Flinn et al v. Wall et al

Filing 36

MEMORANDUM DECISION AND ORDER Defendants' Motion to Dismiss (Dkt. 12 ) is GRANTED IN PART AND DENIED IN PART. The § 1983 claims against Defendant Wall are not dismissed. All other claims against Defendant Wall and Defendant Hendricks are dismissed. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARY E. FLINN and JOHN E. FLINN,
individual and as the Personal
Representative of the Estate of Jeffrey
Flinn,

Case No. 3:13-CV-00486-EJL-REB
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
ROBERT WALL, individually and in his
official capacity, LESLIE HENDRICKS,
individually and in her official capacity
and JOHN DOES 1 - 5,
Defendant.

Pending before the Court in the above-entitled matter is Defendants Robert Wall
and Leslie Hendricks Motion to Dismiss Pursuant to Rule 12(b)(1). Dkt. 12. Having fully
reviewed the record, the Court finds that the facts and legal arguments are adequately
presented in the briefs and record. Accordingly, in the interest of avoiding further delay,
and because the Court conclusively finds that the decisional process would not be
significantly aided by oral argument, this matter shall be decided on the record before this
Court without oral argument.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The Personal Representatives of the Estate of Jeffrey Flinn filed this action
claiming Defendants Wall and Hendricks violated Jeffrey Flinn’s constitutional rights
either under 42 U.S.C. § 1983 or as a Bivens violation. It is undisputed that Flinn was
killed after a gun battle withe tribal police. Plaintiffs allege Officer Wall violated Flinn’s
civil rights under the 4th, 5th and 14th Amendments to the Constitution. Plaintiffs allege
Chief Hendrick violated Flinn’s constitutional rights by failing to train and supervise his
responding officers.
It is alleged Flinn stole a vehicle and firearms in Nez Perce County. Nez Perce
county law enforcement officers were in pursuit of Flinn. The Nez Perce Tribal Police
were notified of the incident by Nez Perce County Dispatch and a joint effort to
apprehend Flinn occurred with Nez Perce County deputies, Lewis County deputies, the
Idaho State Police and tribal law enforcement officers. The joint efforts were coordinated
through the Nez Perce County Dispatch. The stolen vehicle was disabled through the use
of spike strips placed on the road by the Idaho State Police. Officer Wall was the first
officer to make contact with Flinn. A gun battle occurred and Officer Wall shot Flinn
who died from the gunshot injuries. No Nez Perce County deputies were present when the
shootout with Flinn occurred.
Defendants Wall and Hendricks argue the Complaint should be dismissed for a
lack of jurisdiction. First, Defendants argue Officer Wall was enforcing tribal laws and
was not acting under the color of state law so there is no jurisdiction for a § 1983 claim.
MEMORANDUM DECISION AND ORDER - 2

Second, Defendants also argue they were not acting under color of federal law so the
Bivens claim must be dismissed. Third, Defendants argue tribal sovereign immunity
prevents this action from proceeding against the Defendants.
Plaintiffs have conceded there is no basis for a Bivens action in the Defendants
official capacities and the Court has dismissed these claims. Dkt. 35. Plaintiffs maintain
tribal officers were acting in concert with state actors in trying to stop the stolen vehicle
and apprehend Flinn and this makes Defendants liable under § 1983. Plaintiffs argue
since there is no claim against the Nez Perce Tribe, the sovereign immunity argument
does not apply.

STANDARD OF REVIEW
A defendant may move to dismiss a complaint for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) in one of two ways. See Thornhill Publ'g Co., Inc.
v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The attack may be a
"facial" one where the defendant attacks the sufficiency of the allegations supporting
subject matter jurisdiction. Id. On the other hand, the defendant may instead launch a
"factual" attack, "attacking the existence of subject matter jurisdiction in fact." Id. A
"factual" attack made pursuant to Rule 12(b)(1) may be accompanied by extrinsic
evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Trentacosta v.
Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). "[N]o presumptive
truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts
MEMORANDUM DECISION AND ORDER - 3

will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims." Thornhill, 594 F.2d at 733.
However, “[t]he relatively expansive standards of a 12(b)(1) motion are not
appropriate for determining jurisdiction [pursuant to a “factual attack”] ... where issues of
jurisdiction and substance are intertwined. A court may not resolve genuinely disputed
facts where ‘the question of jurisdiction is dependent on the resolution of factual issues
going to the merits.’” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
“When a statute provides the basis for both the subject matter jurisdiction of the federal
court and the plaintiff’s substantive claim for relief, a motion to dismiss for lack of
subject matter jurisdiction, rather than for failure to state a claim, is proper only when the
allegations of the complaint are frivolous.” Id. In such a case, "the jurisdictional
determination should await a determination of the relevant facts on either a motion going
to the merits or at trial." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
When considering a motion to dismiss based on a lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), the court is not restricted to the face of the
pleadings, but may review any evidence to resolve factual disputes concerning the
existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
The burden is on the plaintiff, as the party asserting jurisdiction, to prove that federal
jurisdiction is proper. Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499
(9th Cir. 2001); McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178,
189 (1936). “[S]overeign immunity is a question of subject matter jurisdiction.” United
MEMORANDUM DECISION AND ORDER - 4

States v. Nye Cnty., Nev., 178 F.3d 1080, 1089 n. 12 (9th Cir. 1999).
ANALYSIS
1. 42 U.S.C. § 1983 against Officer Wall
“[I]n order to prevail in a section 1983 action, a plaintiff must establish ... that ‘the
conduct complained of was committed by a person acting under color of state law.’”
Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141 1142 (3rd Cir. 1990). Here,
Defendants argue and submit affidavits they were acting under tribal law not state law.
The Court finds the motion to dismiss is a mixed facial and factual challenge. Generally,
the Court would agree that tribal officers are normally enforcing tribal laws when they are
on duty. But in this case the Plaintiffs have submitted sufficient evidence that the tribal
officers were acting in concert with the state and county law enforcement officer and not
acting on their own to solely enforce tribal laws. The Court finds the case of Evans v.
McKay, 869 F.2d 1341 (9th Cir. 1989) to be controlling. The purpose from the beginning
to the end of the pursuit of Flinn was to apprehend an individual who had allegedly stolen
a vehicle and firearms. The fact that a Tribal officer or officers were the first in line in
pursuing the vehicle was just a matter of coincidence. In this case it was a county law
enforcement officer that first reported the theft of the vehicle that put things in motion
and it was a state law enforcement officer that put the spikes on the road that brought the
vehicle to a stop. The entire incident cannot be broken down into jurisdictional segments
or law enforcement officers would be severely handicapped in doing their jobs.
The Supreme Court has held that the state action requirement of § 1983 can be
MEMORANDUM DECISION AND ORDER - 5

satisfied when the party charged with committing a constitutional violation “may fairly be
said to be a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).
For purposes of the motion to dismiss, the Court finds Officer Wall could fairly be said to
be acting under color of state law during the pursuit and shoot out with Flinn. The
question of whether the shooting was justified is a question on the merits which is not
before the Court at this time.

2. 42 U.S.C. § 1983 against Defendant Hendricks
As to the claim of failure to properly train against the Chief of Police, the Court
finds Plaintiffs have not carried their burden that the Chief of Police was acting under
color of state law when he allegedly failed to properly train his tribal officers. There is no
evidence Defendant Hendricks was directly involved in the shooting and/or directing
Officer Wall’s actions at the time Flinn was stopped and shot. Any training provided or
not provided would have been in the scope of Hendricks’ actions under tribal law, not
state law. Accordingly, the claims against Defendant Hendricks will be dismissed.

3. Sovereign Immunity
Defendants claim they cannot be sued as the Nez Perce Tribe is protected by
sovereign immunity. The Court agrees if the Tribe had been named as a defendant, the
claims would have to be dismissed. Instead, the claims are against individuals and the
Court does not find that sovereign immunity applies to the claims against Defendant
MEMORANDUM DECISION AND ORDER - 6

Wall. See Evans v. Mckay, 869 F.2d 1341, 1347 (claims against Tribe were properly
dismissed).
ORDER
IT IS ORDERED:
Defendants’ Motion to Dismiss (Dkt. 12) is GRANTED IN PART AND DENIED
IN PART. The § 1983 claims against Defendant Wall are not dismissed. All other claims
against Defendant Wall and Defendant Hendricks are dismissed.
DATED: July 15, 2014

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 7