EARLINE COLE, as an individual and as personal representative of the ESTATE OF STEVEN BEARCRANE, et al., Plaintiffs,
MATTHEW ORAVEC, in his individual capacity, Defendant.
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
Plaintiffs allege that Defendant Matthew Oravec ("Oravec"), an FBI special agent, was motivated by racial animus toward Native Americans in refusing or failing to adequately investigate the death of Steven Bearcrane ("Bearcrane") and the disappearance and death of Robert Springfield ("Springfield") in violation of their equal protection rights. Plaintiffs are Bearcrane's and Springfield's Personal Representatives who originally brought this action generally alleging discrimination against Native Americans. Cmplt. (ECF 1). 
All claims and Defendants have been dismissed except Plaintiffs' equal protection Bivens  claims against Oravec. See ECFs 56 and 69. This Court has jurisdiction under 28 U.S.C. § 1331. The matter is referred to the undersigned under 28 U.S.C. § 636(b)(1)(A)-(B). In re: Reassignment of Pending Civil Cases (ECF 95). Now pending is Oravec's Motion for Judgment on the Pleadings and for Partial Summary Judgment ( ECF 96 ). Having heard oral argument on November 19, 2013, and having carefully considered the parties' briefs and the applicable law, the Court enters the following Findings and Recommendations.
The Court described this matter's factual background, including Plaintiffs' allegations and claims, in its Findings and Recommendations filed on May 25, 2010. ECF 53 at 2-9. The Court will not repeat that information here except as necessary for clarity.
This matter's procedural background warrants more discussion. In the May 25, 2010 Findings and Recommendations, the undersigned recommended that Counts I, II, IV, and V of Plaintiffs' Amended Complaint be dismissed, and that "Count III be dismissed except as to the Personal Representatives against Defendant Matthew Oravec." Id . at 57.
On June 17, 2010, then-Chief Judge Cebull adopted the Findings and Recommendations in their entirety. Order Adopting Findings and Recommendations (ECF 56) at 13. Thus, Judge Cebull dismissed all Counts except that portion of Count III relating to the claims of the Personal Representatives against Oravec.
On August 13, 2010, Plaintiffs and Oravec appealed to the Ninth Circuit Court of Appeals. Oravec's Notice of Appeal (ECF 59) (USCA Case Number 10-35710) and Plaintiffs' Notice of Appeal (ECF 60) (USCA Case Number 10-35717). On October 7, 2010, the Ninth Circuit mediator issued an Order granting Plaintiffs' motion to dismiss their appeal - USCA Case Number 10-35717 - under Fed. R. App. P. 42(b). Order (ECF 66).
Respecting Oravec's appeal, on January 10, 2012, the Ninth Circuit issued an unpublished memorandum decision affirming this Court's denial of Oravec's motion to dismiss the equal protection claim against him based on qualified immunity to the extent the claim related to the investigation into Bearcrane's death. Memorandum (ECF 69) at 2-4. The Ninth Circuit reversed a portion of this Court's decision, however, "because the allegations made on deceased Robert Springfield's behalf are not sufficient[.]" Id. The court remanded to allow Plaintiffs "leave to amend their complaint with regard to the Springfield investigation." Id . at 5.
The Ninth Circuit later denied Oravec's petitions for panel rehearing and rehearing en banc. Order (ECF 71) at 1-2. It also granted Oravec's motion for a stay of the issuance of the mandate pending application for a writ of certiorari. Order (ECF 72).
The United States Supreme Court denied Oravec's petition for a writ of certiorari. Letter (ECF 75). The Clerk of the Ninth Circuit then issued the formal mandate, remanding the case to this Court. Mandate (ECF 76).
On February 27, 2013, the Court and counsel participated in a scheduling conference. ECF 81. On February 28, 2013, the Court issued a Scheduling Order. ECF 82.
On April 11, 2013, with no objection by Oravec and having received the Court's leave, Plaintiffs filed an Amended Complaint ("Amended Complaint (Second)"). ECF 93. On April 25, 2013, Oravec filed his "Answer to the Plaintiffs' Amended Complaint (Second)." Answer (ECF 94).
On June 7, 2013, Oravec filed the pending "Motion for Judgment on the Pleadings and for Partial Summary Judgment." ECF 96. On July 29, 2013, Plaintiffs filed a "Rule 56(d) Motion for Court to Defer Consideration of Defendant's Motion for Summary Judgment and, if not Granted, for One-Week Extension." ECF 102. In an Order filed September 12, 2013, the Court denied Plaintiffs' motion to the extent it sought deferral of consideration of Oravec's summary judgment motion until after the close of discovery, but granted the motion to the extent Plaintiffs sought a one-week extension of time to respond to Oravec's motion. Order (ECF 105). The Court set deadlines for Plaintiffs to respond to Oravec's motion and for Oravec to respond. The Court also permitted oral argument, which was held on November 19, 2013. At the conclusion of oral argument, the Court also permitted the parties to file supplemental briefs, which they did. ECF 116 (Oravec's Supp. Br.) and ECF 117 (Plaintiffs' Resp. to Oravec's Supp. Br.).
As noted, only the Personal Representatives' equal protection Bivens claims against Oravec in Count III remain. See ECF 93 at ¶¶ 10, 12, 15, 38-40, and 72-75. All other claims and Defendants have been dismissed. ECFs 56 and 69.
In seeking dismissal of the remaining claims, Oravec advances two principal arguments. First, respecting Plaintiffs' constitutional claims on behalf of Bearcrane ("Bearcrane claims"), Oravec seeks summary judgment under Rule 56(a) arguing that the applicable statute of limitations bars the claims. ECF 96 at 2. Second, respecting Plaintiffs' constitutional claims on behalf of Robert Springfield ("Springfield claims"), Oravec seeks judgment on the pleadings under Rule 12(c). He argues that the Amended Complaint (Second), like the first Amended Complaint found deficient by the Ninth Circuit, fails to adequately allege a Fifth Amendment equal protection violation. Id. The Court addresses each argument in turn.
A. Oravec's Summary Judgment Motion Respecting the Bearcrane Claims
1. Parties' Arguments
Oravec argues that Montana's three-year statute of limitations for personal injury actions applies to Plaintiffs' Bivens claims. Oravec's Opening Br. (ECF 97) at 4-6. He maintains that, absent any reason for tolling the limitations period, Plaintiffs were required to bring their claims within three years after their causes of action accrued. He argues that, under applicable federal law, a Bivens cause of action accrues when the plaintiff knows or should have known that he or she has been harmed. Because undisputed facts show that Plaintiffs knew or should have known that they were harmed more than three years before they filed this action, Oravec argues, the Bearcrane claims are barred. Id.
He argues specifically that the Bearcrane claims accrued when Plaintiffs suspected, or should have suspected, that racial animus, bias, or prejudice against Native Americans motivated him to conduct an inadequate investigation thus violating Bearcrane's Fifth Amendment rights. Id . at 6. Oravec argues that the following evidence proves Plaintiffs' awareness, and thus accrual of their claims, more than three years before the February 24, 2009 filing of this action:
(1) throughout 2005 and 2006 after the February 2, 2005 fight during which non-Indian Bobby Holcomb ("Holcomb") shot and killed Bearcrane, Bearcrane's parents ("the Coles") visited with Oravec and his FBI supervisor to request investigation records and the Coles repeatedly told Oravec's supervisor that Oravec was failing to perform an adequate investigation, id.;
(2) on February 11, 2005, the Coles presented a formal request for assistance to the U.S. Commission on Civil Rights, a representative of which, in turn, wrote to the FBI seeking information on the progress and status of the FBI's investigation of the Bearcrane shooting, id. at 7;
(3) on October 11, 2005, the Coles formally complained to the FBI's Salt Lake City office, id.;
(4) also on October 11, 2005, the Coles sent a written complaint to U.S. Senator Max Baucus, in which they wrote:
We are requesting a Congressional inquiry on the handling of the investigation of the murder of our son, Steven Thomas Bearcrane, who was shot Feb. 2, 2005. Since the day this devastating incident occured [sic] our questions remain unanswered by Federal Bureau of Investigation.
We believe the initial investigation was not only inappropriately handled but also biased. The man who killed our son was never arrested or charged for his crime and continues to go on with his life.
(5) on October 12, 2005, the Coles met with Assistant U.S. Attorney Mara Kohn ("Kohn"), who told them that the South Dakota U.S. Attorney's Office, which was handling the case, would not prosecute Holcomb for the shooting, id. at 8;
(6) the same day, Kohn annotated in the office file that the primary reason for declining to prosecute was "lack of evidence of criminal intent[, ]" id.;
(7) on October 17, 2005, the Coles acknowledged the decision to decline to prosecute in a letter to Kohn, id.;
(8) in a November 2, 2005 letter Kohn responded to the Coles noting that "[n]one of the factors discussed have ...