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Cole v. Federal Bureau of Investigation

United States District Court, D. Montana, Billings Division

February 7, 2019

FEDERAL BUREAU OF INVESTIGATION, Salt Lake City, Utah Office; FEDERAL BUREAU OF INVESTIGATION, Billings, Montana Office; and MATTHEW ORAVEC, in his individual capacity, Defendants.



         Plaintiffs Earline Cole, Cletus Cole, and Precious Bearcrane bring this action against Defendants Matthew Oravec and the Federal Bureau of Investigation Billings, Montana and Salt Lake City, Utah offices. Jurisdiction is based on 28 U.S.C. § 1331, 1361 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). District Judge Sam E. Haddon has referred this case to the undersigned to conduct all pretrial proceedings and to submit findings and recommendations for the disposition of all motions excepted from a Magistrate Judge's jurisdiction, pursuant to 28 U.S.C. § 636(b)(1(B). (Doc. 154.)

         Presently before this Court is Defendant Oravec's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6).[1] (Doc. 162.) The motion has been fully briefed and is ripe for decision. (Docs. 162, 166, 169.) Having reviewed the parties' arguments and submissions, and for the reasons discussed below, it is recommended that Oravec's motion be GRANTED.

         I. Background

         This case arises out of the tragic death of Steven Bearcrane on February 2, 2005. Mr. Bearcrane, a member of the Crow Nation, was fatally shot and killed on the Crow Indian Reservation by Bobby Holcomb, a non-Native American. (Doc. 133 at ¶¶ 1, 8.) The shooting was investigated by the FBI. Defendant Matthew Oravec (“Oravec”), a Senior Special Agent in the FBI Billings, Montana office, was assigned to the investigation. (Doc. 159 at ¶ 28.) After concluding its investigation, the FBI classified the shooting as a “non-crime.” The Plaintiffs allege that the FBI and Oravec's investigation was “patently deficient, ” and that Oravec failed to provide the Plaintiffs and other Native Americans equal protection of the law by failing to provide law enforcement services to them because they are Native American. (Doc. 159 at ¶ 12.)

         The case has a lengthy procedural history; only the relevant procedural posture is provided. The action was initially filed on February 24, 2009 by the Estate of Steven Bearcrane and members of his family individually. (Doc. 1.)[2]The action was asserted against the FBI, Billings, Montana Office, the United States Attorney's Office for South Dakota, and numerous individuals from those governmental entities. Id.

         The Defendants moved to dismiss on various grounds. U.S. Magistrate Judge Carolyn Ostby recommended that all of Plaintiffs' claims be dismissed, except for an equal protection claim against Oravec by the Personal Representatives of the Estate. (Doc. 56 at 13.) Judge Ostby found the individual Plaintiffs did not have standing to sue in their individual capacities, but she determined the Personal Representatives had standing to pursue claims on behalf of the Estate. (Doc 56 at 6-7.)

         Judge Ostby also specifically addressed the issue of qualified immunity, and found Oravec was not entitled to qualified immunity on the Personal Representatives' claims. (Doc. 53 at 45.) Judge Ostby determined that the Personal Representatives had adequately alleged the violation of a federally secured right to nondiscriminatory investigative services, and that the right was clearly established. (Doc. 53 at 35-37, 44.)

         Judge Ostby's Findings and Recommendations were adopted in full by U.S. District Court Judge Richard Cebull on June 17, 2010. (Doc. 56 at 13.) Oravec appealed the Court's denial of his qualified immunity motion; the Ninth Circuit affirmed. Cole v. Oravec, 465 Fed.Appx. 687 (9th Cir. 2012). Oravec subsequently filed a petition for a writ of certiorari with the United States Supreme Court; the Supreme Court denied Oravec's petition. (Doc. 75.)

         After remand, Oravec filed a motion for summary judgment on the Personal Representatives' sole remaining Bivens claim. (Doc. 126.) In his motion, Oravec again asserted he was entitled to qualified immunity because his alleged discriminatory acts occurred after Bearcrane's death. Judge Ostby agreed, finding Bearcrane's Estate did not have a cause of action for violation of his constitutional rights when the alleged acts giving rise to the violation occurred after his death. (Doc. 138 at 23.) District Judge Sam E. Haddon adopted Judge Ostby's Findings and Recommendations, granting Oravec's Motion for Summary Judgment in full on July 22, 2014. (Doc. 142.)

         Plaintiffs appealed Judge Haddon's July 2014 order granting summary judgment, and also Judge Cebull's June 2010 order dismissing Plaintiffs' individual capacity claims. (Doc. 146.) The Ninth Circuit reversed the dismissal of the individual capacity claims, finding the individual Plaintiffs have standing to assert equal protection claims based on their denial of benefits under the crime victims' rights statutes. (Doc. 152.) The Ninth Circuit also found Plaintiffs plausibly alleged an equal protection claim against the FBI. Id. The court remanded the case for consideration of Oravec's qualified immunity defense. Id.

         After the case was remanded to this Court, Plaintiffs filed a Second Amended Complaint. (Doc. 159.) The Second Amended Complaint alleges violations of the Plaintiffs' Fifth Amendment equal protection rights against the FBI and Oravec. Id. at ¶¶ 57-58. Plaintiffs' claim against Oravec is asserted under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (“Bivens”). Id. at ¶ 12.

         In the Second Amended Complaint, Plaintiffs allege a “Policy of Discrimination Against Native Americans in [the] Investigation and Prosecution of Crimes.” Id. at 6. The Plaintiffs allege “[c]rime is rampant and out of control in Indian Country, ” and they cite crime statistics, political statements, and news articles to support their claim. Id. at ¶¶ 20-22. They further allege that the refusal of federal agencies to provide the same law enforcement services to Native Americans as provided to non-Native Americans has played a major role in creating this serious crime problem. Id. at ¶ 22.

         The Second Amended Complaint further alleges Oravec and the FBI have “adopted and engaged in a continuing pattern and practice of selectively discriminating against Native Americans in providing law enforcement services on the Crow reservation.” (Doc. 159 at ¶¶ 26, 51, 52, 60.) Plaintiffs allege that Oravec's discriminatory pattern and practice, including “the failure to adequately investigate crimes, ” has led “in many instances to a failure to prosecute crimes against Native Americans.” Id. at ¶ 26.

         Plaintiffs also make several allegations concerning Oravec's investigation of the death of Steven Bearcrane. Plaintiffs claim that due to his alleged “patently inadequate investigation, ” they have been denied benefits and services under the crime victims' statutes. Id. at ¶¶ 19, 60.

         II. Legal Standard

         Oravec moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal under Rule 12(b)(6) is informed by Rule 8(a)(2), which requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Dismissal is proper under Fed.R.Civ.P. 12(b)(6) only when the complaint lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).

         To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility is context-specific, requiring courts to draw on judicial experience and common sense when evaluating a complaint. Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014).

         When considering a 12(b)(6) motion, a court must accept as true the allegations of the complaint and construe them in the light most favorable to the nonmoving party. Hardesty v. Barcus, 2012 WL 705862, *2 (D. Mont. Jan. 20, 2012). However, “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S 544, 555 (2007).

         III. Discussion

         Oravec sets forth two arguments in support of his motion to dismiss. First, Oravec asserts the Plaintiffs have not stated a cognizable claim for an implied right of action for damages under Bivens. (Doc. 162.) Second, Oravec argues he is entitled to qualified immunity. Id.

         A. Bivens Cause of Action

         A Bivens claim is an implied right of action for damages against a government official alleged to have violated an individual's constitutional rights. Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017) (“Abbasi”). The Supreme Court first acknowledged the claim in the context of a Fourth Amendment search and seizure violation. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Court has since recognized Bivens claims in only two other cases - a Fifth Amendment due process claim based on gender discrimination, and an Eighth Amendment cruel and unusual punishment claim for failure to provide a prisoner with adequate medical treatment. Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980), respectively. Apart from these three cases, the Supreme Court has consistently declined to extend Bivens to other constitutional contexts. Abbasi, 137 S.Ct. at 1855-57 (noting “[i]n cases decided after Bivens, and after the statutory implied cause-of-action cases that Bivens itself relied upon, the Court adopted a far more cautious course before finding implied causes of action.”).

         The Supreme Court recently reaffirmed and underscored its hesitation to extend Bivens. In Abbasi, the Court observed that it “has made clear that expanding the Bivens remedy is now a disfavored judicial activity.” Abbasi, 137 S.Ct. at 1857 (internal quotations omitted.) Using judicial power to create such a remedy, the Court said, is a “significant step under separation-of-powers principles.” Id. at 1856. The Court went so far as to suggest the three recognized Bivens cases may have resulted differently had they been decided today. Id. The Court said “[i]t is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others.” Id. at 1858.

         In determining whether to extend an implied cause of action under the Constitution, “separation-of-powers principles are or should be central to the analysis.” Id. at 1857. The analysis focuses on answering the question, “who should decide whether to provide for a damages remedy, Congress ...

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