) Specifically, Individual Defendants argue a claim under Bivens is unwarranted for tribal enrollment application violations. (Id. at 13.) Individual Defendants further contend that in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the U.S. Supreme Court cautioned against expanding constitutional claims beyond the three scenarios in Bivens, Davis, and Carlson. (Id.) Therefore, because this case differs from the three previously-decided Supreme Court Bivens cases, Individual Defendants state a Bivens remedy should not be granted. (Id.) However, Plaintiffs argue the Supreme Court has already expanded Bivens claims to violations of the Fifth Amendment's Due Process Clause, under which they seek relief. (Doc. No. 79 at 15.) Additionally, Plaintiffs contend Congress has not provided an alternative remedy and has not explicitly declared that Plaintiffs may not recover damages under Fifth Amendment constitutional claims. (Id. at 17.)

         In Bivens, the court established an implied private right of action for tortious deprivation of constitutional rights against federal officials in their personal capacity. Bivens, 403 U.S. at 389. However, “[a] Bivens remedy will generally not be available if a comprehensive statutory scheme already exists for a defendant to seek redress of the alleged constitutional violation.” Loumiet v. U.S., 255 F.Supp.3d 75, 84 (D.D.C. 2017); see also, Ziglar, 137 S.Ct. at 1858 (finding if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action).

         As Individual Defendants correctly point out, the Supreme Court has granted Bivens remedies in only three cases: Bivens, Davis, and Carlson. (Doc. No. 66-1 at 13.) First, the Court in Bivens provided a damages remedy under the Fourth Amendment to persons who had been subjected by federal officers to unreasonable searches and seizures. Bivens, 403 U.S. at 396. The Court then held under Davis v. Passman that the Fifth Amendment Due Process Clause gave Plaintiff a damages remedy for gender discrimination. 442 U.S. 228, 248 (1979). Most recently, the Court in Carlson v. Green held that the Eighth Amendment's Cruel and Unusual Punishments Clause gave decedent's estate a damages remedy when federal jailers failed to treat decedent's asthma, resulting in his death. 446 U.S. 14, 25 (1980). Expanding the Bivens remedy beyond these three scenarios has recently been a “disfavored” judicial activity. Iqbal, 556 U.S. at 675. The Supreme Court has “consistently refused to extend Bivens to any new context or new category of defendants.” Corr. Services Corp., 534 U.S. at 68. When deciding whether to provide a damages remedy, Congress is in a better position than the courts to consider if “the public interest would be served” by imposing a “new substantive legal liability.” Schweiker v. Chilicky, 487 U.S. 412, 426-27 (1988) (quoting Bush v. Lucas, 462 U.S. 367, 390 (1983)).

         1. Plaintiffs' Sufficiently Plead a Fifth Amendment Procedural Due Process Violation

         Plaintiffs' factual allegations here raise issues of procedural due process under the Fifth Amendment-specifically, that Defendants failed to give Plaintiffs written notice of their determination that the Martinez Ancestors were not full blood San Pasqual Indian, resulting in denial of tribal enrollment. (Doc. No. 62 ¶ 133.) Plaintiffs contend the Martinez Ancestors are indeed full blood San Pasqual Indian, giving them a potential property interest in the benefits of tribal enrollment. (Id. ¶ 28.) However, even if the Court found there was in fact a Fifth Amendment Due Process violation, Plaintiffs' claims still fail because they cannot state a Bivens claim and the Individual Defendants have qualified immunity.

         2. Plaintiffs' Case Presents a “New ...


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