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Fisherman v. Zinka

United States District Court, D. Minnesota

April 16, 2018

COREY EDWARD FISHERMAN, Plaintiff,
v.
RYAN ZINKE, [1] Secretary of the Interior, Defendant.

          REPORT AND RECOMMENDATION

          Franklin L. Noel United States Magistrate Judge

         In 1996, beneficiaries of Individual Indian Money (“IIM”) trust accounts brought a class action against several officers of the federal government alleging that the officials had violated their fiduciary duties as trustees acting on behalf of the Untied States. See Cobell v. Salazar, 573 F.3d 808, 809 (D.C. Cir. 2009). The case meandered through the federal courts, Jarndyce-like, for a generation. Not until 2011 was final approval given by the district court to a class settlement. See Cobell v. Salazar, 679 F.3d 909, 916 (D.C. Cir. 2012). Ancillary matters related to that litigation, such as attorney's-fee disputes, remain pending to this day. See Cobell v. Jewell, 234 F.Supp.3d 126 (D.D.C. 2017).

         Fisherman, a Minnesota state prisoner, believes he suffered the same harms that befell the Cobell plaintiffs. Fisherman did not pay the filing fee for this action, but instead applied for in forma pauperis (“IFP”) status. After review of the IFP application, this Court concludes that Fisherman qualifies financially for IFP status.[2] Nevertheless, an action may be dismissed when an IFP applicant has filed a complaint that fails to state a cause of action on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (per curiam). In reviewing whether a complaint states a claim on which relief may be granted, this Court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008). Although the factual allegations in the complaint need not be detailed, they must be sufficient to “raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on its face.” Id. at 570. In assessing the sufficiency of the complaint, the court may disregard legal conclusions that are couched as factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). Pro se complaints are to be construed liberally, but they still must allege sufficient facts to support the claims advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

         Fisherman offers no factual allegations that, if proved true, would demonstrate that the federal government has mismanaged any money held in IIM trust for his benefit, or that he is entitled to relief from the federal government for any other reason. Indeed, Fisherman does nothing more than point to the Cobell litigation and suggest that he, too, must have suffered similar harms as those plaintiffs. See Compl. at 6 [ECF No. 1]. But vague gesturing towards other litigation is hardly sufficient to put the defendant or the Court on notice of the specific allegations being made by Fisherman in this lawsuit. Fisherman does not claim that he was the beneficiary of an IIM trust account during the period in question, nor does he set forth allegations demonstrating how governmental officials might have breached fiduciary duties with respect to his IIM trust account.

         Even if this Court were to adopt wholesale the allegations set forth in Cobell as applying to this litigation, this action could not go forward. Cobell was a class action. To the extent that Fisherman's allegations mirror those raised in Cobell - and, by all appearances, this is nothing more than a “me too” complaint - his claims have already been adjudicated through approval of the final settlement entered and approved in Cobell over six years ago.[3] Fisherman's recourse to relief for the harms litigated in Cobell is through presenting a claim through the procedures established by the Cobell settlement (an administrative process that remains open presently), not through the filing of a mirroring lawsuit several years after the settlement was finalized and an even greater number of years after the conclusion of the actions and omissions at issue in Cobell.

         In any event, the allegations of wrongdoing raised in Fisherman's complaint are entirely conclusory. Fisherman claims that government officials “violated their fiduciary duties” without providing anything more than a citation to a different lawsuit in support of his allegation. See Compl. at 6. Although Fed.R.Civ.P. 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” more is required of Fisherman than he has provided. Accordingly, it is hereby recommended that this matter be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A.

         RECOMMENDATION

         Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT:

         1. This matter be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A.

         2. Plaintiff Corey Edward Fisherman's application to proceed in forma pauperis [ECF No. 2] be DENIED.

         3. Fisherman pay the unpaid balance of the statutory filing fee for this action ($350.00) in the manner prescribed by 28 U.S.C. § 1915(b)(2), and the Clerk of Court provide notice of this requirement to the authorities at the institution where Fisherman is confined.

         NOTICE

         Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.

         Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge's proposed finding and recommendations within 14 days after being served a copy” of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). ...


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