Cadet v. Snoqualmie Casino

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

ANNETTE CADET, CASE NO. C19-1953JLR Plaintiff, ORDER ON PLAINTIFF’S v. MOTION FOR LEAVE TO SNOQUALMIE CASINO, Defendant.

Before the court is pro se Plaintiff Annette Cadet’s “[a]mended [c]omplaint.” (Mot. (Dkt. # 19).) In accordance with its duty to liberally construe pro se filings, the court construes Ms. Cadet’s “amended complaint” as a motion for leave to amend her previous complaint and as a proposed amended complaint. See Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020). The motion is unopposed. (See generally Dkt.) The court has considered the motion, the record, and the applicable law. Being fully advised, the // court GRANTS Ms. Cadet’s motion for leave to amend.

On December 30, 2019, Ms. Cadet filed suit against the Snoqualmie Casino (“the Casino”) for events that occurred on or about May 3, 2018. (See generally Compl. (Dkt. # 7).) However, the court dismissed Ms. Cadet’s complaint without prejudice for lack of subject-matter jurisdiction because the Snoqualmie Indian Tribe’s (“the Tribe”) sovereign immunity extended to the Casino. (See generally 6/25/20 Order (Dkt. # 18).) Ms. Cadet now attempts to circumvent the Tribe’s sovereign immunity by suing “Brent Schneider[,]

Cynthia Redfearn Lee[, and] Lawrence Smith Clyde,” (collectively, “Employee Defendants”) whom Ms. Cadet describes as “Snoqualmie Casino [e]mployees” and “[t]echnical security staff.” (See Mot. at 1.)1 On or about May 3, 2018, Ms. Cadet paid the Casino ten dollars for round-trip transportation from Seattle to the Casino. (Id. at 3.) Ms. Cadet missed the last bus home

that night and, with permission from the Casino’s “security officer,” waited for the first bus in the morning. (See id. at 1.) However, one of the Casino’s patrons complained about Ms. Cadet’s presence. (See id.) Ms. Cadet avers that the Casino’s security personnel began “harassing” and “yelling” at her, “making fun of [her] accent,” and insulting her with racial slurs. (See id.) The Casino’s security personnel called the

police, who Ms. Cadet alleges “assaulted[ed] and almost kill[ed] me.” (See id. at 3.) //

1 Unless otherwise noted, all references to page numbers are to those provided by the court’s electronic filing system (“ECF”). Although the court dismissed Ms. Cadet’s previous complaint (see generally 6/25/20 Order; Compl.), Ms. Cadet seeks leave to amend so that she may address the

insufficiencies in her complaint, including those related to subject-matter jurisdiction (see generally Compl.; Mot.). Ms. Cadet argues that “[t]ribal casino employees do not have [s]overeign [i]mmunity” under United States Supreme Court and Ninth Circuit precedent. (See Mot. at 3.) The court now considers Ms. Cadet’s motion and her proposed amended complaint.

A. Leave to Amend The district court liberally construes pro se filings. See Wilk, 956 F.3d at 1147 (noting that a district court properly “acknowledged its obligation to construe liberally” a pro se plaintiff’s filings); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). “A

district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)). Under Federal Rule of Civil Procedure 15, the court should “freely give” leave to

amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Five factors are used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the party has previously amended its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).

Here, the bad faith, undue delay, prejudice, and previous amendment factors all weigh in favor of granting Ms. Cadet’s motion for leave to amend. In this case, there is no indication Ms. Cadet is acting in bad faith; instead, Ms. Cadet alleges she suffered injuries at the Casino and is seeking damages to compensate for her losses. Ms. Cadet also responded to the court’s previous order dismissing her complaint within a month of the filing, which the court finds acceptable given that Ms. Cadet states that she does not

have a computer to research case law or electronically submit and receive filings and that many libraries are presently inaccessible due to the COVID-19 pandemic. (See Resp. to MTD (Dkt. # 14) at 5.) In regard to prejudice to the opposing party, the Casino does not suffer prejudice because Ms. Cadet proposes removing the Casino from this case.2 The court also notes that Ms. Cadet has not previously amended her complaint. (See

generally Dkt.) The futility factor also weighs in Ms. Cadet’s favor. Although the court previously dismissed Ms. Cadet’s complaint for lack of subject-matter jurisdiction, Ms. Cadet’s request for leave to amend is not futile. Amendments may be futile on

2 Employee Defendants also do not suffer prejudice because, under 28 U.S.C. § 1915(e)(2)(B), the court acts as a barrier between pro se plaintiffs proceeding in forma pauperis and defendants, meaning Employee Defendants need not appear unless the court determines that Ms. Cadet’s amended complaint sufficiently states a claim upon which relief can be granted. Moreover, Ms. Cadet could simply file a new case against Employee Defendants, meaning they will suffer no prejudice if the court allows Ms. Cadet to name them as defendants in her amended complaint. jurisdictional grounds. See Manning v. Swedish Med. Ctr., No. C15-0949JLR, 2016 WL 6216364, at *9 (W.D. Wash. Sept. 30, 2016) (“Amendment of a complaint is futile if the

court would not have subject matter jurisdiction over the new claims in the proposed amendment.”) (citations omitted). Amendments may also be futile on the merits where “no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” See Sweaney v. Ada Cty., Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997) (citations omitted). Although there are still deficiencies in Ms. Cadet’s proposed amended complaint, see infra § III.B, the amended allegations

do not meet this futility standard on either jurisdictional or factual grounds. As the court has already noted, the Casino shares in the Tribe’s sovereign immunity as an “arm of the tribe.” See Cook v. AVI Casino Enters., 548 F.3d 718, 725 (9th Cir. 2008) (“[T]he settled law of our circuit is that tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.”); (see also

6/25/20 Order at 10-11). Moreover, “[t]ribal sovereign immunity ‘extends to tribal officials when acting in their official capacity and within the scope of their authority.’” Cook, 548 F.3d at 726-27. However, the Ninth Circuit has distinguished Cook and held that tribal sovereign immunity generally does not extend to suits “brought against individual officers in their individual capacities.” See Maxwell v. Cty. of San Diego, 708

F.3d 1075, 1088 (9th Cir. 2013). In Maxwell, the Ninth Circuit employed a “remedy- focused analysis,” considering whether “individual capacity suits against . . . officers . . . will operate against the sovereign [tribe].” Id. “In Cook, the plaintiff had sued the individual defendants in their official capacities in order to establish vicarious liability for the tribe.” Id. (citing Cook, 548 F.3d at 727). However, “[t]he general bar against official-capacity claims . . . does not mean that tribal officials are immunized from

individual-capacity suits arising out of actions they took in their official capacities.” Id. (quoting Native Am. Distrib. Co. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir. 2008). “‘Rather, it means that tribal officials are immunized from suits brought against them because of their official capacities—that is, because the powers they possess in those capacities enable them to grant the plaintiffs relief on behalf of the tribe.” Id. (quoting Native Am. Distrib. Co., 546 F.3d at 1296); see also Lewis v. Clarke,

--- U.S. ---, 137 S. Ct. 1285, 1292 (2017) (holding that tribal sovereign immunity did not extend to the driver of a tribe-owned limousine carrying patrons from a tribal casino in a suit alleging negligence); Pistor v. Garcia, 791 F.3d 1104, 1108 (9th Cir. 2015) (concluding that tribal defendants were not entitled to sovereign immunity “because they were sued in their individual rather than their official capacities” and any recovery would

come from the individual defendants and not the tribe’s treasury). In light of Maxwell, Ms. Cadet’s motion for leave to amend her complaint is not futile, as she may be able to amend the complaint to state individual actions against Employee Defendants. See Hall v. Mooretown Rancheria, No. 2:12-cv-1856 LKK GGH PS, 2013 WL 2486610, at *6 (E.D. Cal. June 10, 2013) (“It is possible, although doubtful

when viewing the present allegations, that plaintiff could amend the complaint to state individual actions.”). Thus, each of the factors in Allen weigh in favor of granting Ms. Cadet leave to amend. Accordingly, the court GRANTS Ms. Cadet’s motion for leave to amend her complaint. B. Ms. Cadet’s Proposed Amended Complaint Although the court finds that Ms. Cadet is entitled to leave to amend, the court

notes that Ms. Cadet’s proposed amended complaint is deficient and would be subject to dismissal under 28 U.S.C. § 1915. The court is obligated to dismiss any complaint filed by a pro se plaintiff proceeding in forma pauperis that “seeks monetary relief against a defendant who is immune from such relief” or “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii). Ms. Cadet’s proposed amended complaint currently falls into both categories.

The court previously dismissed Ms. Cadet’s case for lack of subject-matter jurisdiction (see 6/25/20 Order at 14), and Ms. Cadet’s proposed amended complaint fares no better (see generally Mot.). Although Ms. Cadet names Employee Defendants and not the Casino as defendants in this matter, Ms. Cadet has failed to allege any actions Employee Defendants undertook in their individual capacities that caused her harm. (See

generally id.) Instead, it appears that Ms. Cadet names Employee Defendants in an attempt to circumvent the Tribe’s sovereign immunity and hold the Tribe vicariously liable for the actions of the Casino’s security personnel. (See id. at 3 (arguing that the “Snoqualmie Casino abuse [sic] vulnerable players” and that “[t]ribal casino employees do not have sovereign [i]mmunity”); see also Resp. to MTD at 4 (“I believe that they

should lose their immunity right when they fail to respect the people [sic] rights . . . . They deserve some kind of punishment for not being more careful about people [sic] safety [a]t 2 [a.m.]”)); Cook, 548 F.3d at 727. Indeed, Ms. Cadet seems to name Employee Defendants specifically “because of their official capacities” so that she may seek relief from the Tribe. (See Mot. at 3; see also Resp. to MTD at 4 (“I should be able to suit [sic] because of the treatments I got after they picked me up[.]”)); Maxwell, 708

F.3d at 1088 (citations omitted). With the exception of naming Employee Defendants rather than the Casino, Ms. Cadet’s proposed amended complaint is nearly identical in its allegations to her previous complaint that the court dismissed for lack of subject-matter jurisdiction. (See Mot. at 1; see generally 6/25/10 Order.) To comply with 28 U.S.C. § 1915(e)(2)(B)(iii), Ms. Cadet must state a claim for relief against Employee Defendants in their individual capacities and not merely name them in a complaint alleging

wrongdoing on part of the Casino. Ms. Cadet’s proposed amended complaint also fails to state a plausible claim upon which relief can be granted. When considering whether a complaint has failed to state a claim upon which relief can be granted, the court construes the complaint “in the light most favorable” to the plaintiff. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416

F.3d 940, 946 (9th Cir. 2005). The court accepts “all well-pleaded factual allegations as true and . . . draw[s] all reasonable inferences therefrom in favor of the plaintiff.” Wyler Summit P’ship v. Turner Broad. Sys., 135 F.3d 658, 663 (9th Cir. 1998). Dismissal “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1990). Although a complaint need not contain detailed factual allegations, a plaintiff’s obligation to provide the grounds of her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citations omitted). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Aside from naming Employee Defendants as the Casino’s “employees” and “[t]echnical security staff,” Ms. Cadet fails to allege that Employee Defendants engaged in any wrongdoing. (See generally Mot.) Ms. Cadet refers generally to “the Casino,” a “security officer,” a “supervisor,” and the Casino “staff” throughout her proposed amended complaint but does attempt to connect Employee Defendants to these terms or explain how Employee Defendants were specifically involved in the incident aside from

mentioning once that “Brent security office [sic] told [the police] that I refused transportation 100% lie.” (See id. at 2.) Moreover, Ms. Cadet’s complaint fails to establish a cognizable legal theory demonstrating her entitlement to relief. See Balistreri, 901 F.2d at 699. Ms. Cadet alleges that the Casino’s “security staff conspire[d] with sheriff officers . . . to brutally injured [sic] me. They breached their duty of care to me . .

. through [n]egligence and their negligence resulted in my phisical [sic], emotinal [sic] and mental pain.” (Mot. at 1.) Ms. Cadet further alleges that “[t]hey chose to abuse me because of their Indian tribe [s]overeign and [i]munity [sic] of suit.” (Id. at 3.) Such language, though serious, is conclusory, fails to establish the elements of any plausible claim to relief, and is not entitled to be assumed true. See Iqbal, 556 U.S. 662 at 1941

(noting that the plaintiff’s allegation that defendants “agreed to subject him to harsh conditions as a matter of policy” was “conclusory and not entitled to be assumed true”). Thus, Ms. Cadet’s proposed amended complaint fails to state a plausible claim for relief and would be subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(iii). In sum, although Ms. Cadet is entitled to leave to amend because the court cannot rule out the possibility that amendment could cure the deficiencies in Ms. Cadet’s

original complaint, see Eldridge v. Block, 832 F.2d 1132, 1135-37 (9th Cir. 1987), Ms. Cadet’s current proposed amended complaint would be subject to dismissal under 28 U.S.C. § 1915. Thus, if Ms. Cadet seeks to file an amended complaint in response to the court’s order granting her leave to amend, the court cautions Ms. Cadet to remain mindful of the guidance set forth in this order.

Based on the foregoing analysis, the court GRANTS Ms. Cadet’s motion for leave to amend (Dkt. # 19). Accordingly, the court DIRECTS the Clerk to re-open this case. Ms. Cadet shall amend her complaint to correct the deficiencies identified in this order, if at all, within twenty-eight (28) days of the filed date of this order. If Ms. Cadet fails to amend the complaint to state a viable action against Employee Defendants in their

individual capacities, the court will dismiss Ms. Cadet’s entire action with prejudice. Dated this 7th day of August, 2020. A United States District Judge