Treho v. US, Civ. No. R-77-0229 BRT.

• Decision Date: 15 December 1978
• Docket Number: Civ. No. R-77-0229 BRT.
• Citation: 464 F. Supp. 113
• Parties: Albino TREHO and Judy Treho, Plaintiffs, v. UNITED STATES of America, Bureau of Indian Affairs, the Walker River Paiute Tribe, the Court of Indian Offenses for the Walker River Paiute Tribe, Manuel Sabori, Leland Johnson and John Doe, Defendants.
• Court: U.S. District Court — District of Nevada

464 F. Supp. 113

Albino TREHO and Judy Treho, Plaintiffs, v. UNITED STATES of America, Bureau of Indian Affairs, the Walker River Paiute Tribe, the Court of Indian Offenses for the Walker River Paiute Tribe, Manuel Sabori, Leland Johnson and John Doe, Defendants.

Civ. No. R-77-0229 BRT.

United States District Court, D. Nevada.

December 15, 1978.

COPYRIGHT MATERIAL OMITTED

G. C. Backus, Reno, Nev., for plaintiffs.

B. Mahlon Brown, U. S. Atty. by Shirley Smith, Asst. U. S. Atty., Reno, Nev., for defendants.

ORDER DISMISSING COMPLAINT

BRUCE R. THOMPSON, District Judge.

The plaintiffs Albino Treho and Judy Treho are husband and wife. Albino is an American citizen of Mexican ancestry. Judy is an American citizen, a Paiute Indian. They live in a residence within the boundaries of the Walker Lake Indian Reservation. The exact status and vestiture of the title to the residence is unclear in the present record, but plaintiffs did have lawful possession and occupancy of the residence.

The defendants are: (1) The United States of America, (2) The Bureau of Indian Affairs, (3) The Walker River Paiute Tribe, (4) Donald K. Pope, the duly appointed judge of the tribal court, (5) Randy Varain, Manuel Sabori and Leland Johnson, Indian policemen employed by the Bureau of Indian Affairs.

The plaintiffs complain of an unlawful search of their home on September 29, 1977. A search warrant had been issued by Judge Pope on information furnished by Officer Varain. The search was made and search warrant executed by Officers Sabori and Johnson. Many firearms were examined and their serial numbers recorded, but only one rifle was seized. Allegedly it was identified as a stolen gun. A motion for return of seized property was filed with Judge Pope and denied. No criminal charge against either plaintiff has been instituted. Plaintiffs have not regained possession of the seized firearm.

The search warrant, while not a model, is regular on its face and adequate to authorize the officers to conduct the search. The proceedings to obtain the warrant were irregular inasmuch as the complaint for the warrant was not signed by Varain, the complaining witness or applicant as required by 25 C.F.R. 11.13 and 11.16. The search pertained to a codified offense under the Code of Indian Tribal Offenses, 25 C.F.R. 11.47, receiving stolen property, and the jurisdiction of the Court of Indian Offenses extends to all territory within the reservation boundaries, including all patented lands. 25 C.F.R. 11.2(c).

This action is presently before the Court on plaintiffs' motion for partial summary judgment and on defendants' motion to dismiss. The latter is also treated as a motion for summary judgment under Rule 12(b) F.R.C.P. inasmuch as matters outside the pleadings have been presented and relied upon.

The action must be dismissed as against the United States and the Bureau of Indian Affairs, an agency of the United States, because of sovereign immunity. Plaintiffs have attempted to assert a Bivens type cause of action (Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, 1971) and expressly renounce any reliance on the Federal Tort Claims Act. They ignore the fact that in 1974 Congress amended the Federal Tort Claims Act, 28 U.S.C. sec. 2680(h), expressly to take care of the Bivens type situation. See, 1974 U.S. Code Congressional and Administrative News, Vol. 2, p. 2789. Thus the sole remedy against the United States is under the Federal Tort Claims Act (full compliance with the procedural conditions precedent in the Act are required and are absent here) and sovereign immunity bars a general claim for relief for an alleged constitutional deprivation.

Plaintiffs' counsel argues that the 1976 amendment to 28 U.S.C. 1331(a) authorizes this action under the federal question jurisdiction of the Court. The amendment added the proviso: "except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." This amendment to section 1331 must be read with the amendment to Title 5 U.S.C. sec. 702 included in the same act of Congress. The legislative history clearly shows that the elimination of the section 1331 jurisdictional amount requirement was intended to apply only to actions against the government, its agencies and officers seeking relief other than money damages.^*

The action against Judge Donald K. Pope must be dismissed because he acted in the performance of his judicial duties and is immune from actions for damages. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

Finally, we have for consideration the three Indian officers Varain, Sabori and Johnson. Only the Federal Drivers Act, incorporated into the Federal Tort Claims Act (28 U.S.C. 2679(b)) insulates the federal employees from tort liability in certain circumstances. In this case, the tortious misconduct alleged does not arise out of the operation of a motor vehicle, and if a Bivens type cause of action is allegeable against the federal officers for damages in excess of $10,000, this Court has jurisdiction. Turner v. Ralston, 409 F.Supp. 1260 (W.D.Wis.1976); Crain v. Krehbiel, 443 F.Supp. 202 (N.D.Cal.1978); Butler v. Mansfield, 452 F.Supp. 303 (E.D.Tenn.1978). There is also a possibility that if plaintiffs can identify, by interrogatory, which if any federal officer has possession of the firearm which they seek to recover, they may request relief in the nature of a writ of replevin or mandamus which would not involve a jurisdictional amount under 28 U.S.C. 1331 and 5 U.S.C. 702.

The perimeters of a Bivens type cause of action have not as yet been judicially determined. The case law generally supports the thesis that there must be an intentional, and perhaps aggravated and flagrant, violation of a victim's constitutional rights to support an action for damages to be inferred as a necessary and appropriate remedy for recognition and support of a constitutional guaranty. The need and appropriateness for other types of relief, such as a writ of mandamus or injunction, is more easily inferred and may be applied in less flagrant circumstances.

Further, an...