Dry, McConnell, Burlison v. U S et al.

• Decision Date: 19 December 2000
• Docket Number: No. 99-7110,99-7110
• Citation: 235 F.3d 1249
• Parties: (10th Cir. 2000) DOUGLAS G. DRY; JUANITA MCCONNELL; ROSIE BURLISON, Plaintiffs - Appellants, v. UNITED STATES OF AMERICA; BRUCE BABBITT, in his official capacity as Secretary of Interior; ADA E. DEERE, in her official capacity as Assistant Secretary of Interior for Indian Affairs; JIM FIELDS, in his official capacity as the successor Muskogee Area BIA Director; PERRY PROCTOR, in his official and individual capacities; DENNIS SPRINGWATER, in his official and individual capacities; KAREN KETCHER, in her official and individual capacities; CURTIS D. WILSON, in his official capacity as the BIA Contracts Officer; LARRY MINGS, in his official and individual capacities; BOB RABON, in his official and individual capacities; ROBERT L. RABON, in his official and individual capacities, KIM REED, in her official and individual capacities; HOPPY DENISON, in his official and individual capacities; BILL BARROW in his official and individual capacities; MIKE RUSSELL, in his official and individual capacities; STEPHEN FLOWERS, in his official and individual capacities; CHRIS WELCH, in his official and individual capacities; KENNETH JOHNSON, in his official and individual capacities; BLAKE JOHNICO, in his official and individual capacities; CITY OF TALIHINA; JACK ENGLAND, in his official and individual capacities; MALCOMB WADE, in his official and individual capacities; NIKY HIBDON, in her official and individual capacities; LLOYD JAMES, in his official and individual capacities; JOHN WHEAT, in his official and individual capacities; NAOMI O'DANIELS, in her official and individual capacity; CITY OF CLAYTON; TERRY BELL, in his official and individual capacities; ROWLAND HALL, in his official and individual capacities; MIKE VAN HORN, in his official and individual capacities; REBECCA JOHNSON, in her official and individual capacities; DARREL KIRKES, in his official and individual capacities; JIMMY LONG, in his official and individual capacities, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

235 F.3d 1249 (10th Cir. 2000)

DOUGLAS G. DRY; JUANITA MCCONNELL; ROSIE BURLISON, Plaintiffs - Appellants, v. UNITED STATES OF AMERICA; BRUCE BABBITT, in his official capacity as Secretary of Interior; ADA E. DEERE, in her official capacity as Assistant Secretary of Interior for Indian Affairs; JIM FIELDS, in his official capacity as the successor Muskogee Area BIA Director; PERRY PROCTOR, in his official and individual capacities; DENNIS SPRINGWATER, in his official and individual capacities; KAREN KETCHER, in her official and individual capacities; CURTIS D. WILSON, in his official capacity as the BIA Contracts Officer; LARRY MINGS, in his official and individual capacities; BOB RABON, in his official and individual capacities; ROBERT L. RABON, in his official and individual capacities, KIM REED, in her official and individual capacities; HOPPY DENISON, in his official and individual capacities; BILL BARROW in his official and individual capacities; MIKE RUSSELL, in his official and individual capacities; STEPHEN FLOWERS, in his official and individual capacities; CHRIS WELCH, in his official and individual capacities; KENNETH JOHNSON, in his official and individual capacities; BLAKE JOHNICO, in his official and individual capacities; CITY OF TALIHINA; JACK ENGLAND, in his official and individual capacities; MALCOMB WADE, in his official and individual capacities; NIKY HIBDON, in her official and individual capacities; LLOYD JAMES, in his official and individual capacities; JOHN WHEAT, in his official and individual capacities; NAOMI O'DANIELS, in her official and individual capacity; CITY OF CLAYTON; TERRY BELL, in his official and individual capacities; ROWLAND HALL, in his official and individual capacities; MIKE VAN HORN, in his official and individual capacities; REBECCA JOHNSON, in her official and individual capacities; DARREL KIRKES, in his official and individual capacities; JIMMY LONG, in his official and individual capacities, Defendants - Appellees.

No. 99-7110

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 19, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. (D.C. No. 97-CV-113-B)

[Copyrighted Material Omitted] Douglas G. Dry, Wilburton, Oklahoma (Scott Kayla Morrison, Clayton, Oklahoma, on the brief), for the Plaintiffs - Appellants.

Peter Bernhardt, Office of the United States Attorney, Tulsa, Oklahoma, for Defendants - Appellees United States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis D. Wilson and Larry Mings.

Eric D. Janzen (Charles D. Neal, Jr., with him on the briefs), Steidley & Neal, McAlester, Oklahoma, for Defendants - Appellees City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels, and for Defendants - Appellees City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long.

Steven P. Shreder (W.G. "Gil" Steidley, Jr., on the brief), Steidley & Neal, McAlester, Oklahoma, for Defendants - Appellees Bob Rabon, Robert L. Rabon, Kim Reed, Hoppy Denison, Bill Barrow, Mike Russell, Steven Flowers, Chris Welch, Kenneth Johnson and Blake Johnico.

Before BRORBY, MCKAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiffs-Appellants Douglas G. Dry, Juanita McConnell, and Rosie Burlison appeal from the district court's orders dismissing their claims against the federal and tribal defendants, and from the orders granting summary judgment to the City of Talihina and City of Clayton defendants. Our jurisdiction arises under 28 U.S.C. 1291 and we affirm.

Background

Plaintiffs Douglas G. Dry, Juanita McConnell, and Rosie Burlison are members of the Choctaw Nation ("the Nation" or "the Tribe"). During the Labor Day Festival on tribal grounds in 1995, tribal police officers arrested Plaintiffs while they were distributing literature. Dry was transported to the City of Talihina; McConnell and Burlison were transported to the City of Clayton. All three were detained for two to three hours, after which they were brought back to Tuskahoma and charged in the Choctaw Court of Indian Offenses. Each plaintiff was charged with a number of crimes in the nature of disturbance of the peace and interfering with a police officer or resisting arrest.

Thereafter, Plaintiffs filed this lawsuit in United States District Court for the Eastern District of Oklahoma to recover compensatory and punitive damages, attorneys' fees, and costs. They asserted causes of action under the United States Constitution, the Federal Tort Claims Act ("FTCA"), 42 U.S.C. 1983 (" 1983"), the Oklahoma Governmental Torts Claims Act, and three nineteenth-century treaties between the Choctaw Nation and the United States. As defendants, Plaintiffs named: (1) the United States, the Secretary of Interior, the director of the Bureau of Indian Affairs ("BIA"), and six other BIA officials (collectively, "the federal defendants") (2) the Tribe's general counsel, prosecutor, and director of law enforcement, as well as seven other tribal law enforcement personnel (collectively, "the tribal defendants"); and (3) the City of Talihina, the City of Clayton, both mayors, both jailers/police chiefs, and several other city officials, including the members of both city councils (collectively, "the city defendants"). In various orders, the district court dismissed all claims against the federal and tribal defendants and granted summary judgment for the city defendants. This appeal followed. We examine the claims against each set of defendants in turn.

Discussion

I. Claims Against the Tribal Defendants

Plaintiffs' amended complaint asserts the same three claims against various subsets of tribal defendants, all of whom were sued in their official and individual capacities. Plaintiffs' first two claims are constitutional; the third invokes the FTCA. The first claim alleges that certain named tribal defendants violated the plaintiffs' First and Fifth Amendment rights to freedom of speech, freedom of assembly, due process, and equal protection. 1 Aplt. App. 95, 57 (Dry); id. at 109, 104 (McConnell); id. at 119, 134 (Burlison). The second claim asserts that certain tribal defendants deprived Plaintiffs of their "liberty without due process of law and deprived [them] of equal protection of the laws, in violation of the 4th and 5th Amendments of the Constitution of the United States." Id. at 96-97, 63-64 (Dry); see also id. at 111, 110-11 (McConnell) (also alleging a violation of Plaintiff's Fourteenth Amendment rights); id. at 120-21, 140-41 (Burlison) (same). Third, the complaint alleges that certain tribal defendants "deliberately, intentionally and maliciously" committed several intentional torts against Plaintiffs, and seeks compensation under the FTCA. Id. at 101, 74-75 (Dry); id. at 116, 121-22 (McConnell); id. at 125, 151-52 (Burlison).

Upon a notice of substitution filed by the United States, the district court dismissed the FTCA claims against all but two tribal defendants and substituted the United States as party defendant. Fed. Aplee. Supp. App. at 5; see 28 U.S.C. 2679(d)(1). Appellants' all-inclusive Notice of Appeal designates not only the district court's orders dated August 16, 1999, and September 30, 1998, but also "all other orders of dismissal, prior orders and rulings." 3 Aplt. App. 658. Plaintiffs, however, have failed to brief the propriety of the substitution, and we therefore deem their appeal of this issue to have been abandoned. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997).

In seven orders issued on September 30, 1998, the district court dismissed all remaining claims against the tribal defendants for failure to state a claim or for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(6), (b)(1). We review such dismissals de novo, applying the same standard used by the district court. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (failure to state a claim); Sac & Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1165 (10th Cir. 1999), cert. denied, 120 S. Ct. 2657 (2000) (lack of jurisdiction). We will affirm a 12(b)(6) dismissal "when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In conducting our analysis, we are obligated to "accept as true all the factual allegations in the complaint, construe them in a light most favorable to the plaintiff, and resolve all reasonable inferences in plaintiff's favor." Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996).

Our review of a dismissal under Rule 12(b)(1) depends on whether the motion was granted on factual or legal grounds. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In the first category, the movant challenges the "facts upon which subject matter jurisdiction depends." Id. at 1003. To resolve such a dispute, "[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing . . . ." Id. In the present case, the district court considered legal arguments not contained in the complaint, but did not rely on any evidentiary materials. We therefore review the 12(b)(1) dismissals under the same standard applicable to the dismissals under 12(b)(6), see Seamons, 84 F.3d at 1231-32, accepting all factual allegations as true and according the plaintiffs the benefit of all reasonable inferences to be drawn therefrom. Holt, 46 F.3d at 1002-03.

On appeal, Plaintiffs urge us to accept the following five contentions. First, that "the Choctaw Nation is exercising contracted federal criminal jurisdiction because the Choctaw citizens did not grant criminal jurisdiction to the tribal government under the 1983 Choctaw Constitution." Aplt. Br. at 6. Second, that "officers acting under federal contracted...