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L.B. v. United States

United States District Court, D. Montana, Billings Division

August 27, 2019

L.B., individually and on behalf of D.B. a minor, Plaintiffs,
v.
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.

          ORDER

          Susan P. Watters United States District Court Judge

         Before 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).

         I. Standard of review

         Plaintiffs 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); Fed.R.Civ.P. 72(b)(3).

         II. Background

         Plaintiffs do not object to Judge Cavan's background section. Judge Cavan's background section is adopted in full.

         To 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 FTCA claim.

         Judge 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.

         III. Discussion

         Plaintiffs 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.

         A. Millbrook

         Plaintiffs 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.

         B. Current Montana law

         Plaintiffs argue current Montana law imposes vicarious liability on an employer when ...


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