Bourassa v. United States

• Decision Date: 24 January 2022
• Docket Number: 4:20-CV-4210-LLP
• Parties: Verna BOURASSA, Guardian of Tahlen Aaron Bourassa, Plaintiff, v. UNITED STATES of America, Robert Neuenfeldt, individually and Unknown Supervisory Personnel of the United States, individually, Defendants.
• Court: U.S. District Court — District of South Dakota

581 F.Supp.3d 1188

Verna BOURASSA, Guardian of Tahlen Aaron Bourassa, Plaintiff,

v.UNITED STATES of America, Robert Neuenfeldt, individually and Unknown Supervisory Personnel of the United States, individually, Defendants.

4:20-CV-4210-LLP

United States District Court, D. South Dakota, Southern Division.

Signed January 24, 2022

Jeffrey R. Beck, Beck Law, Prof. LLC, Sioux Falls, SD, for Plaintiff.

Meghan K. Roche, U.S. Attorney's Office, Sioux Falls, SD, for Defendant United States of America.

Robert J. Galbraith, Nooney & Solay, Rapid City, SD, for Defendant Robert Neuenfeldt.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Lawrence L. Piersol, United States District Judge

Pending before the Court is Defendant, Robert Neuenfeldt's ("Neuenfeldt"), Motion to Dismiss. (Doc. 9). For the following reasons, Neuenfeldt's Motion to Dismiss is granted as to Plaintiff's Bivens claim and denied as to Plaintiff's negligence claim.

BACKGROUND

The following facts are a summary of the allegations in the Complaint filed by Plaintiff, Verna Bourassa, Guardian of Tahlen Aaron Bourassa ("Bourassa"). On June 18, 2017, Bourassa was driving a vehicle in the early morning hours on a rural road with two passengers, Michael Roemen ("Roemen") and Morgan Ten Eyck ("Ten Eyck"). (Doc. 1, ¶ 11). The Court takes judicial notice of the fact that neither Tahlen Bourassa, Roemen, nor Ten Eyck are Indians or members of the Flandreau Santee Sioux Tribe. Roemen v. United States , Civ. No. 19-4006 at Docket 27 (D.S.D. Apr. 13, 2020). Bourassa stopped his vehicle near a rural residence located at 24364 484^th Avenue, Dell Rapids, South Dakota, which is located in Moody County, South Dakota, outside the reservation and jurisdiction of the Flandreau Santee Sioux Tribe ("the Tribe"). (Doc. 1, ¶ 12).

Near the driveway of the rural residence, it is alleged that Neuenfeldt, Chief of Police for Flandreau Santee Sioux Tribe, contacted Bourassa and threatened to take him to jail. (Doc. 1, ¶ 13). Bourassa drove away and was pursued by Neuenfeldt and Logan Baldini, an uncertified deputy for the Moody County Sheriff's Office in Neuenfeldt's police cruiser. (Doc. 1, ¶ 13). Sargent Kurtz of the South Dakota Highway Patrol, was also initially involved in the pursuit. (Doc. 1, ¶ 14).

Plaintiff alleges that it is believed that neither Bourassa, Roemen, nor Ten Eyck had committed any crimes to justify the pursuit. (Doc. 1, ¶ 15). At the time Bourassa's vehicle was stopped, Plaintiff alleges that Neuenfeldt and the other officers on the scene knew the identity of the driver, Bourassa, and knew that he was actively being monitored by the South Dakota Parole Board through a GPS ankle bracelet. (Doc. 1, ¶¶ 16-17).

A high-speed pursuit of Bourassa's vehicle took place over thirty minutes reaching speeds in excess of 100 miles per hour on gravel roads. (Doc. 1, ¶ 18). The entire pursuit was located outside the Tribe's reservation boundaries. (Doc. 1, ¶ 25). On two occasions, spike strips were laid out without proper authorization. (Doc. 1, ¶ 19). Just prior to the accident, spike strips were laid out and a barricade of police cars forced Bourassa to take a dead-end gravel road. (Doc. 1, ¶ 20). Plaintiff alleges that Defendants "knew the dead-end road would result in an accident." (Doc. 1, ¶ 21). Plaintiff alleges that the South Dakota Highway Patrol aborted the pursuit and that it is believed that Neuenfeldt disregarded orders to terminate the pursuit. (Doc. 1, ¶ 22-23). Once the South Dakota Highway Patrol terminated pursuit, Neuenfeldt and Baldini continued the pursuit causing Bourassa's vehicle to lose control and roll several times throwing all three occupants from the vehicle. (Doc. 1, ¶ 24). As a result of the accident, all occupants suffered incapacitating injuries and were air lifted from the scene. (Doc. 1, ¶ 26). Bourassa suffered serious traumatic brain injury

as a result of the accident, has sustained thousands of dollars in medical bills, and continues to undergo therapy for the permanent injuries he suffered in the accident. (Doc. 1, ¶¶ 26-29).

Plaintiff alleges that at all relevant times, the United States, by and through its Department of the Interior, Bureau of Indian Affairs, contracted with the Flandreau Santee Sioux Tribe and its Police Department pursuant to 25 U.S.C. § 5321, Indian Self Determination Act, to provide law enforcement services on the Flandreau Santee Sioux Indian Reservation. (Docs. 1, ¶ 4; 8, ¶ 4).

On or about June 11, 2019, Plaintiff submitted an Administrative Tort Claim in the amount of $5,012,884.20 to the United States Department of the Interior pursuant to 28 U.S.C. § 2675. (Doc. 1, ¶ 7). On July 8, 2019, the United States Department of the Interior denied Plaintiff's administrative claim. (Doc. 1, ¶ 8).

On December 30, 2020, Plaintiff filed a Complaint against the United States of America; Robert Neuenfeldt, individually; and Unknown Supervisory Personnel of the United States, individually. (Doc. 1). In his Complaint, he alleged claims of negligence against Defendants; a claim against Neuenfeldt under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 397 (1971) ; and a Bivens claim against Unknown Supervisory Personnel of the United States. (Doc. 1).

On April 26, 2021, Defendant Robert Neuenfeldt filed a Motion to Dismiss the claims against him. (Doc. 9). In support of his motion, Neuenfeldt argues that the claims against him are barred by tribal sovereign immunity because the Complaint alleges that Neuenfeldt was acting as the Tribe's Chief of Police when he allegedly engaged in such conduct. (Doc. 10 at 52-56). To the extent the Court considers Neuenfeldt to be a federal employee¹ for purposes of the negligence claim alleged against him in Count I of the Complaint, Neuenfeldt argues that the United States is the proper party under the Federal Tort Claims Act ("FTCA"). (Doc. 10 at 56-58). With regard to the Bivens claim alleged against him in Count II of the Complaint, Neuenfeldt argues that there is nothing within Bivens , or any other authority relied upon by Plaintiff, to suggest that Bivens provides Plaintiff with a cause of action against employees of a tribal government. (Doc. 10 at 58-61). Neuenfeldt also contends that Plaintiff's Bivens claim is barred by the statute of limitations. (Doc. 10 at 62-64). Neuenfeldt moves to dismiss Count III of Plaintiff's Complaint alleging a Bivens claim against Unknown Supervisory Personnel because there are no allegations related to any supervisory conduct, policy, custom, or control of others related to Neuenfeldt. (Doc. 10 at 62).

The Motion to Dismiss has been fully briefed by the parties and is ready for disposition.

STANDARD OF REVIEW

12(b)(1) Standard

Neuenfeldt argues that this court lacks subject matter jurisdiction over the claims against him because tribal sovereign immunity extends to his actions. The assertion of tribal "[s]overeign immunity is a jurisdictional question" which should be considered irrespective of the merits. Rupp v. Omaha Indian Tribe , 45 F.3d 1241, 1244 (8th Cir. 1995) ; see also Pan Am. Co. v. Sycuan Band of Mission Indians , 884 F.2d 416, 418 (9th Cir. 1989). If Neuenfeldt "possess[es] sovereign immunity, then [this court has] no jurisdiction to hear [plaintiff's claims against him]." See Rupp , 45 F.3d at 1244.

Rule 12 provides in part that "a party may assert the following defenses by motion: ... lack of subject-matter jurisdiction ...." Fed. R. Civ. P. 12(b)(1). When moving to dismiss under Rule 12(b)(1), a party "may assert either a ‘facial’ or ‘factual’ attack on jurisdiction." Moss v. United States , 895 F.3d 1091, 1097 (8th Cir. 2018). A facial attack on jurisdiction "is based on the complaint alone or on undisputed facts in the record." Harris v. P.A.M. Transp., Inc. , 339 F.3d 635, 637 (8th Cir. 2003). In a facial attack, the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). Carlsen v. GameStop, Inc. , 833 F.3d 903, 908 (8th Cir. 2016). In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards. Id. Considering "matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1)" does not "convert the 12(b)(1) motion to one for summary judgment." Harris , 339 F.3d at 637 n.4.

Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Osborn v. United States , 918 F.2d 724, 730 (8th Cir. 1990). Plaintiff, as the party invoking jurisdiction, bears the burden to establish it. See Green Acres Enters., Inc. v. United States , 418 F.3d 852, 856 (8th Cir. 2005).

12(b)(6) Standard

"To survive a 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 v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "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." Ash v. Anderson Merchs., LLC , 799 F.3d 957, 960 (8th Cir. 2015). A court assessing such a motion must accept all factual allegations in the complaint as true and draw all inferences in favor of the nonmovant. Blankenship v. USA Truck, Inc. , 601...