Eyck v. United States, 4:19-CV-4007-LLP

Decision Date28 May 2020
Docket Number4:19-CV-4007-LLP
Citation463 F.Supp.3d 969
Parties Tom Ten EYCK and Michelle Ten Eyck, Guardians of Morgan Ten Eyck, Plaintiffs, v. UNITED STATES of America, Robert Neuenfeldt, individually and Unknown Supervisory Personnel of the United States, individually, Defendants.
CourtU.S. District Court — District of South Dakota

Michael S. Beardsley, Steven C. Beardsley, Beardsley, Jensen & Lee, Prof. L.L.C., Rapid City, SD, for Plaintiffs.

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

Robert J. Galbraith, John K. Nooney, Nooney & Solay, Rapid City, SD, Seth C. Pearman, Flandreau Santee Sioux Tribe, Flandreau, SD, for Defendant Robert Neuenfeldt.


Lawrence L. Piersol, United States District Judge

Pending before the Court is a Motion to Dismiss, Doc. 8, filed by defendant, Robert Neuenfeldt ("Neuenfeldt"). For the following reasons, Neuenfeldt's Motion to Dismiss is granted in part and denied in part.


On June 18, 2017, Micah Roemen ("Roemen") and Morgan Ten Eyck ("Ten Eyck") were passengers in a vehicle driven by Tahlen Bourassa ("Bourassa"). Doc. 1, ¶¶ 11-13. Plaintiffs, the guardians of Ten Eyck ("Plaintiffs"), are residents of Moody County, South Dakota. Doc. 1, ¶ 1. Neither Bourassa, Roemen, or Ten Eyck are Indians. Docs. 22-24.

Plaintiffs allege that in the early morning hours of June 18, 2017, Flandreau Tribal Police Officers, along with Moody County Deputy Sheriffs, the South Dakota Highway Patrol, and the City of Flandreau Police Department stopped a vehicle driven by Bourassa. Doc. 11, ¶ 13. Plaintiffs allege that defendant Neuenfeldt, Chief of Police for Flandreau Santee Sioux Tribe threatened to take Bourassa to jail and that Bourassa then fled in his vehicle accompanied by Roemen and Ten Eyck as passengers. Doc. 11, ¶ 14. The police report of the incident states that Neuenfeldt encountered Ten Eyck when assisting Moody County Sheriff's Deputies in conducting a security check on a non-tribally-owned, rural property near Dell Rapids, South Dakota. Doc. 24. The Sheriff's Deputies had encountered approximately 20 people having a party on the property without permission from the property owner and issued several citations for underage alcohol consumption. Doc. 24. The scene of the operative events was miles away from the Flandreau Santee Sioux Reservation.

Neuenfeldt and an uncertified deputy for Moody County Sheriff's Office initiated pursuit in Neuenfeldt's tribal police cruiser. Doc. 1, ¶ 15. The South Dakota Highway Patrol was also initially involved in the pursuit. Doc. 1, ¶ 16. It is alleged that "it is believed" that neither Bourassa, Roemen, nor Ten Eyck had committed any crimes to justify the pursuit. Doc. 1, ¶ 17. At the time Bourassa's vehicle was stopped, 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, ¶¶ 18, 19.

The pursuit took place over thirty minutes reaching speeds in excess of 100 miles per hour on gravel roads. Doc. 1, ¶ 20. On two occasions, spike strips were laid out without proper authorization. Doc. 1, ¶ 21. Plaintiffs allege that it is believed that Neuenfeldt disregarded orders to terminate the pursuit. Doc. 1, ¶ 25. Once the South Dakota Highway Patrol terminated pursuit, Neuenfeldt and his passenger, a deputy from the Moody County Sheriff's Office, continued the pursuit. Doc. 1, ¶ 26. Just prior to the accident, spike strips were laid out and a barricade of police cars forced Bourassa to take a take a dead-end gravel road. Doc. 1, ¶ 22. Plaintiffs allege that Defendants "knew the dead-end road would result in an accident." Doc. 1, ¶ 23. In the course of the pursuit, Bourassa lost control of his vehicle and rolled several times, throwing all three occupants from the vehicle. Doc. 1, ¶ 26. Ten Eyck was in a coma for weeks as a result of the accident, and sustained a serious traumatic brain injury, a broken femur, and a severe injury to her liver. Doc. 1, ¶ 28. As a result of the accident, Ten Eyck is completed incapacitated and Plaintiffs have sustained thousands of dollars in medical bills for their daughter's care. Doc. 1, ¶¶ 29-30.

On or about April 27, 2018, Plaintiffs submitted an Administrative Tort Claim in the amount of $150,000,000 to the United States Department of the Interior pursuant to 28 U.S.C. § 2675. Doc. 1, ¶ 7. On December 3, 2018, the United States Department of the Interior denied Plaintiffs’ administrative claim. Doc. 1, ¶ 8.

On January 14, 2019, Plaintiffs filed a Complaint against the United States of America; Robert Neuenfeldt, individually; and Unknown Supervisory Personnel of the United States, individually. Doc. 1. In their Complaint, he alleged claims for negligence against "Defendants"; a claim against Neuenfeldt under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; a common law assault and battery claim against Neuenfeldt; and a Bivens action against Unknown Supervisory Personnel of the United States. Doc. 1.

Plaintiffs allege that at all relevant times, the employees of the Police Department of the Tribe were performing functions pursuant to a Section 638 contract entered into with the United States Government which renders them employees of the United States Government. Doc. 1, ¶ 5. Plaintiffs also allege that at all relevant times, Neuenfeldt was acting as the Tribe's Chief of Police under color of state and federal law. Doc. 1, ¶ 6.

On March 12, 2019, Defendant Robert Neuenfeldt filed a motion to dismiss the claims against him. Doc. 8. Therein, Neuenfeldt argues that such claims 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. 9 at 7. 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"). 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 Plaintiffs, to suggest that Bivens provides Plaintiffs with a cause of action against employees of a tribal government.

On March 18, 2019, the United States Attorney filed a Certification of Scope of Employment pursuant to 28 C.F.R. § 15.4, Doc. 12, certifying that Officer Neuenfeldt was an employee of the federal government and was acting within the scope of his office or employment at the time of the alleged conduct with respect to Counts I and III of the complaint alleging negligence and common law assault and battery. The Certification further states that Officer Neuenfeldt was not acting within the scope of his employment with respect to Counts II and IV of the complaint alleging Bivens claims against Neuenfeldt and Unknown Supervisory Personnel of the United States for alleged violations of his Constitutional rights. The United States Attorney states in its certification that constitutional tort claims such as those alleged in Counts II and IV are not cognizable under the FTCA, and that the United States and its agencies are not proper Bivens defendants due to sovereign immunity. Doc. 12 at 5, n.2 (citing Washington v. Drug Enforcement Admin. , 183 F.3d 868, 874 (8th Cir. 1999) and Schutterle v. United States , 74 F.3d 846, 848 (8th Cir. 1996) ).


Neuenfeldt has moved to dismiss Plaintiffs’ claims against him for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

Rule 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

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