United States District Court, D. Maine
CHARLES B. NEPTUNE, Plaintiff
WILLIAM NICHOLAS SR., et al ., Defendants
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(E)
C. Nivison U.S. Magistrate Judge
action, Plaintiff Charles Neptune alleges William Nicholas,
Sr., Chief of the Passamaquoddy Tribe, violated
Plaintiff's rights under the Privacy Act of 1974 by
disclosing certain information regarding Plaintiff's
elver fishing activity.
filed an application to proceed in forma pauperis (ECF No.
3), which application the Court granted. (ECF No. 4.) In
accordance with the in forma pauperis statute, a preliminary
review of Plaintiff's complaint is appropriate. 28 U.S.C.
a review of the complaint in accordance with 28 U.S.C. §
1915(e)(2), I recommend the Court dismiss Plaintiff's
party is proceeding in forma pauperis, “the court shall
dismiss the case at any time if the court determines, ”
inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua
sponte prior to the issuance of process, so as to spare
prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
considering whether a complaint states a claim for which
relief may be granted, courts must assume the truth of all
well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A
complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “The relevant question ... in assessing
plausibility is not whether the complaint makes any
particular factual allegations but, rather, whether
‘the complaint warrant[s] dismissal because it failed
in toto to render plaintiffs' entitlement to
relief plausible.'” Rodriguez-Reyes v. Molina-
Rodriguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting
Twombly, 550 U.S. at 569 n. 14). Although a pro se
plaintiff's complaint is subject to “less stringent
standards than formal pleadings drafted by lawyers, ”
Haines v. Kerner, 404 U.S. 519, 520 (1972), the
complaint may not consist entirely of “conclusory
allegations that merely parrot the relevant legal standard,
” Young v. Wells Fargo, N.A., 717 F.3d 224,
231 (1st Cir. 2013). See also Ferranti v. Moran, 618
F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal
standard applied to the pleadings of pro se plaintiffs
“is not to say that pro se plaintiffs are not required
to plead basic facts sufficient to state a claim”).
alleges that Chief William Nicholas of the Passamaquoddy
Tribe and “Passamaquoddy Tribe Indian Township”
violated his rights under the federal Privacy Act of 1974.
Specifically, Plaintiff alleges that Defendants made
available for public inspection records of Plaintiff's
elver fishing landing reports, which reveal the location from
which Plaintiff obtained his “catch.” Plaintiff
asserts that as the result of Defendants' actions, he has
been deprived of future earnings.
“Federal courts are courts of limited jurisdiction.
They cannot act in the absence of subject matter
jurisdiction, and they have a sua sponte duty to confirm the
existence of jurisdiction in the face of apparent
jurisdictional defects.” United States v. Univ. of
Mass., Worcester, 812 F.3d 35, 44 (1st Cir. 2016). In
this case, Plaintiff, a Maine resident, has asserted a claim
against two Maine residents. Akins v. Penobscot
Nation, 130 F.3d 482, 485 (“Although Indian tribes
are not usually subject to the diversity jurisdiction of the
federal courts, the [Maine Indian Claims] Settlement Act [of
1980] subjects Maine tribes to diversity
jurisdiction”). Because both Plaintiff and Defendants are
Maine residents, Plaintiff has not alleged the diversity of
citizenship necessary for diversity jurisdiction. 28 U.S.C.
evidently attempts to invoke the Court's federal question
jurisdiction by seeking recovery for an alleged violation of
the Privacy Act of 1974, 5 U.S.C. § 552. The Privacy Act
of 1974 “generally prohibits disclosure of personal
records without the individual's written consent.”
Fed. Labor Relations Auth. v. U.S. Dep't of
Navy, 941 F.2d 49, 55 (1st Cir. 1991). The Act
authorizes individuals to file civil actions in federal
district courts against federal agencies, and it subjects the
United States to liability where the court determines that
the federal agency intentionally or willfully violated the
Act's requirements causing “actual damages.”
F.A.A. v. Cooper, 566 U.S. 284, 295 (2012); Doe
v. Chao, 540 U.S. 614, 616 (2004)); 5 U.S.C. §
552a(g)(1), (4), (5).
the Privacy Act applies only to federal agencies. 5 U.S.C.
§§ 552, 552a(a)(1). “Agency” is a
defined term meaning, subject to certain exceptions,
“each authority of the Government of the United States,
” id. § 551(1), including “any
executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency.” Id. §
552(f)(1). Native American Tribes and their officials are not
included among the entities that qualify as agencies of the
United States. See, e.g., Stevens v. Skenandore, 234
F.3d 1274 (2000) (Table) (finding “no private right of
action against tribe officials for violations of the Privacy
Act, which applies only to federal government
Plaintiff cannot bring a Privacy Act claim against the
Passamaquoddy Tribe or Chief Nicholas, and because Plaintiff
has not asserted a claim within the Court's diversity
jurisdiction, Plaintiff has failed to state a claim for
relief within the Court's subject matter ...