Bruette v. Knope, Civ. A. No. 81-C-1271.

• Decision Date: 07 January 1983
• Docket Number: Civ. A. No. 81-C-1271.
• Citation: 554 F. Supp. 301
• Parties: Arthur J. BRUETTE and Ronald Wayka, Plaintiffs, v. James KNOPE, individually and in his capacity as Shawano County Sheriff; George Johnson, individually and in his capacity as a Shawano County Deputy Sheriff; James Tourtillott, individually and in his capacity as Menominee County Sheriff; Clyde Delabrue, individually and in his capacity as a Menominee County Deputy Sheriff; Lloyd Heinz, individually and in his capacity as Shawano County Chief Deputy Sheriff; Larry A. Roth, individually and in his capacity as a Shawano County Deputy Sheriff; the Menominee County Sheriff's Department, Menominee County, the Shawano County Sheriff's Department, Shawano County, and several unknown law enforcement officers of the Shawano County Sheriff's Department, the Menominee County, Sheriff's Department and the Menominee Indian Reservation Tribal Police Department, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

554 F. Supp. 301

Arthur J. BRUETTE and Ronald Wayka, Plaintiffs, v. James KNOPE, individually and in his capacity as Shawano County Sheriff; George Johnson, individually and in his capacity as a Shawano County Deputy Sheriff; James Tourtillott, individually and in his capacity as Menominee County Sheriff; Clyde Delabrue, individually and in his capacity as a Menominee County Deputy Sheriff; Lloyd Heinz, individually and in his capacity as Shawano County Chief Deputy Sheriff; Larry A. Roth, individually and in his capacity as a Shawano County Deputy Sheriff; the Menominee County Sheriff's Department, Menominee County, the Shawano County Sheriff's Department, Shawano County, and several unknown law enforcement officers of the Shawano County Sheriff's Department, the Menominee County, Sheriff's Department and the Menominee Indian Reservation Tribal Police Department, individually and in their official capacities, Defendants.

Civ. A. No. 81-C-1271.

United States District Court, E.D. Wisconsin.

January 7, 1983.

Thomas L. Shriner, Milwaukee, Wis., for plaintiffs.

Rita Keshena, Keshena, Wis., for defendants Fish, Herrera, Snow, Waukau, Frechette, Weso and Davidson.

William W. Ehrke, Milwaukee, Wis., for defendants Knope, Johnson, Heinz, Roth, Shawano County Sheriff's Dept. and Shawano County.

John M. Moore, Madison, Wis., and Gary Bruno, Asst. Dist. Atty., Shawano, Wis., for defendants Tourtillott, Delabrue, Menominee County and Menominee County Sheriff's Dept.

DECISION AND ORDER

REYNOLDS, Chief Judge.

In this action, the plaintiffs, members of the Menominee Indian Tribe, have brought suit against seventeen county and tribal officials, individually and in their official capacities, alleging ten causes of action arising from a car chase, crash, and subsequent arrest. Each of the seventeen defendants has moved to dismiss the amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). On motions to dismiss for failure to state a claim, the well-pleaded material allegations of the amended complaint are taken as admitted and comprise the facts on which the motions are to be decided.

On September 3, 1981, Marvin Wayka, not a party to this action, locked the plaintiffs in the camper section of a pickup truck without the plaintiffs knowing of it and proceeded to drive the truck away with the plaintiffs held captive therein. The truck proceeded to state highway 47-55 and became involved in a high-speed chase through Shawano County, the Menominee Indian Reservation, and Menominee County, with law enforcement officers from the two counties and the Menominee Tribe in pursuit. During the chase, some of the defendants fired shots into the truck's camper section where the plaintiffs were known to be. The driver, however, refused to stop.

The chase finally ended when the truck struck a Shawano County squad car and a Stockbridge-Munsee Indian Reservation police squad car at the corner of County Highways G and VV, northeast of Gresham. When the vehicle had stopped, some of the defendants broke open the padlocked door to the camper, threw the plaintiffs to the ground, and beat them. Other defendants who had been involved in the chase observed the beatings, but failed to intervene to assist the plaintiffs. The plaintiffs were handcuffed, arrested, and placed in the Shawano County Jail. They were later released with no charges being filed against them.

In the instant action, the plaintiffs seek damages for the acts of September 3, 1981, and injunctive relief against an alleged pattern of unlawful conduct which threatens future violations of the plaintiffs' civil rights. The case is brought pursuant to the Fourth, Fifth, Ninth, and Fourteenth Amendments as well as three federal statutes: 42 U.S.C. Secs. 1983, 1985, and 25 U.S.C. Sec. 1302. The plaintiffs allege federal jurisdiction under 28 U.S.C. Secs. 1331, 1343.

The defendants are in three groups, with each group having filed a motion to dismiss. The defendants belonging to the Menominee Indian Tribe include: Kenneth Fish, tribal police chief; Richard Herrera, Douglas Snow, and Mark Waukau, tribal policemen; Barbara Frechette, Chairman of the Menominee Tribal Law and Order Committee; and Gerald Weso and Glenn Davidson, present and past tribal prosecutors, respectively. Second, the plaintiffs have sued the Shawano County Sheriff's Department; Shawano County; James Knope, Sheriff of Shawano County; Lloyd Heinz, Chief Deputy Sheriff of Shawano County; and Larry A. Roth and George Johnson, Shawano County Deputy Sheriffs. Finally, in addition to the tribal and Shawano County officials, the plaintiffs have sued the following Menominee County officials and entities: Menominee County; the Menominee County Sheriff's Department; James Tourtillott, Sheriff of Menominee County; and Clyde Delabrue, Menominee County Deputy Sheriff. Defendant Daniel R. Mauel, a City of Shawano policeman, was named originally but subsequently dismissed by stipulation on July 22, 1982.

I. DEFENDANTS SNOW, HERRERA, JOHNSON, AND DELABRUE

The plaintiffs allege in counts one and two that defendants Snow, Herrera, Johnson, and Delabrue broke open the camper door and proceeded to beat, choke, and kick the plaintiffs in an excessive use of force which infringed their civil rights. Count three apparently asserts that all of the defendants, collectively, arrested the plaintiffs without probable cause, in violation of their civil rights. Defendant Johnson has been sued individually and in his dual capacities as a Shawano County Deputy Sheriff and Menominee Tribal Policeman. Defendant Delabrue has been sued individually and as Menominee County Deputy Sheriff. Insofar as they have not moved to dismiss the complaint as it relates to them (namely, counts two and three dealing with the beating and arrest of the plaintiffs), Johnson and Delabrue shall remain in the case.

Defendants Snow and Herrera, however, have moved to dismiss under Rule 12(b)(6) for failure to state a claim and under Rule 12(b)(1) for failure to raise a substantial federal question. Snow and Herrera have been sued both as individuals and as tribal officers. Because it is clear that the plaintiffs are entitled to no relief under any state of facts which they could prove, their amended complaint must be dismissed as to defendants Snow and Herrera for failure to state a claim upon which relief can be granted.

The constitutional claims asserted by the plaintiffs under the Fourth, Fifth, Ninth, and Fourteenth Amendments state a claim against Snow and Herrera neither as individuals nor as tribal officials. Framed as limitations upon federal or state authority, those amendments do not constrain Indian tribes, which are regarded as separate sovereigns pre-existing the Constitution. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978).

Similarly, the amended complaint herein fails to state a claim under any of the three federal statutes alleged. The common law immunity from suit enjoyed by Indian tribes extends to Snow and Herrera as tribal policemen and effectively shields them in their official capacities from actions, either for injunctive or for monetary relief, brought pursuant to 42 U.S.C. Secs. 1983, 1985 and 25 U.S.C. Sec. 1302.^* See Santa Clara Pueblo v. Martinez, 436 U.S. at 59-72, 98 S.Ct. at 1677-1684; Means v. Wilson, 522 F.2d 833, 838 (8th Cir.1975); Wilson v. Turtle Mountain Band of Chippewa Indians, 459 F.Supp. 366, 367-69 (D.N.D. 1978).

Moreover, 25 U.S.C. Sec. 1302, the Indian Civil Rights Act, provides rights only against the tribe and governmental subdivisions thereof and not against tribe members acting in their individual capacities. Means v. Wilson, 522 F.2d at 841. Snow and Herrera thus may not be sued as individuals under that statute. Nor does the amended complaint state a claim under 42 U.S.C. Sec. 1983. The acts of Snow and Herrera on September 3, 1981, although performed with the assistance of deputy sheriffs of Shawano and Menominee Counties, are not imbued with the requisite state action. There are no allegations that the county authorities requested the tribal assistance, that such assistance had ever occurred before, or that the tribe and the state have a long-standing agreement to offer assistance through customary procedures. Indeed, there is no claim that Snow and Herrera were delegated police powers by the state rather than by the tribe, or that they were attempting to enforce state rather than tribal law. The action against them as individuals under 42 U.S.C. Sec. 1983 does not state a claim.

Finally, the complaint must be dismissed as to Snow and Herrera because it fails to state a cause of action against them as individuals under 42 U.S.C. Sec. 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1797, 29 L.Ed.2d 338 (1971), held that, to state a claim under Sec. 1985(3), a complaint must allege, inter alia, "some racial, or, perhaps otherwise class-based invidiously discriminatory animus" behind the purported conspiracy. In this case, the plaintiffs can make no meritorious claim to any class-based discrimination. Both defendants Snow and Herrera as well as the plaintiffs belong to the Menominee Tribe, and the plaintiffs can allege no other class membership which could have been the subject of invidious discrimination. See Shortbull v. Looking Elk, 677 F.2d 645, 648-50 (8th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 211, 74 L.Ed.2d 168 (1982). The motion of defendants Snow and Herrera to dismiss is granted.

II. DEFENDANTS HEINZ, ROTH, AND WAUKAU

In count four of the complaint, the plaintiffs allege that their civil rights were violated when defendants Heinz, Roth, and Waukau failed to intervene to stop the unlawful beatings and arrest of the plaintiffs contrary to their duty to enforce the law. Because defendant Waukau was acting as a tribal policeman on September 3, 1981, just as Snow and Herrera were, the...