Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MELISSA PHILLIPS,
Plaintiff - Appellant,
v. No. 23-7027 (D.C. No. 6:21-CV-00256-JFH-GLJ) JESSE JAMES; JESSICA BROWN; (E.D. Okla.) DAVID DOBSON; JESSE PETTY,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________
Plaintiff Melissa Phillips, appearing pro se, appeals from the district court’s
dismissal without prejudice of her amended complaint against four individual
members of the Choctaw Nation’s tribal police department. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm for substantially the same reasons given by the
district court, as summarized below.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 2
BACKGROUND
I. Plaintiff’s Allegations
Ms. Phillips filed her original complaint in August 2021 against tribal police
officers Jesse James, Jessica Brown, and David Dobson. On September 9, 2021, she
filed an amended complaint adding Chief of Police Jesse Petty. Liberally construed,1
the Amended Complaint asserted numerous state-law tort claims against the
defendants, including intentional and negligent infliction of emotional distress,
slander, and defamation; violations of various Oklahoma statutes and the federal
Violence Against Women’s Act (VAWA); and violations of the Fourth and
Fourteenth Amendments. All claims stem from the defendants’ alleged mishandling
of a prolonged dispute between Ms. Phillips and her neighbor.
The underlying facts are set forth in extensive, at times impenetrable fashion
in the Amended Complaint as well as a later complaint filed in the Choctaw Nation
District Court.2 The dispute began in July 2021 when Ms. Phillips’s neighbor
1 As a pro se litigant, Ms. Phillips is entitled to a liberal construction of her filings. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But she must still comply with the same rules as other litigants, and we do not act as her “attorney in constructing arguments and searching the record.” Id. 2 “In ruling on a motion to dismiss for failure to state a claim, all well-pleaded facts, as distinguished from conclusory allegations, must be taken as true, and the court must liberally construe the pleadings and make all reasonable inferences in favor of the non-moving party.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1105 (10th Cir. 2017) (brackets and internal quotation marks omitted). The defendants submitted Ms. Phillips’s tribal complaint to the district court to support their tribal court exhaustion argument, and it is included in the record on appeal. Although we have not relied on its allegations in determining 2 Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 3
initiated a campaign of stalking and dangerously harassing behavior towards her.
The neighbor’s conduct, which encompassed multiple instances of trespassing on
Ms. Phillips’s property, spying on her, and menacing her with a gun, prompted
Ms. Phillips in August 2021 to obtain an ex parte protective order against the
neighbor from the tribal court. This lawsuit arises out of the defendants’ actions or
inaction in connection with this protective order. Ms. Phillips alleges the defendants
failed to enforce the order and thus allowed her neighbor’s abusive behavior to
continue, failed to provide the documentation that she needed for the final protective
order hearing on November 5, 2021, and failed to refer violations of the order to the
office of the tribal prosecutor. Sprinkled throughout Ms. Phillips’s pleadings are
allegations that defendants discriminated against her because she is a Cherokee
woman and disabled. She also contends the defendants wrongly believed the tribal
court lacked jurisdiction to enforce the protective order against her neighbor because
he is a not a tribal member. And she alleges the defendants retaliated against her
after she filed this lawsuit and defamed her by calling her a liar.
In the “Relief Needed and Requested” section of her Amended Complaint,
Ms. Phillips requested numerous declarations, which can be loosely categorized as
follows: (1) an order declaring that tribal court jurisdiction extends to protective
order matters between tribal and non-tribal members; (2) an order declaring that
defendants’ handling of the protective order matter violated her civil rights; and
whether her federal-court complaint states a claim, we have considered them to the extent they help us understand the factual background of her claims. 3 Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 4
(3) an order instructing the tribal police to follow federal statutes governing tribal
court jurisdiction.3 Ms. Phillips also asked the district court to order the defendants
to produce various incident reports and to refer her neighbor’s alleged criminal
conduct to the tribal prosecutor. In addition, the Amended Complaint sought
emergency orders directing an FBI investigation into her allegations and referring
violations of the protective order to a federal prosecutor. Finally, Ms. Phillips sought
money damages against the defendants jointly and severally in the amount of
$250,000 plus punitive damages.
II. Dismissal of the Amended Complaint
On January 1, 2022, the defendants filed a motion to dismiss the Amended
Complaint under Federal Rule of Civil Procedure 12(b), asserting lack of jurisdiction
based on sovereign immunity, arguing the real party in interest here is the Choctaw
Nation. Defendants also raised defenses of qualified immunity, failure to state a
claim, and omission of a necessary party (the Choctaw Nation). On February 6,
2023, the district court, adopting a January 18, 2023, report and recommendation of
the magistrate judge, granted defendants’ motion and dismissed the Amended
Complaint without prejudice.4 As discussed below, the district court’s decision was
3 In her appeal brief, Ms. Phillips contends, “[t]he main reason for [the] declarative order was to declare that tribes DO have criminal jurisdiction over non-Indians under VAWA . . . .” Aplt. Opening Br. at handwritten p. 4.
4 The district court subsequently reopened the case to consider Ms. Phillips’s untimely objection to the report and recommendation and several other motions that she filed challenging the dismissal of the action. In an order dated March 24, 2023, 4 Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 5
based on sovereign immunity, Ms. Philipps’s failure to state a claim under the
Federal Rules of Civil Procedure, and comity concerns underpinning the tribal
exhaustion rule.
a. Sovereign Immunity
As the district court explained, “Native American tribes, such as the Choctaw
Nation, enjoy the same immunity from suit enjoyed by other sovereign powers and
are ‘subject to suit only where Congress has authorized the suit or the tribe has
waived its immunity.’” R. at 178 (quoting Kiowa Tribe of Okla. v. Mfg. Techs, Inc.,
523 U.S. 751, 754 (1998)). “[A] tribe’s immunity generally immunizes tribal
officials from claims made against them in their official capacities.” Native Am.
Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir. 2008). This
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.
The district court recognized this doctrine does not immunize individual
members of the tribe. “[I]ndividual defendants may be sued in their individual
capacities even where a suit arises out of actions the individuals took in their official
capacities.” R. at 179. “Where a suit is brought against the agent or official of a
sovereign, to determine whether sovereign immunity bars the suit, we ask whether
the court overruled Ms. Phillips’s objection and denied her other motions, which it construed together as a motion to reconsider under Fed. R. Civ. P. 59(e).
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the sovereign is the real, substantial party in interest.” Native Am. Distrib., 546 F.3d
at 1296 (internal quotation marks omitted). “This turns on the relief sought by the
plaintiffs.” Id. at 1297 (quotation marks omitted). As the district court explained,
“[i]f the relief sought is only nominally against the official and is in fact against the
official’s office, then the real party in interest is the sovereign and the suit will be
barred on the basis of sovereign immunity.” R. at 179 (citing Lewis v. Clarke,
581 U.S. 155, 161-62 (2017)). If, however, a plaintiff sues an individual for
monetary damages arising out of that person’s unconstitutional or wrongful conduct,
“sovereign immunity does not bar the suit so long as the relief is sought not from the
sovereign’s treasure but from the officer personally.” Native Am. Distrib., 546 F.3d
at 1297 (internal quotation marks and brackets omitted).
The district court characterized plaintiff’s various requests for equitable relief
as essentially seeking a collection of orders instructing the Choctaw Nation how to
enforce a protective order issued by its own court. The district court explained that
such orders—for example, one compelling the defendants to refer protective order
violations to the tribal prosecutor—would necessarily be directed to the defendants in
their official capacities as tribal police officers, not as individuals. The court thus
concluded “the real party in interest for all claims related to [plaintiff’s] equitable
prayers for relief is the Choctaw Nation and these claims are barred by sovereign
immunity.” R. at 181.
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b. Failure to State a Claim
The district court was careful to distinguish Ms. Phillips’s claims for money
damages from her equitable claims barred by sovereign immunity: “[h]ere, the
prayer for monetary damages is asserted . . . in a way that does not implicate the
Choctaw Nation or its treasury, thus tribal sovereignty will not operate to bar any
claims related to that prayer for relief.” R. at 181. The court concluded, however,
that Ms. Phillips failed to tie her damages request to the “unadorned listing of causes
of action” in her Amended Complaint. Id. at 182. The court acknowledged
Ms. Philipps’s attempt to allege constitutional violations but explained that a
cognizable claim offers more than “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action . . .’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Ultimately, the Amended Complaint failed to connect
Ms. Philipps’s federal claims to her request for monetary damages, and the court
concluded that doing so on her behalf would impermissibly cast it in “the role of
advocate for the pro se litigant.” R. at 182.
c. The Tribal Exhaustion Rule
The district court properly raised the tribal exhaustion rule sua sponte. United
States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir. 1996). It “provides that as a matter of
comity, a federal court should not exercise jurisdiction over cases arising under its
federal question or diversity jurisdiction, if those cases are also subject to tribal
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jurisdiction, until the parties have exhausted their tribal remedies.” Id.5 The rule
reflects “Congress’s strong interest in promoting tribal sovereignty” and the
presumption that jurisdiction “lies in tribal court unless Congress has expressly
limited that jurisdiction.” Id. (internal quotation marks and ellipsis omitted). We
have held that when it comes to jurisdictional questions in particular, federal courts
should not intervene until the tribal court has had a full opportunity to examine the
issue. Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1502 (10th Cir. 1997).
As the district court noted, this circuit takes a “strict view” of the tribal
exhaustion rule. R. at 183; see Kerr-McGee, 115 F.3d at 1507. We have held that
“federal courts should abstain when a suit sufficiently implicates Indian sovereignty
or other important interests.” Kerr-McGee, 115 F.3d at 1507 (internal quotation
marks omitted). The district court explained, when a dispute is “a ‘reservation
affair,’ comity concerns almost always dictate that the parties exhaust their tribal
remedies before resorting to the federal forums.” R. at 183 (internal quotation marks
omitted); see also Kerr-McGee, 115 F.3d at 1507 (observing, “when the dispute is a
‘reservation affair’ there is no discretion not to defer” (internal quotation marks
omitted)). When a dispute is not a reservation affair, the comity analysis requires
5 The tribal exhaustion rule does not require a pending action in tribal court, Tsosie, 92 F.3d at 1041, and it does not appear that a tribal court action was pending when the court dismissed the Amended Complaint in this case. We note, however, that Ms. Phillips has since filed an action in Choctaw District Court seeking much the same equitable relief sought here. In the certificate of service attached to that complaint, she states: “copies of this complaint shall be given to the federal court to show attempt to resolve matters at tribal level as the court wants any tribal remedy exhausted first.” R. at 279 (capitalization omitted). 8 Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 9
examination of the policy concerns set forth in National Farmers Union Ins. Co. v.
Crow Tribe, 471 U.S. 845, 856-57 (1985). Those concerns are “(1) furthering
congressional policy of supporting tribal self-government; (2) promoting the orderly
administration of justice by allowing a full record to be developed in the tribal court;
and (3) obtaining the benefit of tribal expertise if further review becomes necessary.”
Kerr-McGee, 115 F.3d at 1507.
The district court first asked whether this case presents a “reservation affair.”
In doing so, the court considered “whether the claims at issue implicate tribal
interests;” whether the case “implicates tribal law or policy;” “whether a tribal-court
proceeding involving the same parties is pending;” and “whether resolution of the
dispute involves interpretations of tribal law.” R. at 184. The court found a strong
tribal nexus in this case, noting the tribe’s considerable interest in protecting the
rights of its members and employees. This, in addition to the tribal law and policy
concerns implicated by plaintiff’s allegations convinced the court this case is a
reservation affair that should be decided by the tribal court.
The district court’s thorough analysis did not stop there. Despite concluding
this case is a reservation affair, the court dutifully went on to assess its abstention
obligation under National Farmers. It reasoned, “[a]s this case concerns in large part
the Choctaw Nation’s internal policies and laws, the orderly administration of justice
in the federal court will be served by allowing a full record to be developed in the
Tribal Court before either the merits or any question concerning appropriate relief is
addressed.” R. at 185 (internal quotation marks omitted). The court further reasoned
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that exercising its jurisdiction “would only serve to contravene the federal policy of
supporting tribal self-government.” Id. at 186. Finding no applicable exceptions to
the tribal exhaustion rule,6 the district court ultimately concluded that none of the
National Farmers policy objectives “would be advanced by the exercise of federal
jurisdiction over a matter concerning a protective order originating in the Choctaw
Nation Tribal Courts and enforced by Choctaw Nation employees.” Id. at 185. It
therefore dismissed Ms. Phillips’s federal claims as a matter of comity.7
DISCUSSION
I.
Because the dismissal in this case was without prejudice, we examine our
jurisdiction. In general, this court has jurisdiction only over “final decisions of the
district courts.” 28 U.S.C. § 1291. “A case dismissed without prejudice may or may
not be a final appealable order, depending upon the circumstances.” Coffey v.
Whirlpool Corp., 591 F.2d 618, 620 (10th Cir. 1979). “A dismissal of the complaint
is ordinarily a non-final, nonappealable order (since amendment would generally be
available), while a dismissal of the entire action is ordinarily final.” Moya v.
6 “As a prudential rule based on comity, the tribal exhaustion requirement is subject to several exceptions.” Norton v. Ute Indian Tribe of the Uintah & Ouray Rsrv., 862 F.3d 1236, 1243 (10th Cir. 2017). Given this court’s strict view of the tribal exhaustion doctrine, the exceptions, which are detailed in Norton, are applied narrowly. Id. 7 Having dismissed all the federal claims, the district court declined to exercise supplemental jurisdiction over Ms. Phillips’s state law claims. See Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir. 1998). 10 Appellate Case: 23-7027 Document: 010111001735 Date Filed: 02/16/2024 Page: 11
Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006) (internal quotation marks
omitted). But “an order is not necessarily devoid of finality simply because it speaks
in terms of dismissal of the complaint.” Id. “In evaluating finality, . . . we look to
the substance and objective intent of the district court’s order, not just its
terminology.” Id. Here the district court denied any further amendment to the
complaint as futile and entered judgment against Ms. Phillips in favor of the
defendants. Under these circumstances, it is clear the district court intended to
dismiss the entire action. We thus have jurisdiction under § 1291 to hear this appeal.
To the extent the district court dismissed Ms. Philipps’s claims for lack of
subject matter jurisdiction or failure to state a claim, our review is de novo. See Blue
Valley Hosp., Inc. v. Azar, 919 F.3d 1278, 1283 (10th Cir. 2019) (stating standard of
review applicable to subject matter jurisdiction dismissal) and Brokers’ Choice,
861 F.3d at 1104 (failure to state a claim). “We review a dismissal on exhaustion
grounds for an abuse of discretion.” Tsosie, 92 F.3d at 1041 (internal quotation
marks omitted). A “district court abuses its discretion if it does not apply the correct
law or if it rests its decision on a clearly erroneous finding of material fact. The
proper scope of the tribal exhaustion rule, however, is a matter of law which we
review de novo.” Id. (internal quotation marks and citation omitted).
II.
Although she frames the argument in several different ways, Ms. Phillips’s
chief contention on appeal is that the district court erred in requiring exhaustion of
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her claims in tribal court.8 She does not challenge the court’s sovereign immunity
ruling but argues Choctaw law forecloses her claims against the individual
defendants and, therefore, the court’s dismissal of this action amounted to denial of
access to the courts. Ms. Philipps does not cite to any such tribal law, however, or
point to any unsuccessful effort she has made to seek monetary damages against the
individual defendants in tribal court. Moreover, Ms. Phillips fails to address the
district court’s conclusion that her claims against the individual defendants failed to
satisfy the pleading requirements of the federal rules of civil procedure under
Twombly, 550 U.S. at 555.
Having thoroughly reviewed the briefs and the record, along with the
well-reasoned magistrate judge’s report and recommendation and the district court’s
decision adopting it, we find no reversible error or abuse of discretion. We conclude
the district court correctly characterized plaintiff’s requested equitable remedies as
seeking relief against the Choctaw Nation rather than the defendants in their
individual capacities. Accordingly, those claims were properly dismissed for lack of
jurisdiction based on tribal sovereign immunity. To the extent the Amended
Complaint sought to allege claims against defendants in their individual capacities,
8 We do not address Ms. Phillips’s vague assertions of wrongdoing against defense counsel, which are neither particularized nor supported by any record citations. See Fed. R. App. P. 28(a)(8)(A) (requiring “appellant’s contentions and the reasons for them” be supported by “citations to the authorities and parts of the record on which the appellant relies”).
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we agree with the district court’s Twombly analysis. Finally, we agree that abstention
is warranted here based on the comity concerns underlying the tribal exhaustion rule.
CONCLUSION
We affirm for substantially the same reasons set forth in the magistrate judge’s
report and recommendation, dated January 18, 2023, which was adopted by the
district court in its order of February 6, 2023.
Entered for the Court
Bobby R. Baldock Circuit Judge