Steven Gould, Plaintiff-appellant, v. Pat Gallagher, Defendant-appellee, 12 F.3d 212 (6th Cir. 1993)

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US Court of Appeals for the Sixth Circuit - 12 F.3d 212 (6th Cir. 1993)

Dec. 6, 1993


W.D. Mich., No. 93-00031; Robert Holmes Bell, J.

W.D. Mich.

AFFIRMED.

Before: KEITH and NORRIS, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

Steven Gould, a pro se Michigan citizen, appeals a district court order dismissing a complaint in which he attempted to assert a federal civil rights claim. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking two and one half million dollars in damages, Gould filed a complaint against a security guard at a casino located in Indian trust territory, alleging that the defendant had severely beaten him. The defendant moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, pursuant to Fed. R. Civ. P. 12(b) (1) and (6). The district court granted this motion and dismissed the complaint.

Upon review, we conclude that the complaint was properly dismissed for the reasons stated by the district court. Gould did not state a claim under 42 U.S.C. § 1985, as the complaint failed to allege a racial or class-based conspiracy to interfere with constitutionally protected rights. See Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 758 (1993). The complaint also failed to state a claim under 42 U.S.C. § 1983, as no state action was alleged. The defendant was alleged to be an employee of the casino, operated by an Indian tribe. Tribes are not states for purposes of Sec. 1983. Chapoose v. Hodel, 831 F.2d 931, 934 (10th Cir. 1987). Finally, the allegations that Gould makes in his appellate brief concerning racial discrimination were not made in the district court and cannot be considered on appeal. Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991).

The dismissal of this complaint for lack of subject matter jurisdiction and failure to state a claim is accordingly affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.