United States District Court, S.D. California
ORDER: (1) GRANTING INDIVIDUAL DEFENDANTS' MOTION
TO DISMISS, (DOC. NO. 66); AND (2) GRANTING PLAINTIFFS LEAVE
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUGDE.
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.)
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).
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.
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.)
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.
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).
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.
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.
Plaintiffs' Fifth Claim for Relief Does Not Warrant 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.)
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
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)).
Plaintiffs' Sufficiently Plead a Fifth Amendment
Procedural Due Process Violation
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.
Plaintiffs' Case Presents a “New ...