1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATHEW-ALLEN MCCASTER, Case No. 1:25-cv-00550-KES-CDB
12 Plaintiff, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 13 v. 14 (Doc. 2) UNITED STATES OF AMERICA, et al., 15 ORDER DENYING PLAINTIFF’S MOTIONS Defendants. FOR EXPEDITED REVIEW AND 16 IMMEDIATE INJUNCTIVE RELIEF
17 (Docs. 4, 5) 18 FINDINGS AND RECOMMENDATIONS TO 19 DENY PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND 20 TO DISMISS PLAINTIFF’S COMPLAINT 21 WITH LEAVE TO AMEND CERTAIN CLAIMS 22 (Docs. 1, 3) 23 14-DAY OBJECTION PERIOD 24 25 Plaintiff Mathew-Allen McCaster (“Plaintiff”), proceeding pro se, initiated this action with 26 the filing of a complaint against Defendant United States of America (“Defendant”) and others not 27 specifically named in the caption on March 13, 2025, in the District Court of the District of Columbia. (Doc. 1). The action was transferred to this Court on May 9, 2025. (Docs. 6, 7). 1 I. Motion to Proceed In Forma Pauperis 2 Plaintiff has filed a motion to proceed in forma pauperis without prepaying fees or costs 3 pursuant to 28 U.S.C. § 1915. (Doc. 2). The Court finds Plaintiff has made the showing required 4 by § 1915, and the request to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a) 5 (authorizing the commencement of an action “without prepayment of fees or security” by a person 6 who is unable to pay such fees). 7 Pursuant to 28 U.S.C. § 1915, federal courts must screen IFP complaints and dismiss the 8 case if the action is “frivolous or malicious,” fails to state a claim on which relief may be granted,” 9 or seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B). See Lopez v. 10 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but 11 requires a district court to dismiss [a IFP] complaint that fails to state a claim.”). 12 II. Screening Requirement 13 A complaint must contain “a short and plain statement of the claim showing that the pleader 14 is entitled to relief…” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required but 15 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 16 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 555 (2007)). A complaint may be dismissed as a matter of law for failure to state a 18 claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a 19 cognizable legal theory. See Balisteri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 20 Pleadings by self-represented litigants are to be liberally construed. See Haines v. Kerner, 21 404 U.S. 519, 520-21 (1972). However, “the liberal pleading standard . . . applies only to a 22 plaintiff’s factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n .9 23 (1989). Furthermore, “a liberal interpretation of a civil rights complaint may not supply essential 24 elements of the claim that were not initially pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 25 1251, 1257 (9th Cir. 1997) (internal quotation marks & citation omitted), and courts “are not 26 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 27 (9th Cir. 2009) (internal quotation marks & citation omitted). 1 Although leave to amend a deficient complaint is to be extended liberally where justice 2 requires (Fed. R. Civ. P. 15(a)(2)), courts may deny a pro se plaintiff leave to amend where 3 amendment would be futile. Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) 4 (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990)); 5 see Lucas v. Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995) (holding that dismissal of a pro se 6 complaint without leave to amend is proper only if it is clear that the deficiencies cannot be cured 7 by amendment or after the pro se litigant is given an opportunity to amend). 8 III. Plaintiff’s Complaint1 9 On March 13, 2025, Plaintiff filed the instant complaint. (Doc. 1). According to Plaintiff’s 10 allegations, he (Matthew Allen McCaster) is the Chief of the Mathias El Tribe. (Doc. 1 at 1). 11 Plaintiff alleges that he and his tribe qualify for federal trust protections under the “Treaty of 12 Dancing Rabbit Creek” and various Acts. Id. at 1-2. He alleges “Defendants have violated” 13 obligations stemming from these federal authorities as: (1) “IHS2 [and] Kern County have 14 unlawfully denied Plaintiff’s access to federally mandated health services by falsely claiming the 15 Tribe is not ‘federally recognized,’ despite eligibility under 25 U.S.C. § 5304(e)”; (2) [Franchise 16 Tax Board (“FTB”)] unlawfully garnished Plaintiff’s Social Security Disability benefits in violation 17 of 42 U.S.C. § 407(a) (Social Security Act) and the Tribal General Welfare Exclusion Act 18 (TGWEA)”; (3) “Carrington Mortgage violated the Indian Non-Intercourse Act (25 U.S.C. § 177) 19 and [National Historic Preservation Act (“NHPA”)] Section 106 by listing Plaintiff’s tribal land for 20 auction on Zillow without proper federal consultation”; (4) “Defendants postmarked legal notices 21 before punitive actions but delayed delivery to Plaintiff, preventing him from responding before 22 financial harm occurred”; and (5) “[t]his pattern of fraudulent notices, wrongful tax collections, 23 24
25 1 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 26 the sua sponte screening requirement under 28 U.S.C. § 1915. 2 Although Plaintiff does not define “IHS” in his complaint, the Court presumes Plaintiff 27 seeks to name as a Defendant and refers to the Indian Health Service, an agency within the U.S. Department of Health and Human Services. See https://www.ihs.gov/aboutihs/ (last visited Aug. 1 and land dispossession constitutes an enterprise under the Racketeer Influenced and Corrupt 2 Organizations Act (RICO) (18 U.S.C. §§ 1961–1968).” Id. at 2.3 3 Plaintiff asserts five claims for relief. The first claim, violation of the Treaty of Dancing 4 Rabbit Creek, asserts the “United States has breached its trust responsibility by denying tribal 5 healthcare, allowing unlawful taxation, and failing to consult Plaintiff regarding land protections 6 under NHPA Section 106.” Id. The second claim, violation of the Indian Health Care Improvement 7 Act, 25 U.S.C. § 1601 et seq., is based on “IHS [and] Kern County’s refusal to provide Plaintiff 8 access to health services violates this Act, which mandates federal healthcare for qualifying tribes.” 9 Id. The third claim, violations of the Federal Trust Responsibility in citing Passamaquoddy v. 10 Morton, 528 F.2d 370 (1st Cir. 1975), asserts the United States Supreme Court “has affirmed that 11 trust obligations apply to all Indigenous tribes with legitimate historical claims, even if not 12 ‘federally recognized.’” Id. The fourth claim, violations of the Indian Non-Intercourse Act, 25 13 U.S.C. § 177, asserts that “Carrington Mortgage’s foreclosure activities against Plaintiff’s tribal 14 land violate the Act, which prohibits unauthorized land dispossession without federal approval.” 15 Id. The fifth and last claim, mail fraud and RICO violations under 18 U.S.C. §§ 1341 and 1962, 16 asserts that “Defendants engaged in a pattern of fraudulent activity by deliberately delaying critical 17 legal notices and seizing property and benefits under false pretenses.” Id. 18 Plaintiff seeks the Court issue a declaratory judgment that (1) the Mathias El Tribe qualifies 19 for federal trust responsibilities under 25 U.S.C. § 5404(e) and 42 U.S.C. § 407(a) and (2) 20 Defendants’ actions violate the Treat of Dancing Rabbit Creek and the Indian Non-Intercourse Act. 21 Id. at 3. Plaintiff further seeks the following injunctive relief: (1) prohibit Defendants “from further 22 garnishing Plaintiff’s tribal benefits, imposing state taxation, or foreclosing on tribal land”; (2) 23 compel “IHS [and] Kern County to reinstate Plaintiff’s health benefits to recognize the Mathias El 24 Tribe’s eligibility under federal law”; and (3) order “all federal and state agencies to comply with 25
26 3 The only Defendant named in the caption of Plaintiff’s complaint is the United States of America. However, because Plaintiff included “et al.” in the caption and appears to name other 27 Defendants associated with the claims addressed above (Doc. 1 at 2-3), the Court presumes for purposes of this screening order that Plaintiff intends to name as Defendants, in addition to the 1 the consultation requirements under NHPA Section 106.” Plaintiff also seeks restitution and 2 compensation through “[r]estoring all funds wrongfully garnished or seized by the [FTB,]” 3 “[h]alting the sale of Plaintiff’s tribal land and restoring its legal status under federal protection[,]” 4 and “[a]warding attorneys’ fees, court costs, and any further relief deemed just and proper.” Id. at 5 3. 6 IV. Discussion 7 A. Plaintiff’s Motions for Temporary Restraining Order and Expedited Review 8 Pending before the Court is Plaintiff’s motion for temporary restraining order, filed in the 9 District of Columbia simultaneous with Plaintiff’s complaint and transferred to this Court on May 10 9, 2025. (Docs. 3, 7). Also pending before the Court are Plaintiff’s motion for expedited review 11 and request for immediate injunctive relief and motion for immediate ruling on the motion for 12 temporary restraining, all transferred to this Court on May 9, 2025. (Docs. 4, 5, 7). 13 1. Governing Legal Standards for Temporary Restraining Orders 14 A temporary restraining order (TRO) is an extraordinary and temporary “fix” that the Court 15 may issue without notice to the adverse party if, in an affidavit or verified complaint, the movant 16 “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant 17 before the adverse party can be heard in opposition.” Espinoza v. Mroczek, No. 2:23-cv-00228- 18 TLN-JDP, 2023 WL 1869182, at *1 (E.D. Cal. Feb. 9, 2023) (citing Fed. R. Civ. P. 65(b)(1)(A)); 19 see E.D. Cal. Local Rule 231(a). The purpose of a temporary restraining order is to preserve the 20 status quo pending a fuller hearing. See Fed. R. Civ. P. 65. “A preliminary injunction [or TRO]4 21 is an extraordinary remedy never awarded as of right,” and may only be awarded upon a clear 22 showing that the plaintiff is entitled to relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 23 (2008) (citation omitted). “A plaintiff seeking a [TRO] must establish that he is likely to succeed 24 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 25 the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. 26 Because the first factor “is a threshold inquiry and is the most important factor,” a “court need not 27
4 “The legal standards applicable to TROs and preliminary injunctions are substantially 1 consider the other factors” if a movant fails to show a likelihood of success on the merits. Baird v. 2 Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (internal quotation marks and citations omitted); see, 3 e.g., Babaria, 87 F.4th at 980 (“We need not consider the remaining Winter factors because 4 plaintiffs fail to show a likelihood of success on the merits.”). 5 2. Analysis 6 Plaintiff requests the Court grant his ex parte emergency TRO to “immediately halt” a 7 foreclosure of Plaintiff’s tribal trust land scheduled on April 2, 2025. (Doc. 3 at 3). Plaintiff asserts 8 the request is made ex parte because Defendants “have engaged in a coordinated pattern of adverse 9 actions and legal maneuvering designed to deny Plaintiff his rights before he can respond.” Id. at 10 1. He asserts that a TRO is warranted because he “has strong claims under treaty law, federal trust 11 doctrine, and statutory protections that prohibit the foreclosure”; the “loss of Plaintiff’s tribal land 12 constitutes permanent harm that cannot be remedied by monetary damages alone”; the “harm to 13 Plaintiff far outweighs any inconveniences to Defendants, who are acting unlawfully under federal 14 law”; and “[u]pholding treaty obligations and preventing government-backed violations of 15 Indigenous rights serves the public interest.” Id. He requests the Court issue a preliminary 16 injunction prohibiting Defendants from foreclosing on or selling his land, imposing further 17 unauthorized taxes, garnishments, or financial penalties against him, and engaging in further 18 violations of various federal statutes. Id. at 3. He further requests the Court order Defendants to 19 show cause why a permanent injunction should not be issued pending resolution of this case. Id. 20 Here, the undersigned finds Plaintiff fails to establish the requisite factors to succeed on his 21 request for a TRO. The undersigned notes that, as set forth below, Plaintiff is not likely to succeed 22 on the merits of his claims, in part because his claim against the federal government is barred by 23 the doctrine of sovereign immunity. His claims regarding IHS and County of Kern’s denial of his 24 access to health services based on tribal eligibility similarly fail as tribal eligibility determinations 25 are reserved to the U.S. Department of the Interior (“DOI”) and Plaintiff has not shown his tribe is 26 federally recognized. Plaintiff’s claims regarding FTB’s unlawful garnishment of his Social 27 Security Benefits are not properly before the Court because a state agency’s garnishment is not a 1 violated federal law by listing his tribal land for auction fails as he does not show his tribe is an 2 Indian tribe nor his property is tribal land under the Indian Non-Intercourse Act. Lastly, Plaintiff’s 3 RICO claim based the predicate act of mail fraud fails as government entities cannot be named as 4 RICO defendants, the claim is deficient under Federal Rules of Civil Procedure 8 and 9, and the 5 complaint otherwise fails to state a claim. Because the complaint fails to state any cognizable 6 claims, Plaintiff therefore fails to establish that he is likely to succeed on the merits of his claims. 7 Winter, 555 U.S. at 20. 8 Aside from lacking a likelihood of prevailing on the merits, Plaintiff fails to establish that 9 he is likely to suffer immediate and irreparable harm in the absence of preliminary injunctive relief. 10 Plaintiff’s contention—that if “foreclosure proceeds on April 2, 2025, Plaintiff will … [b]e further 11 displaced” and “[l]ose access to federally protected resources” (Doc. 3 at 1, 2)—fails to show he is 12 likely to suffer immediate and irreparable harm as the preliminary injunctive relief he seeks in 13 halting the past-dated foreclosure proceedings is effectively mooted as of the date of this order. See 14 Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985) (“A moot action is one where the issues 15 are no longer live or the parties lack a legally cognizable interest in the outcome.”) (citing Lee v. 16 Schmidt-Wenzel and Harter, 766 F.2d 1387, 1389 (9th Cir.1985)); e.g., Duncan v. California 17 Healthcare Receivership Corp., Case No. 1:20-cv-01288-AWI-SWO (PC), 2021 WL 5760533, at 18 *1 (E.D. Cal. Dec. 3, 2021) (denying as moot a plaintiff’s motions for a TRO), adopted in full, 2021 19 WL 5999451, at *1 (E.D. Cal. Dec. 20, 2021); accord, Coleman v. California Dep’t of Corrections 20 and Rehabilitation, Case No. CV 06–2606–JFW (PJW), 2009 WL 10680999, at *1 (C.D. Cal. Jan. 21 28, 2009) (“A [TRO] is available to an applicant for a preliminary injunction when the applicant 22 may suffer imminent irreparable injury due to a defendant's conduct before the Court can hear the 23 application for a preliminary injunction.”) (emphasis added). 24 Notwithstanding the mooted request for relief, Plaintiff’s motion fails to identify or assert 25 any authority from which the Court may halt or otherwise interfere in foreclosure proceedings of 26 purported tribal trust land, and no clear showing is alleged that he faces a continuing threat of harm 27 following the date of the purported foreclosure proceedings from which the Court may properly 1 immediate and irreparable injury based on allegations that he is subject to a foreclosure proceeding 2 that presumably has now past—and had passed more than one month before the action was 3 transferred by the District of Columbia to this Court—Plaintiff’s TRO fails on this factor. Mazurek 4 v. Armstrong, 529 U.S. 968, 972 (1997) (the likely harm must be supported by a “clear showing.”). 5 Accordingly, because Plaintiff failed to establish the threshold factors that he is likely to 6 succeed on the merits of his claim or otherwise that he is likely to face immediate and irreparable 7 harm absent injunctive relief, the undersigned recommends that Plaintiff’s motion for emergency 8 temporary restraining order (Doc. 3) be denied. 9 3. Motions for Expedited Review and Immediate Ruling on the TRO 10 In his motions for expedited review and immediate ruling on the TRO (Docs. 4, 5)—which 11 were transferred to this Court more than one month after their filing (see Doc. 7) —Plaintiff requests 12 the Court to grant “an expedited hearing and issue a ruling before April 2, 2025” (Doc. 4 at 2) and 13 to enter a “prompt response … to prevent irreparable harm.” (Doc. 5). 14 For the same reasons the undersigned recommends denial of the TRO, the Court will deny 15 Plaintiff’s motions for expedited review and immediate ruling (Docs. 4, 5). 16 B. Screening of Pro Se Complaint 17 Even liberally construing Plaintiff’s complaint, the undersigned finds the complaint 18 defective for failure to state a claim and must be dismissed without leave to amend. 19 1. Claim 1: Violation of Treaty of Dancing Rabbit Creek 20 The United States and its federal agencies are immune from suit absent a waiver providing 21 for their consent to be sued. FDIC v. Meyer, 510 U.S. 471, 475 (1994). “The terms of consent to 22 be sued may not be inferred, but must be unequivocally expressed.” United States v. White Mt. 23 Apache Tribe, 537 U.S. 465, 472 (2003). “The waiver of sovereign immunity is a prerequisite to 24 federal-court jurisdiction.” Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011). A waiver 25 of sovereign immunity is strictly construed in favor of the government, and a plaintiff bears the 26 burden to show that the government has waived its immunity as to the specific claim asserted. 27 Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986). Relevant here, “[i]n order to 1 explicit waiver of sovereign immunity permitting such a suit.” Wright v. United States, Case No. 2 C21-5017 RSL, 2021 WL 965494, at *2 (W.D. Wash. Feb. 26, 2021) (citing W. Shoshone Nat'l 3 Council v. United States, 408 F. Supp. 2d. 1040, 1051-52 (D. Nev. 2005)). 4 Plaintiff’s claim for violation of the Treaty of Dancing Rabbit Creek fails to state a claim. 5 The complaint does not cite to any explicit waiver of the federal government’s sovereign immunity 6 based on the Treaty nor does it appear the Treaty provides for such an explicit waiver to permit 7 Plaintiff’s suit. See Wright, 2021 WL 965494, at *2 (“The 1830 Treaty with the Choctaw Nation, 8 to which plaintiff cites, does not provide an explicit waiver of sovereign immunity permitting 9 plaintiff's suit.”) (citing 7 Stat. 33). Nor does Plaintiff provide any authority in support of a 10 violation of the Treaty predicated on a violation of NHPA Section 106 as he purports. See id. at *3 11 (“[P]laintiff does not cite to any other treaty or statute creating such a private right of action.”). 12 Indeed, the Ninth Circuit has found that the “NHPA offers no basis to infer a waiver of sovereign 13 immunity.” See San Carlos Apache Tribe v. U.S., 417 F.3d 1091, 1096 (9th Cir. 2005); cf., e.g., 14 Presbyterian Church (U.S.A.) v. United States, 870 F2d 518, 524 (9th Cir. 1989) (“§ 702 of the 15 Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (1982), waives sovereign immunity[.]”). 16 Because Plaintiff has not alleged an explicit waiver of sovereign immunity, and sovereign 17 immunity bars his claim, the undersigned recommends dismissal of this claim without leave to 18 amend. 19 2. Claim 2: Violation of the Indian Health Care Improvement Act 20 “In 1976, Congress passed the Indian Health Care Improvement Act, which established the 21 Indian Health Service and recognized a ‘major national goal of the United States is to provide the 22 quantity and quality of health services which will permit the health status of Indians to be raised to 23 the highest possible level.’” In re Conditions at Lake Cnty. Jail, 638 F. Supp. 3d 1164, 1169 (D. 24 Mont. 2022) (quoting Pub. L. 94-437, 90 Stat. 1400) (codified as amended at 25 U.S.C. §§ 1601, 25 1661). “[F]ederally-recognized … [tribal] members are eligible to receive healthcare from the 26 [Indian Health Service].” Id. (citing Rosebud Sioux Tribe v. United States, 9 F.4th 1018, 1021 (8th 27 Cir. 2021)). 1 As this Court previously has advised Plaintiff, Congress historically recognized Indian 2 tribes by treaty. See Mathias El Tribe5 v. Attorney General, Case No. 1:24-cv-00090-KES-CDB, 3 E.D. Cal. (Doc. 6 at 4) (citing Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57 4 (2d Cir. 1994)). In 1871, this practice ended, and tribal recognition occurred through executive 5 orders and legislation. Roberto Iraola, The Administrative Tribal Recognition Process and the 6 Courts, 38 Akron L. Rev. 867, 871 (2005). In 1978, pursuant to broad authority delegated by 7 Congress,6 the United States DOI promulgated regulations establishing a formal recognition 8 process. 25 C.F.R. § 83.1-2 et seq.; see generally Kahawaiolaa v. Norton, 386 F.3d 1271, 1273- 9 74 (9th Cir. 2004). Thus, the DOI is responsible for determining which tribes have met the 10 requirements to be acknowledged as a tribe with a government-to-government relationship with the 11 United States. Id. at 1274. 12 Here, Plaintiff’s claims regarding IHS and County of Kern’s denial of his access to health 13 services based on tribal eligibility despite his conclusory allegations—that he “and the Tribe are 14 entitled to healthcare as part of the federal trust responsibility” and his Tribe qualifies for federal 15 program eligibility (Doc. 1 at 2)—fails as tribal eligibility determinations are reserved to the U.S. 16 DOI and Plaintiff has not shown his tribe is federally recognized such that he is entitled to the relief 17 he seeks. Moreover, an exhibit attached to Plaintiff’s complaint reveals that “the Mathias El Tribe 18 is not listed among the 574 federally recognized tribes eligible for services from the Bureau of 19 Indian Affairs (BIA) as of January 2024.” (Doc. 1-2 at 7) (Tribal TANF Program Appeal Decision 20 Letter dated December 30, 2024). Because Plaintiff has not shown his purported tribe is federally 21 recognized, he may not raise a challenge based on access under the Indian Health Care 22 Improvement Act. Thus, the undersigned recommends dismissal of this claim without leave to 23 amend. 24
25 5 Although the plaintiff in this action was “Mathias El Tribe,” the complaint and other filings, such as the application to proceed in forma pauperis, were signed by Plaintiff here, 26 Mathew-Allen McCaster. 6 See Miami Nation of Indians of Ind., Inc. v. U.S. Dep't of the Interior, 255 F.3d 342, 345 27 (7th Cir. 2001), cert. denied, 534 U.S. 1129 (2002) (“Congress has delegated to the executive branch the power of recognition of Indian tribes without setting forth any criteria to guide the 1 3. Claim 3: Unlawful Garnishment and Federal Trust Responsibility Violations 2 Plaintiff claims that the Franchise Tax Board (“FTB”) unlawfully garnished his Social 3 Security Disability benefits in violation of the Social Security Act and the Tribal General Welfare 4 Exclusion Act. 5 Under the Tax Injunction Act, the Court lacks subject matter jurisdiction over his illegal 6 garnishment claim. “The Tax Injunction Act (‘Act’) provides that ‘district courts shall not enjoin, 7 suspend or restrain the assessment, levy or collection of any tax under State law where a plain, 8 speedy, and efficient remedy may be had in the courts of such State.’” Poole v. California 9 Franchise Tax Board, No. C 05-01892 SI, 2005 WL 8188065, at *1 (N.D. Cal. Aug. 15, 2005) 10 (quoting 28 U.S.C. § 1341). “By its plain language, the Act deprives federal district courts of 11 subject matter jurisdiction over actions for injunctive relief from state taxation schemes.” Id. 12 (quoting Marvin P. Poer & Co. v. Counties of Alameda, 725 F.2d 1234, 1235 (9th Cir. 1984)). 13 “The United States Supreme Court has held that California's administrative and judicial scheme for 14 challenging tax assessment is a ‘plain, speedy and efficient’ remedy.” Id. (quoting California v. 15 Grace Brethren Church, 457 U.S. 393, 415 (1982). 16 Accordingly, the undersigned will recommend this claim be dismissed for lack of subject 17 matter jurisdiction and without leave to amend. 18 4. Claim 4: Violations of the Indian Non-Intercourse Act 19 To establish a prima facie case for violation of the Indian Non-Intercourse Act, “an Indian 20 tribe is required to allege that (1) it is an Indian tribe, (2) the land in question is tribal land, (3) the 21 sovereign has never consented to or approved the alienation of this tribal land, and (4) the trust 22 relationship between the United States and the tribe has not been terminated or abandoned.” 23 Robinson v. Salazar, 838 F. Supp. 2d 1006, 1027-28 (E.D. Cal. Jan. 18, 2012) (citing Delaware 24 Nation v. Pennsylvania, 446 F.3d 410 (3d Cir. 2006) as amended, (June 14, 2006) and cert. 25 denied, 549 U.S. 1071 (2006)). “Federal recognition is a prerequisite to an Indian tribe establishing 26 a ‘government-to-government relationship with the United States,’ and receiving a range of rights 27 and benefits.” See Chinook Indian Nation v. Burgum, No. 24-3629, 2025 WL 1692754, at *1 (9th 1 of all members of a tribe. It does not apply to allotted land, which is land once held in common, 2 but now owned by individual Indians, and held in trust by the federal government.” San Xavier 3 Development Authority v. Charles, 237 F.3d 1149, 1151 (9th Cir. 2001). 4 As discussed above, Plaintiff has not, and cannot, show that his alleged tribe is federally 5 recognized, and his complaint includes a document indicating his appeal for cash benefits was 6 denied as his tribe is not federally recognized by the BIA. See (Doc. 1-2 at 7). Though the Indian 7 Non-Intercourse Act “does not state or include language that a tribe must be a ‘recognized’ tribe, 8 Robinson, 838 F. Supp. 2d at 1028, the United States Supreme Court has interpreted “tribe” under 9 the Act as “a body of Indians of the same or a similar race, united in a community under one 10 leadership or government, and inhabiting a particular, though sometimes ill-defined, territory[,]” 11 United States v. Candelaria, 271 U.S. 432, 442 (1926). Plaintiff’s allegations in the complaint that 12 the Mathias El Tribe is “an Indigenous tribal nation with direct ties to the Choctaw Nation and other 13 Southeastern Woodland Tribes” (Doc. 1 at 1) do not sufficiently plead the elements of the definition 14 articulated in Candeleria as it is unclear whether Plaintiff’s tribe is body of Indians of the same or 15 a similar race, is united in a community under one leadership or government, and inhabits a 16 particular territory. 17 Additionally, Plaintiff fails to state a claim under the Act under the second element 18 regarding tribal land. His claims that Carrington Mortgage’s foreclosure activities violated the Act 19 by listing his tribal land for auction fails as a matter of law as the property at issue (see Doc. 1-2 at 20 3) “is not tribal land, held in common by the members of the tribe. Instead, it is … land owned by 21 [Plaintiff as an] individual landowner[.]” Charles, 237 F.3d at 1152 (affirming dismissal of Non- 22 Intercourse Act claim because the lot at issue was allotted land owned by individual landowners); 23 see (Doc. 1-2 at 3) (Trustor of the property: “[Plaintiff] Mathew McCaster, A Single Man, As Sole 24 Ownership”). 25 Because Plaintiff fails to show his tribe is an Indian tribe under the Act and that his property 26 at issue is tribal land under the Act, the claim fails as a matter of law. The undersigned recommends 27 dismissal of this claim without leave to amend as it does not appear from Plaintiff’s pleadings that 1 5. Claim 5: Mail Fraud and RICO Violations 2 To state a cognizable civil RICO claim, a plaintiff must allege facts showing: (1) conduct 3 (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as “predicate acts”) 4 (5) causing injury to plaintiff’s business or property. Living Designs, Inc. v. E.I. Dupont de 5 Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005). “Racketeering activity” or “predicate acts” 6 encompass a variety of criminal acts identified in 18 U.S.C. § 1961(1). Sanford v. MemberWorks, 7 Inc., 625 F.3d 550, 557 (9th Cir. 2010). To satisfy the “pattern” requirement, there must be at least 8 two acts of racketeering activity within a ten-year period. 18 U.S.C. § 1961(5). Under some 9 circumstances, two acts may not be sufficient. See Schreiber Distrib. Co. v. Serv-Well Furniture 10 Co., Inc., 806 F.2d 1393, 1399 (9th Cir. 1986) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 11 496 n.14 (1985) (noting “in common parlance two of anything do not generally form a ‘pattern.’”)). 12 Where predicate acts arise from alleged fraud, the acts “must be alleged with specificity in 13 compliance with Rule 9(b) of the Federal Rules of Civil Procedure.” Goodspeed v. Nichols, No. 14 2:12–cv–0807 JAM DAD PS, 2012 WL 5878245, at *5 (E.D. Cal. Nov. 20, 2012) (citing Schreiber 15 Distrib. Co., 806 F.2d at 1400-01). 16 Plaintiff’s claims that Defendants committed mail fraud and RICO by delaying mail fails 17 as a matter of law. Government entities, such as the United States of America, IHS, County of 18 Kern, and the FTB, cannot be named as defendants under RICO because “‘government entities are 19 incapable of forming [the] malicious intent’ necessary to support a RICO action.” Pedrina v. Chun, 20 97 F.3d 1296, 1300 (9th Cir. 1996) (quoting Lancaster Cmty. Hosp. v. Antelope Valley Hosp., 940 21 F.2d 397, 404 (9th Cir. 1991)) (dismissing RICO claims against city defendant based on predicate 22 acts of, inter alia, extortion); e.g., Mehr v. Cnty. of Orange, No. SACV 09-1158-AG (ANx), 2011 23 WL 13193323, at *8-9 (C.D. Cal. Jan. 5, 2011) (“the County of Orange is a government entity, and 24 as a matter of law is an improper RICO defendant”). 25 Even if governmental agencies and municipalities could properly be named RICO 26 defendant, Plaintiff’s conclusory allegations that “Defendants engaged in a pattern of fraudulent 27 activity by deliberately delaying critical legal notices and seizing property and benefits under false 1 § 1341) is a predicate act under § 1961(1). However, Plaintiff fails to plead any facts that 2 cognizably allege a pattern of racketeering activity. Schreiber Distrib. Co., 806 F.2d at 1399 3 (plaintiffs’ pleading of alleged acts that constituted a single fraud on a single victim failed to 4 sufficiently allege a pattern of racketeering activity). Notably, too, the complaint does not allege 5 any relevant dates or facts describing the circumstances of the alleged mail fraud or whether at 6 least two acts of the predicate act occurred within the requisite ten-year period. The allegations 7 thus fail to meet the heightened pleading requirements under Rule 9(b) to plead mail fraud “to 8 detail with particularity the time, place, and manner of each act of fraud, plus the role of each 9 defendant in the scheme.” See Lancaster Cmty. Hosp., 940 F.2d at 405 (“The Ninth Circuit has 10 repeatedly insisted that this rule be followed in RICO actions alleging the predicate act of mail 11 fraud.”). The claim is deficient such that it does not provide Defendants fair notice of the claims 12 and grounds supporting them. Iqbal, 556 U.S. at 678 (“[t]hreadbare recitals of the elements of a 13 cause of action, supported by mere conclusory statements, do not suffice.”). 14 Thus, the undersigned concludes that the complaint fails to state a cognizable RICO claim 15 predicated on mail fraud. To the extent Plaintiff may amend his complaint to state a civil RICO 16 claim against Defendant Carrington Mortgage (the only nongovernmental entity named as a 17 Defendant), the undersigned will recommend he be provided the opportunity to do so if he can in 18 good faith. 19 Separately, to the extent Plaintiff purports to assert a claim of mail fraud against 20 Defendants, that claim fails. Plaintiff, as a private individual, has no private right of action to 21 pursue violations of criminal statutes. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 22 1980) (holding specific criminal provisions in the United States Code “provide no basis for civil 23 liability”); Bland v. Gross, No. 1:20-cv-00542-DAD-BAM (PC), 2021 WL 120964, at *1 (E.D. 24 Cal. Jan. 13, 2021) (“Title 18 of the United States Code is a criminal statute and does not provide 25 individual plaintiffs with a private cause of action.”) (quotation and citation omitted). 26 Thus, to the extent Plaintiff’s complaint asserts mail fraud as a standalone claim, the 27 undersigned recommends the claim be dismissed without leave to amend. 1 V. Leave to Amend 2 Generally, Rule 15 provides that “leave [to amend] shall be freely given when justice so 3 requires.” Fed. R. Civ. P. 15(2). However, district courts are only required to grant leave to amend 4 if a complaint can be saved. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). “Courts are not 5 required to grant leave to amend if a complaint lacks merit entirely.” Id. When a complaint cannot 6 be cured by additional facts, leave to amend need not be provided. Doe v. United States, 58 F.3d 7 494, 397 (9th Cir. 1995). 8 As noted above, the undersigned finds further amendment is warranted only as to Plaintiff’s 9 civil RICO claim insofar he is able to cure the identified deficiencies in asserting a claim against 10 Defendant Carrington Mortgage. Additionally, the undersigned recommends the remaining claims 11 be dismissed without leave to amend as it does not appear those claims could be cured by additional 12 facts. 13 If Plaintiff wishes to file a first amended complaint, any such amended complaint should be 14 brief (Fed. R. Civ. P. 8(a)) but it must state what each named defendant did that led to the 15 deprivation of Plaintiff’s constitutional rights (Iqbal, 556 U.S. at 678-79). Although accepted as 16 true, the “[f]actual allegation must be [sufficient] to raise a right to relief above the speculative 17 level[.]” Twombly, 550 U.S. at 555 (citations omitted). Additionally, Plaintiff may not change the 18 nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 19 F.3d 605, 607 (7th Cir. 2007) (explaining no “buckshot” complaints permitted). 20 Finally, an amended complaint supersedes the original complaint. Lacey v. Maricopa Cnty., 21 693 F.3d 896, 927 (9th Cir. 2012). If Plaintiff elects to proceed with this action by filing an 22 amended complaint, the Court cannot refer to a prior pleading in order to make an amended 23 complaint complete. See E. D. Cal. Local Rule 220. The amended complaint must be complete 24 in itself without reference to the prior or superseded pleading. Once the amended complaint is 25 filed, the original pleading no longer serves any function in the case. Thus, in the amended 26 complaint, Plaintiff must re-plead all elements of his claims, including all relevant facts, even 27 the ones not addressed by this screening order. 1 VI. Conclusion, Order, and Recommendations 2 For the reasons discussed above, it is hereby ORDERED that: 3 1. Plaintiff’s motions to expedite review and request for immediate injunctive relief (Doc. 4 4) and for immediate ruling on his motion for temporary restraining order (Doc. 5) are 5 DENIED. 6 And it is hereby RECOMMENDED that: 7 1. Plaintiff’s motion for temporary restraining order (Doc. 3) be DENIED. 8 2. Plaintiff’s complaint (Doc. 1) be DISMISSED without prejudice as to his civil RICO 9 claim against Defendant Carrington Mortgage, and with prejudice and without leave to 10 amend as to his remaining claims. 11 3. Plaintiff be provided leave to amend to the extent that, within 21 days from the date of 12 service of any order by the presiding district judge adopting these Recommendations, 13 Plaintiff be directed to: 14 a. File a first amended complaint curing the deficiencies identified by the undersigned 15 in these Findings and Recommendations as to his remaining civil RICO claim; or 16 b. File a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) if 17 Plaintiff no longer wishes to pursue this action. 18 These Findings and Recommendations will be submitted to the United States District Judge 19 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 20 being served with a copy of these Findings and Recommendations, a party may file written 21 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 22 Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave 23 of Court and good cause shown. The Court will not consider exhibits attached to the Objections, 24 but a party may refer to exhibits in the record by CM/ECF document and page number. Any pages 25 filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 26 these Findings and Recommendations under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any 27 /// 1 | objections within the specified time may result in the waiver of certain rights on appeal. Wilkerson 2 | v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 3 | IT IS SO ORDERED. ‘ Dated: _ August 13, 2025 | Ww v KD Ke 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17