United States District Court, D. Montana, Billings Division
EARLINE COLE, CLETUS COLE, and PRECIOUS BEARCRANE, a minor child, Plaintiffs,
FEDERAL BUREAU OF INVESTIGATION, Salt Lake City, Utah Office; FEDERAL BUREAU OF INVESTIGATION, Billings, Montana Office; and MATTHEW ORAVEC, in his individual capacity, Defendants.
ORDER AND FINDINGS AND RECOMMENDATION OF U.S.
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
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.)
before this Court is Defendant Oravec's Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(6). (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.
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.)
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.)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.
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.)
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.)
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.)
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.)
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.
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.
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
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.
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.
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)).
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.
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).
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.
Bivens Cause of Action
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.”).
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.
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 ...