MacLeod v. Moritz

          Mona K. Majzoub, Mag. Judge.

          ORDER ADOPTING REPORT AND RECOMMENDATION [43]

          Judith E. Levy, United States District Judge.

         Before the Court is Magistrate Judge Mona K. Majzoub's Report and Recommendation (“R&R”) recommending that the Court grant defendants William Moritz, Wade Hamilton, Steve Milford, Scott Whitcomb, Rick McDonald, Greg Drogowski, Eric Botorff, Lori Burford, and Dennis Knapp's motion to dismiss (ECF No. 19) and deny plaintiff Dustin MacLeod's motion for summary judgment (ECF No. 26). The R&R recommends granting defendants' motion to dismiss because the complaint does not state a claim for which relief can be granted. Plaintiff submitted eight objections to the R&R, one of which has two sub-parts (ECF No. 46, 49), and defendants responded. (ECF No. 48.) For the reasons set forth below, plaintiff's objections are overruled, and the R&R is adopted in full.

         I. Background

         The Court has carefully reviewed the R&R and is satisfied that it is a thorough account of the relevant portions of the record. The Court incorporates the factual background from the R&R as if set forth herein.

         II. Legal Standard

         A party may object to a magistrate judge's report and recommendation on dispositive motions, and a district judge must resolve proper objections under a de novo standard of review. 28 U.S.C. § 636(b)(1)(B)-(C); Fed.R.Civ.P. 72(b)(1)-(3). “For an objection to be proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires parties to ‘specify the part of the order, proposed findings, recommendations, or report to which [the party] objects' and to ‘state the basis for the objection.'” Pearce v. Chrysler Group LLC Pension Plan, 893 F.3d 339, 346 (6th Cir. 2018). Objections that restate arguments already presented to the magistrate judge are improper, Coleman-Bey v. Bouchard, 287 Fed.Appx. 420, 422 (6th Cir. 2008) (citing Brumley v. Wingard, 269 F.3d 629, 647 (6th Cir. 2001)), as are those that dispute the general correctness of the report and recommendation. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).

         Moreover, objections must be clear so that the district court can “discern those issues that are dispositive and contentious.” Id. (citing Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that objections must go to “factual and legal” issues “at the heart of the parties' dispute”). In sum, plaintiff's objections must be clear and specific enough that the Court can squarely address them on the merits. See Pearce, 893 F.3d at 346.

         Although most of plaintiff's objections are difficult to comprehend, the Court will construe them liberally and in favor of the self-represented^[1] plaintiff.

         III. Analysis

         A. Objection 1

         In his first objection, plaintiff disputes the R&R's finding that he has not stated a claim under 42 U.S.C. § 1983. (ECF No. 49 PageID.760- 61.) Plaintiff argues that an 1836 Treaty confers a right to bring an individual case of this nature under § 1983.

         For a treaty to create an individual right that is enforceable by a private litigant under § 1983, it must “unambiguously confer[]” the right to do so with “unmistakable” language. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002). The private rights of action created by a treaty cannot be “broad” or “nonspecific.” Westside Mothers v. Olszewski, 454 F.3d 456, 461 (6th Cir. 2006). Here, there is no specific language in the Treaty conferring the right for an individual to bring an action to enforce its terms. In United States v. Michigan, 471 F.Supp. 192, 271-72 (W.D. Mich. 1979), which analyzed the same 1836 Treaty, the court also held that the Treaty did not confer individually enforceable rights on the members of the tribe: “[t]he fishing right reserved by the Indians in 1836 and at issue in this case is the communal property of the tribes which signed the treaty and their modern political successors; it does not belong to the individual tribal members.” Id. (emphasis added); see also Bellfy v. Creagh, No. 15-282, 2015 U.S. Dist. LEXIS 114342, at *3 (W.D. Mich. Aug. 28, 2015) (“[W]hile it is true that individual members of the tribes that are parties to the Consent Decree enjoy usufructuary rights- those rights are ‘communal property of the tribes which signed the treaty and their modern political successors,' and do ‘not belong to individual tribal members.'”) (quoting Michigan, 471 F.Supp. at 261). The Treaty does not confer a private right of action.

         Plaintiff disagrees with the law. In support, he cites to the 1905 case, United States v. Winans, 198 U.S. 371, 381 (1905), which states: “Reservations were not of particular parcels of land, and could not be expressed in deeds, as dealings between private individuals. The reservations were in large areas of territory, and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein.” (ECF No. 49, PageID.761.) Winans analyzes an 1859 fishing treaty between the Yakima Nation of Indians in the state of Washington, which is not the same treaty at issue in this case. Plaintiff's argument that Winans confers a private right of action in this case is incorrect. Plaintiff's first objection is overruled.

         B. Objection 2

         Plaintiff's second objection relates to his allegation that he has “standing as a right of user [sic] in tribal property derived from the legal or equitable property right of the Tribe of which he is a member.” (ECF No. 49, PageID.761.) Specifically, it appears plaintiff alleges that he has standing to enforce the terms of a 2007 judicial consent decree between, among others, the United States, the Sault Ste. Marie Tribe of Chippewa Indians, ...