L. B. v. United States

• Docket Number: CV 18-74-BLG-SPW
• Decision Date: 08 August 2023
• Parties: L.B., Plaintiff, 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.
• Court: U.S. District Court — District of Montana

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L.B., Plaintiff, 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.

No. CV 18-74-BLG-SPW

United States District Court, D. Montana, Billings Division

August 8, 2023

ORDER

SUSAN P. WATTERS, United States District Judge

Before the Court are the parties' competing motions for summary judgment. Plaintiff L.B. asserts that summary judgment in her favor is appropriate because the undisputed facts demonstrate that Defendant Bullcoming was acting in the course and scope of his employment when he violated L.B.'s civil rights. The United States argues that summary judgment in its favor is warranted because the undisputed facts show that Bullcoming was not acting in the course and scope of his employment when he assaulted L.B. The Court held a hearing on the motions on May 12, 2023. For the following reasons, the Court grants summary judgment in favor of the United States denies L.B.'s motion for summary judgment, and denies the remaining motions as moot.

I. Background

A. Factual Background

On October 31, 2015, BIA-OJS officer Dana Bullcoming was on-duty, patrolling the Northern Cheyenne Indian Reservation. (Doc. 139 at ¶ 1). BIA-OJS dispatch received a call from L.B., who was reporting her mother for driving home after the pair had been drinking together. (Doc. 139 at ¶ 2). Bullcoming found L.B.'s mother at an apartment, confirmed she was not driving, and then drove to L.B.'s residence. (Doc. 139 at ¶ 4). Bullcoming spoke with L.B. and told her that he might have to call social services and take L.B. in for child endangerment because of her intoxication around her children. (Doc. 139 at ¶ 6). L.B. told Bullcoming that she did not want to go to jail or lose her job. (Doc. 139 at ¶ 7). L.B. told Bullcoming that her children were back in their rooms. The two walked to Bullcoming's patrol car, where Bullcoming administered a breathalyzer test to L.B, which confirmed her intoxication. (Doc. 139 at ¶¶ 8-9).

Bullcoming told L.B., “Something needs to be done about this,” and she responded, “Like what do you mean? Like sex?” Bullcoming responded, “Yes.” (Doc. 139 at ¶ 10). L.B. and Bullcoming then had unprotected sex. (Doc. 139 at ¶ 11). As Bullcoming left, L.B. asked him if he was working the next night and told him he “should stop by again.” (Doc. 139 at ¶ 11). L.B. became pregnant from the encounter and had a child. (Doc. 139 at ¶ 12). The United States prosecuted Bullcoming for Deprivation of Rights Under Color of Law, 18 U.S.C. § 242 and secured a guilty plea and conviction for that offense. (Doc. 139 at ¶ 13).

B. Procedural History

This Court, on Findings and Recommendations from Judge Cavan, ruled that Officer Bullcoming's sexual assault of L.B. fell outside the scope of his employment as a BIA police officer and was consequently outside the Federal Tort Claims Act's (“FTCA”) limited waiver of sovereign immunity. Judge Cavan found that:

Application of the furtherance test and the Maguire decision to this case leads to the conclusion that Bullcoming was not acting within the scope of his employment under Montana law. First, it cannot be reasonably argued that Bullcoming raped L.B. for the benefit of the BIA. He raped L.B. solely for his own personal benefit. Next, although Bullcoming's act arose out of conduct connected to his law enforcement duties, he did not rape L.B. in prosecution of those duties. In short, the circumstances of Bullcoming's employment created an opportunity for him to rape L.B., but he clearly did not rape L.B. in furtherance of the BIA's interests. Several decisions of the Montana Supreme Court also rely on the Restatement (Second) of Agency § 229 in evaluating whether conduct falls within the scope of employment. That section provides in full as follows:

(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants;

(e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to expect that such an act will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal Restatement (Second) of Agency § 229.

Application of the Restatement § 229's factors also do not support a finding that Bullcoming's wrongful acts were within the scope of his employment. Rape is obviously not within the same general nature as the conduct BIA authorizes its agents to perform. The Court also cannot find rape to be similar or incidental to Bullcoming's authorized conduct. Law enforcement officers do not commonly rape civilians while performing their duties; the purpose of the act was not in furtherance of the BIA's interest; there is no indication Bullcoming's previous relationship with the BIA provided any notice that he may commit such an act; the act was outside the enterprise of the BIA; there is no indication the BIA had reason to expect the conduct from Bullcoming; there is nothing similar between Bullcoming's act to any act authorized by the BIA; the conduct was a gross deviation from that which was authorized; and the act was seriously criminal.

The only § 229 factors weighing in favor of a determination that Bullcoming's conduct was similar or incidental to that authorized are the time and place of the act, and that the BIA arguably furnished the instrumentality through which the harm was done. The act took place while Bullcoming was on duty; it was committed within the geographical limits of his authority; and the BIA provided the authority which Bullcoming abused in committing the act. But these factors alone are not sufficient.

(Doc. 60 at 9-11).

This Court adopted Judge Cavan's Findings in their entirety, overruled L.B.'s objections, and granted summary judgment in favor of the United States and against L.B. (Doc. 64 at 7).

L.B. appealed to the 9th Circuit, which then certified a question to the Montana Supreme Court who reformulated the question as: “Under Montana law, do law-enforcement officers act outside the scope of their employment, as a matter of law, when they use their authority as on-duty officers to sexually assault a person they are investigating for a crime?”^[1] The Montana Supreme Court answered “no.” It held that a mixed motive test must be employed and that whether an officer is acting with a dual motive (one that benefits his employer as well as himself) is a question of fact. L.B. v. United States, 515 P.3d 818, 825 (Mont. 2022). (Doc. 95).

The matter is back in District Court on remand from the 9th Circuit following the Montana Supreme Court's ruling. The Ninth Circuit's remand order reads in full:

“In light of the Montana Supreme Court's August 16, 2022, opinion in response to this Court's August 6, 2021, certification order, this case is reversed and remanded to the district court for further proceedings. See L.B. v. United States, 2022 MT 166, ¶ 26,P.3d(‘The certified facts establish that Officer Bullcoming was not, as a matter of law, acting outside the scope of his employment when he sexually assaulted L.B. and the question is one for a trier of fact').”

(Doc. 96).

Neither Judge Cavan nor this Court ever determined that law enforcement officers always act outside the course and scope of their duties as a matter of law when they sexually assault an individual they are investigating. Rather, this Court and Judge Cavan determined that, under the undisputed material facts and applying Montana law, Bullcoming was acting outside the scope of his employment, and that L.B. had failed to present any evidence to demonstrate that Bullcoming was acting in any way to further the BIA's interests-a prerequisite to determining he was acting in the course and scope of his employment and surviving summary judgment. Nonetheless, the Court will conduct its analysis de novo, applying the mixed-motive test specifically articulated by the Montana Supreme Court. See L.5., 515 P.3d at 825.

The parties have each moved for summary judgment once more. (Docs. 109 and 133). There are no disputed issues of material fact. (See Docs. 111 and 139).

II. Legal Standards

Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “material” only if it could affect the outcome of the suit under the governing law. Id.

In considering a motion for summary judgment, the Court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court...