Section 1983

Section 1983 Suit against City of Logan, OH Survives Motion to Dismiss — Alleged Racial Harassment by City Office of Native-Owned Business

Matthew L.M. Fletcher2 Comments

Here are the materials in Great Elk Dancer for his Elk Nation v. Miller (S.D. Ohio):

17 MJ R&R

25 DCT order

An excerpt:

Plaintiff, who is proceeding pro se and in forma pauperis, brings this civil rights action under 43 U.S.C. § 1983. In a nutshell, Plaintiff asserts Defendants arbitrarily and capriciously interfered with his business operations and targeted him for harassment because he is a Native American, thereby violating his federal constitutional rights. On August 19, 2013, the Magistrate Judge issued a Second Initial Screening Report and Recommendation (“R & R”) in which he recommended that the Court allow this lawsuit to proceed against Defendants Mayor J. Martin Irvine, Fire Chief Brian Robertson, Officer Josh Mowery, and City Services Director Steve Shaw (collectively, “City Defendants”). R & R 11, ECF No. 17. He also recommended that the Court dismiss the remaining Defendants. Id. In addition, the Magistrate Judge recommended that the Court deny Defendants’ motions to strike Plaintiffs first amended complaint. Id. at 11 (denying ECF Nos. 9 & 13). The City Defendants filed timely objections to the R & R. ECF No. 19. The Court now considers those objections.

Sixth Circuit Rejects Constitutional Challenge to Michigan Gaming Control Act

Matthew L.M. Fletcher

Here are (some of) the materials in Arabo v. Greektown Casino:

Arabo Brief

MGM Brief

Michigan Gaming Control Board Brief

CA6 Unpublished opinion

Section 1983 Complaint against Red Cliff Housing Authority Dismissed

Matthew L.M. Fletcher1 Comment

Here are the materials in DePerry v. Deragon (W.D. Wis.):

DCT Dismissing Complaint

DePerry Complaint

Defendants Motion to Dismiss

DePerry Opposition

Defendants Reply

An excerpt:

Asserting a claim pursuant to 42 U.S.C. § 1985(3), Raymond DePerry alleges in his amended complaint defendants fired him as the Executive Director of the Red Cliff Chippewa Housing Authority (“the Authority”) as a result of their conspiracy to interfere with the civil rights of the Authority’s tenants. Defendants, the Authority’s seven-member Board of Commissioners, responded with the instant motion to dismiss that complaint for failure to state a legally-cognizable claim. See Fed.R.Civ.P. 12(b)(6). The court finds that DePerry’s amended complaint contains no allegation or inference of a conspiracy to deprive anyone of civil rights, nor of any class-based animus held by defendants, and will therefore grant defendants’ motion to dismiss.

Federal Court Allows Leave to Amend Civil Rights Complaint against Salt River Police re: Medicinal Marijuana Confiscation

Matthew L.M. Fletcher

Here are the materials so far in Phillips v. Salt River Police Dep’t (D. Ariz.):

DCT Order

Phillips Complaint

Federal Court Dismisses Treaty “Bad Men” Claim in Police Killing on Uintah and Ouray Indian Reservation

Matthew L.M. Fletcher

Here are the treaty claim materials in Jones v. Norton (D. Utah):

DCT Order Dismissing Treaty Claim

Motion for Judgment on Pleadings

Plaintiffs’ Opposition

Reply

Federal Court Dismisses Section 1983 Claim against Lower Sioux Tribal Police in Arrest of Tribal Member

Matthew L.M. Fletcher

Here are the materials in Hester v. Redwood County (D. Minn.):

Order Dismissing Action 8 6 2012

Redwood County Motion to Dismiss

Hester Opposition to Redwood County Motion

Redwood County Reply

Lower Sioux Motion for Summary J

Hester Opposition to Lower Sioux Motion

Lower Sioux Reply

 

Tenth Circuit Affirms Dismissal of Section 1983 Claim against Navajo Nation and Navajo Courts

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Chavez v. Navajo Nation Tribal Courts.

An excerpt:

The district court dismissed the case for lack of jurisdiction. The court held that Mr. Chavez’s lawsuit against the Tribal officials could not be maintained in federal court under §1983 because all of his challenges to the Tribal officials’ actions relied on Tribal law. See Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006) (“A § 1983 action is unavailable for persons alleging deprivation of constitutional rights under color of tribal law, as opposed to state law.” (internal quotation marks omitted)); see also Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981) (observing that acting under color of state law is “a jurisdictional requisite for a § 1983 action”). Turning to the Tribe, the court held–after noting that Mr. Chavez failed to even address the Navajo Nation’s sovereignty–that Congress had not authorized suit “against tribal entities pursuant to 42 U.S.C. § 1983.” R. at 631. See Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1152 (10th Cir. 2011) (“[A]n Indian tribe is not subject to suit in a federal or state court unless the tribe’s sovereign immunity has been either abrogated by Congress or waived by the tribe.”); E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001) (observing that tribal sovereign immunity “is a matter of subject matter jurisdiction”).
Mr. Chavez appeals.

Briefs and lower court materials are here.

Prisoner Case against Riverton Chief of Police Dismissed (Wind River Jurisdiction Issue)

Matthew L.M. Fletcher

Here are the materials in Dewey v. Riverton Chief of Police (D. Wyo.):

DCT Order Dismissing Dewey Complaint

Wyo. Motion to Dismiss

 

 

ICWA-Related Federal Civil Rights Claim Dismissed

Matthew L.M. Fletcher1 Comment

Here is the opinion in Belinda K. v. County of Alameda (N.D. Cal.):

Belinda K v County of Alameda.

Here is an excerpt:

Plaintiff’s Count Sixteen is a § 1983 claim based on her allegation that her ICWA right to competent counsel in the Superior Court dependency proceedings was violated. Plaintiff alleges that the defendants “conspired and agreed that appointed attorneys would not as a custom and practice produce any written pleadings for the defense of their clients, nor would they be paid for their time to consult with their appointed clients.” Compl. ¶ 212. Plaintiff alleges that appointed counsel appeared in court but provided no “substantive actual effort, no investigation of the facts or the law nor vigorous defense or responsive pleadings” on behalf of appointed clients. Compl. ¶ 214. Plaintiff is asserting a direct claim for violation of ICWA (on the basis of ineffective assistance of counsel and on a number of other bases as well) in the related action, J.H. v. Baldovinos, pending before this Court. In Count Sixteen’s § 1983 claim, Plaintiff seeks to hold defendants liable for money damages and attorney’s fees based on this alleged violation. These remedies are not available to Plaintiff in her direct ICWA claim.

Tenth Circuit Rejects Section 1983 Claim by Pro Se Prisoner against Prairie Band Tribal Police

Matthew L.M. Fletcher

Here is the unpublished opinion in Johnson v. Pottawatomie Tribal Police Dept. See footnote 1 for an explanation of the caption.

Lower court opinion here.