United States District Court, D. Montana, Billings Division
MICHAEL F. LAFORGE, Plaintiff,
JANICE GETS DOWN, NATASHA J. MORTON, LEROY NOT AFRAID, SHEILA WILKINSON NOT AFRAID, Defendants.
Morris United States District Court Judge.
Michael LaForge, proceeding pro se, filed his Complaint on
May 5, 2017, seeking relief against defendants for a divorce
decree entered by the Crow Tribal Court in and for the Crow
Indian Reservation. The divorce decree divides property
between LaForge and his ex-wife, Defendant Janice Gets Down.
Defendant Natasha Morton served as attorney for Gets Down in
the underlying divorce action.
filed a motion to dismiss for failure to state a claim (Doc.
11) and motion to dismiss for lack of prosecution (Doc. 16).
Leroy Not Afraid and Sheila Wilkinson Not Afraid
(collectively “Judicial Defendants”) serve as
Crow Tribal Court Judges. Judicial Defendants filed a motion
to dismiss for lack of subject matter jurisdiction and
failure to state a claim (Doc. 20).
States Magistrate Judge Timothy Cavan entered Findings and
Recommendations in this matter on December 28, 2017. (Doc.
30.) Judicial Defendants timely filed an objection on January
11, 2018. (Doc. 31.) The Court reviews de novo
Findings and Recommendations to which a party timely objects.
28 U.S.C. § 636(b)(1). The Court reviews for clear error
portions of Judge Cavan's Findings and Recommendations to
which a party did not specifically object. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981).
Claims Against Morton
Cavan determined that LaForge's Complaint does not
identify any particular civil or constitutional rights
violation. Judge Cavan further determined that LaForge's
Complaint fails to indicate how Morton violated LaForge's
civil rights. In order to state a claim for damages under 42
U.S.C. § 1983, a complaint must allege that (1) a person
acting under the color of state law committed the conduct
complained of, and (2) this conduct deprived a person of
rights, privileges, or immunities secured by the Constitution
or laws of the United States. Parratt v. Taylor, 451
U.S. 527, 535 (1981) (overruled on other grounds). Judge
Cavan correctly determined that Morton, serving as counsel
for a private party, never acted under the color of state or
federal law. (Doc. 30 at 10.) LaForge cannot assert a §
1983 claim against Morton.
Cavan determined that LaForge's Complaint fails to
identify how Morton violated any particular “Disability
Act.” The Ninth Circuit has foreclosed suits under
Title II of the American with Disabilities Act against
individual defendants in their individual capacities.
Bohnert v. Mitchell, 2010 WL 4269569, *5-6 (D. Ariz.
2010). Morton has no connection to Crow Tribal Court other
than being an attorney. Judge Cavan correctly determined that
LaForge has sued Morton in her individual capacity. (Doc. 30
at 11.) Morton does not remain subject to suit under the
American with Disabilities Act.
Cavan further determined that there exists no conceivable
private right of action that may arise from a treaty against
a private attorney in a tribal court divorce action.
Id. at 13. The Court agrees. LaForge's Complaint
sheds no light on the possible basis for the claim. Any claim
that LaForge intends to assert against Morton based on
“treaty rights” will be dismissed.
Claims Against Judicial Defendants
Cavan determined that judicial immunity and sovereign
immunity bar LaForge's allegations against Judicial
Defendants. Id. at 14. Tribal Court judges remain
absolutely immune from suit, in their individual capacities,
for acts performed in their judicial capacities under the
doctrine of judicial immunity. Ferguson v. U.S. Dist.
Court, 2009 WL 2423440, *1 (D. Mont. 2009). Judge Cavan
correctly determined that Judicial Defendants remain immune
from the instant lawsuit.
Cavan likewise determined that the Tribe's sovereign
immunity bars claims that LaForge brings against Judicial
Defendants in their official capacities. (Doc. 30 at 15.)
Indian tribes are not considered states, or part of the
federal government, or a subdivision of either. Nat'l
Labor Relations Bd. v. Pueblo of San Juan, 276 F.3d
1186, 1192 (10th Cir. 2002) (en banc). Indian tribes, tribal
entities, and persons acting on the Tribe's behalf in an
official capacity enjoy sovereign immunity against suit
unless Congress expressly authorizes the suit or the tribe
has waived sovereign immunity. Kiowa Tribe of Oklahoma v.
Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (tribe);
Allen v. Gold Country Casino, 464 F.3d 1044, 1046
(9th Cir. 2006) (tribal entity); Hardin v. White Mountain
Apache Tribe, 779 F.2d 476, 479-80 (9th Cir. 1985
(tribal officials). LaForge does not argue that the Crow
Tribe has waived sovereign immunity for his claims. Congress
has not expressly authorized such private rights of action
against the Crow Tribe. (Doc. 30 at 16.) The Crow Tribe's
sovereign immunity bars LaForge's claims against Judicial
Defendants in their official capacities.
Defendants object to Judge Cavan's recommendation that
the Judicial Defendants' motion to dismiss be granted
without prejudice. Judicial Defendants argue that they remain
absolutely immune from suit. (Doc. 31 at 2.) Judicial
Defendants argue that their motion to dismiss should be
granted with prejudice and without leave to amend.
Id. Judicial Defendants further argue that no set of
facts that LaForge “could plead would surmount Judicial
Defendants' judicial immunity and tribal sovereign
immunity” as they pertain to LaForge's claims.
Id. at 3. The Court agrees.
amendment of LaForge's Complaint would be futile
concerning Judicial Defendants. LaForge's claims against
Judicial Defendants arise from the underlying divorce action.
Judicial Defendants made decisions in that proceeding while
acting in their judicial capacities. Judicial Defendants
further enjoy tribal sovereign immunity. The Crow Tribe's
sovereign immunity covers its judicial branch, the Crow
Tribal Court, as well as the judges of that court acting in
their official capacity. See Cook v. AVI Casino Enters.,
Inc., 548 F.3d 718, 727 (9th Cir. 2008). Judicial
Defendants should be dismissed with prejudice.