Mohn v. Zinke , 688 F. App'x 554 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 2, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
AYINDE MOHN,
Plaintiff - Appellant,
v. No. 17-5002
(D.C. No. 4:16-CV-00460-TCK-TLW)
RYAN ZINKE, Secretary of the Interior; (N.D. Okla.)
MICHAEL S. BLACK, Acting Assistant
Secretary of the Interior - Indian Affairs;
STEVEN TERNER MNUCHIN, Secretary
of the Treasury,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Proceeding pro se1 and in forma pauperis (IFP), Ayinde Mohn appeals the
dismissal of his civil action for failure to state a claim. We affirm.

Ryan Zinke, Michael S. Black, and Steven Terner Mnuchin are substituted as
defendants-appellees. See Fed. R. App. P. 43(c)(2).
**
After examining the brief and appellate record, this panel unanimously
determines that oral argument wouldn’t 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
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
1
We liberally construe Mohn’s pro se filings. But it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Mohn brought a civil action “to redress gross breaches of trust by the United
States, acting by and through the defendants,” arising from the defendants’ alleged
mismanagement of Individual Indian Money (IIM) accounts belonging to “Celia
Hardrick, Perry Hardrick, James Hardrick, Rosa Hardrick, Julia Hardrick, Lewis
Hardrick, and Plaintiff Mohn.” R. vol. 1, 62. Mohn sought various forms of relief on
behalf of the Hardricks and himself, including “a decree ordering [d]efendants to
issue ‘full-blood Certificates of Degree of Indian Blood’ in the name of [each
Hardrick] and himself.”2 R. vol. 2, 25.
Because Mohn sought to commence his civil action IFP under 28 U.S.C.
§ 1915(a)(1), the district court screened Mohn’s amended complaint prior to service
of process. See § 1915(e)(2)(B)(ii) (requiring court to screen IFP complaints and
dismiss action if court determines action fails to state claim upon which relief may be
granted). After thoroughly reviewing Mohn’s amended complaint and various
documents attached to it, the court determined that Mohn failed to state any claim
upon which relief could be granted.
First, the court concluded that Mohn (1) “failed to adequately allege facts
demonstrating that he would be entitled to any compensation or relief as an heir of
the Hardricks . . . .” R. vol. 2, 25-26. Critically, the court noted that Mohn disavowed
his averment that “he is an eligible heir to [the Hardricks’] respective IIM accounts”
2
The Bureau of Indian Affairs (BIA) will issue a “Certificate of Degree of
Indian Blood (CDIB)” to individuals who can establish direct lineage to “an enrollee
with an Indian blood degree who is listed on the Index and Final Rolls of Citizens
and Freedmen of the Cherokee Tribe (Final Rolls).” R. vol. 1, 98 (citing Act of
August 4, 1947, Pub. L. No. 80-336, 61 Stat. 731, 732).
2
by striking through that averment in his amended complaint. R. vol. 1, 78. The court
further noted that while Mohn also alleged that he is a “direct lineal” descendant of
“Anderson Reese, James Reese, Betsy Reese, and Jesse Reese,” id. at 87, Mohn
“failed to allege any connection between [himself] and the Hardricks, or the Reese
relatives and the Hardricks,” R. vol. 2, 26.
Second, the court concluded that Mohn had apparently styled his amended
complaint after a class-action complaint raising claims related to mismanagement of
IIM accounts and trust lands. That class action resulted in a 2009 court-approved
settlement. The court noted that Mohn submitted a claim under the 2009 settlement as
an heir to a deceased IIM account holder or individual Indian land owner. But his
claim was denied; he was ineligible because he failed to establish he was heir to an
Indian with a blood degree.3 The court further noted that even assuming Mohn would
have qualified as a class member based on his new allegations of a relationship to the
Hardricks, he failed to preserve his claims when he failed to “opt out” of the 2009
settlement. Id. at 27.
Third, the court concluded that even assuming Mohn adequately alleged he is
an heir to the Hardricks and that he had properly preserved claims already settled in
the 2009 settlement, Mohn’s claims nevertheless fail on the merits. The court
reasoned that the documents Mohn attached to his amended complaint demonstrate
3
After Mohn’s settlement claim was denied, Mohn requested a CDIB from the
BIA. But the BIA denied his request. Mohn subsequently filed this civil action in the
Northern District of Oklahoma and “numerous other pro se cases in the Eastern
District of Oklahoma.” R. vol. 2, 18 n.1, 20-22.
3
that the Hardricks are listed “on the Cherokee Freedmen roll and lack a degree of
Indian blood.” Id. In fact, the records attached to Mohn’s complaint demonstrate that
while the Reeses are his direct lineal ancestors, the BIA denied Mohn’s application
for a CDIB because the Reeses are listed on the Final Rolls “without an Indian blood
degree.” R. vol. 1, 102. Instead, the BIA’s denial letter explains, the Reeses are listed
as “Freedmen,” i.e., former slaves owned by the Cherokee who obtained Cherokee
citizenship through treaties negotiated with the Cherokee when slavery was abolished
after the Civil War. Id. at 103. Thus, the court reasoned, neither Mohn’s documented
relationship with the Reeses nor his alleged connection with the Hardricks would
entitle him to a CDIB.
Finally, the district court noted Mohn’s passing references to his own IIM
account and rejected any claim Mohn might be asserting based on these references.
The court reasoned that “the BIA twice concluded Plaintiff’s maternal Reese relatives
lacked the necessary Indian blood to qualify him for a CDIB” and that if Mohn “had
his own IIM account, he could have submitted a claim [under the 2009 settlement] on
that basis without regard to his ancestors.” Id.
The court ultimately concluded that Mohn failed to state a claim upon which
relief could be granted, denied Mohn’s motion for IFP status, and dismissed the
matter with prejudice. Mohn appeals.
“We review de novo the district court’s decision to dismiss an IFP complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500
F.3d 1214, 1217 (10th Cir. 2007). Dismissal “is proper only where it is obvious that
4
the plaintiff cannot prevail on the facts he has alleged and it would be futile to give
him an opportunity to amend.” Curly v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001)
(quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999)).
On appeal, Mohn asserts that the district court erred in (1) disregarding the
Secretary of Interior’s exclusive jurisdiction over certain actions, and (2)
disregarding Mohn’s assertions that the defendants violated several federal statutes
and decrees. The remainder of Mohn’s brief directs us to various statutory and
administrative provisions, asserts new, unrelated factual allegations and legal
theories, and seeks certification of a class action with Mohn as the class
representative. Even liberally construing Mohn’s appellate brief, we fail to find any
acknowledgement of, let alone coherent arguments challenging, the underlying bases
for the district court’s dismissal of his civil action.
In any event, having reviewed the amended complaint and the attached
documents, we conclude for substantially the same reasons as the district court that
sua sponte dismissal was appropriate. It’s “obvious that [Mohn] cannot prevail on the
facts he has alleged and [that] it would be futile to give him an opportunity to
amend.” Curly, 246 F.3d at 1281 (quoting Perkins, 165 F.3d at 806). Thus, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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