United States District Court, D. Montana, Billings Division
L.B., individually and on behalf of D.B. a minor, Plaintiffs,
UNITED STATES OF AMERICA, BUREAU OF INDIAN AFFAIRS, and DANA BULLCOMING, an agent of the Bureau of Indian Affairs sued in his individual capacity, Defendants.
P. Watters United States District Court Judge
the Court are United States Magistrate Judge Timothy
Cavan's findings and recommendations filed July 16, 2019.
(Doc. 60). Judge Cavan recommends this Court deny
Plaintiffs' motion for summary judgment (Doc. 23) and
grant Defendant United States of America's cross motion
for summary judgment. (Doc. 34).
Standard of review
filed timely objections to the findings and recommendations.
(Doc. 62). Plaintiffs are entitled to de novo review of those
portions of Judge Cavan's findings and recommendations to
which they properly object. 28 U.S.C. § 636(b)(1);
do not object to Judge Cavan's background section. Judge
Cavan's background section is adopted in full.
summarize, in 2015, Bureau of Indian Affairs Officer Dana
Bullcoming coerced L.B. into having sex while she was
intoxicated under threat of legal ramifications if she did
not do so due to her being intoxicated in the presence of her
children. As a result of the sex, L.B. was impregnated and
subsequently gave birth to D.B. In 2017, Officer Bullcoming
was convicted in federal court for deprivation of rights
under color of law, in violation of 18 U.S.C. § 242.
Plaintiffs brought this action against the United States and
Officer Bullcoming pursuant to the Federal Tort Claims Act
and 42 U.S.C. § 1983. Plaintiffs filed a motion for
summary judgment on the FTCA claim. The United States
responded with a cross motion for summary judgment on the
Cavan recommended the Court deny Plaintiffs' motion for
summary judgment and grant the United States' motion for
summary judgment because, in Judge Cavan's view, Officer
Bullcoming was not acting within the scope of his employment,
a jurisdictional prerequisite to an FTCA claim.
make two objections to Judge Cavan's recommendation.
First, Plaintiffs argue Judge Cavan misapplied Millbrook
v. United States, 569 U.S. 50, 52 (2013). Second,
Plaintiffs argue Judge Cavan misapplied current Montana law
and request in the alternative that the Court certify the
issue to the Montana Supreme Court.
argue under Millbrook, a law enforcement
officer's intentional tort must only "arise"
within the scope of employment as opposed to the intentional
tort itself being within the scope of employment. The Court
acknowledges the Supreme Court's phrasing of its
conclusion was slightly clumsy, but the opinion clarifies any
confusion. The Supreme Court twice stated the act or omission
giving rise to the claim must be "within the scope of
his office or employment." Millbrook, 569 U.S.
at 55. Plaintiffs fail to cite any court which has
interpreted Millbrook to require something other
than the tort must be committed "within the scope of
[the employee's] office or employment."
Plaintiffs' first objection is overruled.
Current Montana law
argue current Montana law imposes vicarious liability on an
employer when ...