Cole et al v. Federal Bureau of Investigation et al
FINDINGS AND RECOMMENDATIONS re 96 MOTION for Judgment on the Pleadings and MOTION for Partial Summary Judgment filed by Matthew Oravec. IT IS RECOMMENDED that Oravec's motion (ECF 96) be DENIED to the extent he seeks p artial summary judgment respecting the Bearcrane claims, but GRANTED to the extent it seeks judgment on the pleadings respecting the Springfield claims, as set forth herein. Signed by Magistrate Carolyn S Ostby on 1/23/2014. (JDH, ) Modified on 1/28/2014 to change to written opinion. (NOB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
EARLINE COLE, as an individual
and as personal representative of
the ESTATE OF STEVEN
BEARCRANE, et al.,
MATTHEW ORAVEC, in his
U.S. MAGISTRATE JUDGE
Plaintiffs allege that Defendant Matthew Oravec (“Oravec”), an
FBI special agent, was motivated by racial animus toward Native
Americans in refusing or failing to adequately investigate the death of
Steven Bearcrane (“Bearcrane”) and the disappearance and death of
Robert Springfield (“Springfield”) in violation of their equal protection
rights. Plaintiffs are Bearcrane’s and Springfield’s Personal
Representatives who originally brought this action generally alleging
discrimination against Native Americans. Cmplt. (ECF 1).1
All claims and Defendants have been dismissed except Plaintiffs’
equal protection Bivens2 claims against Oravec. See ECFs 56 and 69.
This Court has jurisdiction under 28 U.S.C. § 1331. The matter is
referred to the undersigned under 28 U.S.C. § 636(b)(1)(A)-(B). In re:
Reassignment of Pending Civil Cases (ECF 95). Now pending is
Oravec’s Motion for Judgment on the Pleadings and for Partial
Summary Judgment (ECF 96). Having heard oral argument on
November 19, 2013, and having carefully considered the parties’ briefs
and the applicable law, the Court enters the following Findings and
The Court described this matter’s factual background, including
Plaintiffs’ allegations and claims, in its Findings and Recommendations
“ECF” refers to the document as numbered in the Court’s Electronic
Case Files. See The Bluebook, A Uniform System of Citation, § 10.8.3.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
filed on May 25, 2010. ECF 53 at 2-9. The Court will not repeat that
information here except as necessary for clarity.
This matter’s procedural background warrants more discussion.
In the May 25, 2010 Findings and Recommendations, the undersigned
recommended that Counts I, II, IV, and V of Plaintiffs’ Amended
Complaint be dismissed, and that “Count III be dismissed except as to
the Personal Representatives against Defendant Matthew Oravec.” Id.
On June 17, 2010, then-Chief Judge Cebull adopted the Findings
and Recommendations in their entirety. Order Adopting Findings and
Recommendations (ECF 56) at 13. Thus, Judge Cebull dismissed all
Counts except that portion of Count III relating to the claims of the
Personal Representatives against Oravec.
On August 13, 2010, Plaintiffs and Oravec appealed to the Ninth
Circuit Court of Appeals. Oravec’s Notice of Appeal (ECF 59) (USCA
Case Number 10-35710) and Plaintiffs’ Notice of Appeal (ECF 60)
(USCA Case Number 10-35717). On October 7, 2010, the Ninth Circuit
mediator issued an Order granting Plaintiffs’ motion to dismiss their
appeal – USCA Case Number 10-35717 – under Fed. R. App. P. 42(b).
Order (ECF 66).
Respecting Oravec’s appeal, on January 10, 2012, the Ninth
Circuit issued an unpublished memorandum decision affirming this
Court’s denial of Oravec’s motion to dismiss the equal protection claim
against him based on qualified immunity to the extent the claim
related to the investigation into Bearcrane’s death. Memorandum
(ECF 69) at 2-4. The Ninth Circuit reversed a portion of this Court’s
decision, however, “because the allegations made on deceased Robert
Springfield’s behalf are not sufficient[.]” Id. The court remanded to
allow Plaintiffs “leave to amend their complaint with regard to the
Springfield investigation.” Id. at 5.
The Ninth Circuit later denied Oravec’s petitions for panel
rehearing and rehearing en banc. Order (ECF 71) at 1-2. It also
granted Oravec’s motion for a stay of the issuance of the mandate
pending application for a writ of certiorari. Order (ECF 72).
The United States Supreme Court denied Oravec’s petition for a
writ of certiorari. Letter (ECF 75). The Clerk of the Ninth Circuit then
issued the formal mandate, remanding the case to this Court. Mandate
On February 27, 2013, the Court and counsel participated in a
scheduling conference. ECF 81. On February 28, 2013, the Court
issued a Scheduling Order. ECF 82.
On April 11, 2013, with no objection by Oravec and having
received the Court’s leave, Plaintiffs filed an Amended Complaint
(“Amended Complaint (Second)”).3 ECF 93. On April 25, 2013, Oravec
The pleading is actually Plaintiffs’ second Amended Complaint. The
Court will refer to the pleading as “Amended Complaint (Second).”
Although, as noted above, the Court previously dismissed all counts
and defendants except that portion of Count III relating to the claims of
the Personal Representatives against Oravec, Plaintiffs included the
dismissed claims and defendants in their Amended Complaint (Second).
It is unclear why Plaintiffs did so. If they did so to preserve the claims
and defendants for appeal, it was unnecessary. “An appeal from a final
judgment draws in question all earlier, non-final orders and rulings
which produced the judgment.” Harvey v. Waldron, 210 F.3d 1008,
1015 (9th Cir. 2000), overruled in part on other grounds by Wallace v.
Kato, 549 U.S. 384, 393-94 (2007) (quoting United Ass’n of Journeymen
& Apprentices v. Bechtel Constr. Co., 128 F.3d 1318, 1322 (9th Cir.
1997)); see also Patchick v. Kensington Publ’g Corp., 743 F.2d 675, 677
(9th Cir. 1984) (per curiam) (holding that dismissal of some, but not all,
of defendants who had been served with complaint is not a final order).
Because, in this case, all other counts and defendants already have
been dismissed, the Court will not address them further.
filed his “Answer to the Plaintiffs’ Amended Complaint (Second).”
Answer (ECF 94).
On June 7, 2013, Oravec filed the pending “Motion for Judgment
on the Pleadings and for Partial Summary Judgment.” ECF 96. On
July 29, 2013, Plaintiffs filed a “Rule 56(d) Motion for Court to Defer
Consideration of Defendant’s Motion for Summary Judgment and, if
not Granted, for One-Week Extension.” ECF 102. In an Order filed
September 12, 2013, the Court denied Plaintiffs’ motion to the extent it
sought deferral of consideration of Oravec’s summary judgment motion
until after the close of discovery, but granted the motion to the extent
Plaintiffs sought a one-week extension of time to respond to Oravec’s
motion. Order (ECF 105). The Court set deadlines for Plaintiffs to
respond to Oravec’s motion and for Oravec to respond. The Court also
permitted oral argument, which was held on November 19, 2013. At
the conclusion of oral argument, the Court also permitted the parties to
file supplemental briefs, which they did. ECF 116 (Oravec’s Supp. Br.)
and ECF 117 (Plaintiffs’ Resp. to Oravec’s Supp. Br.).
As noted, only the Personal Representatives’ equal protection
Bivens claims against Oravec in Count III remain. See ECF 93 at ¶¶
10, 12, 15, 38-40, and 72-75. All other claims and Defendants have
been dismissed. ECFs 56 and 69.
In seeking dismissal of the remaining claims, Oravec advances
two principal arguments. First, respecting Plaintiffs’ constitutional
claims on behalf of Bearcrane (“Bearcrane claims”), Oravec seeks
summary judgment under Rule 56(a)4 arguing that the applicable
statute of limitations bars the claims. ECF 96 at 2. Second, respecting
Plaintiffs’ constitutional claims on behalf of Robert Springfield
(“Springfield claims”), Oravec seeks judgment on the pleadings under
Rule 12(c). He argues that the Amended Complaint (Second), like the
first Amended Complaint found deficient by the Ninth Circuit, fails to
adequately allege a Fifth Amendment equal protection violation. Id.
The Court addresses each argument in turn.
References to rules are to the Federal Rules of Civil Procedure unless
Oravec’s Summary Judgment Motion Respecting the
Oravec argues that Montana’s three-year statute of limitations for
personal injury actions applies to Plaintiffs’ Bivens claims. Oravec’s
Opening Br. (ECF 97) at 4-6. He maintains that, absent any reason for
tolling the limitations period, Plaintiffs were required to bring their
claims within three years after their causes of action accrued. He
argues that, under applicable federal law, a Bivens cause of action
accrues when the plaintiff knows or should have known that he or she
has been harmed. Because undisputed facts show that Plaintiffs knew
or should have known that they were harmed more than three years
before they filed this action, Oravec argues, the Bearcrane claims are
He argues specifically that the Bearcrane claims accrued when
Plaintiffs suspected, or should have suspected, that racial animus, bias,
or prejudice against Native Americans motivated him to conduct an
inadequate investigation thus violating Bearcrane’s Fifth Amendment
rights. Id. at 6. Oravec argues that the following evidence proves
Plaintiffs’ awareness, and thus accrual of their claims, more than three
years before the February 24, 2009 filing of this action:
(1) throughout 2005 and 2006 after the February 2, 2005 fight
during which non-Indian Bobby Holcomb (“Holcomb”) shot and killed
Bearcrane, Bearcrane’s parents (“the Coles”) visited with Oravec and
his FBI supervisor to request investigation records and the Coles
repeatedly told Oravec’s supervisor that Oravec was failing to perform
an adequate investigation, id.;
(2) on February 11, 2005, the Coles presented a formal request for
assistance to the U.S. Commission on Civil Rights, a representative of
which, in turn, wrote to the FBI seeking information on the progress
and status of the FBI’s investigation of the Bearcrane shooting, id. at 7;
(3) on October 11, 2005, the Coles formally complained to the
FBI’s Salt Lake City office, id.;
(4) also on October 11, 2005, the Coles sent a written complaint to
U.S. Senator Max Baucus, in which they wrote:
We are requesting a Congressional inquiry on the
handling of the investigation of the murder of our
son, Steven Thomas Bearcrane, who was shot
Feb. 2, 2005. Since the day this devastating
incident occured [sic] our questions remain
unanswered by Federal Bureau of Investigation.
We believe the initial investigation was not only
inappropriately handled but also biased. The
man who killed our son was never arrested or
charged for his crime and continues to go on with
(5) on October 12, 2005, the Coles met with Assistant U.S.
Attorney Mara Kohn (“Kohn”), who told them that the South Dakota
U.S. Attorney’s Office, which was handling the case, would not
prosecute Holcomb for the shooting, id. at 8;
(6) the same day, Kohn annotated in the office file that the
primary reason for declining to prosecute was “lack of evidence of
criminal intent[,]” id.;
(7) on October 17, 2005, the Coles acknowledged the decision to
decline to prosecute in a letter to Kohn, id.;
(8) in a November 2, 2005 letter Kohn responded to the Coles
noting that “[n]one of the factors discussed have changed since our
(9) also on November 2, 2005, Kohn officially closed the file, id.;
(10) around October 25, 2005, the Coles prepared an “Outline of
Complaint Against the Federal Bureau of Investigation, Billings,
Montana,” noting Oravec’s anti-Native American prejudice influenced
his investigation and violated civil rights, id. at 8-9.
From the foregoing evidence, Oravec argues, Plaintiffs knew or
should have known of Oravec’s violation of Bearcrane’s equal protection
rights at least as early as October 11, 2005. Id. at 10. Applying
Montana’s three-year statute of limitations for personal injury to this
Bivens action, Oravec argues, Plaintiffs were required to file this case
by October 11, 2008. Because they filed it on February 24, 2009,
Oravec argues, their claims against him are beyond the limitations
period and summary judgment in his favor is appropriate. Id.
Plaintiffs filed two responses to Oravec’s summary judgment
motion. See Bearcrane Plaintiffs’ Mtn. for Court to Defer Consideration
of Oravec’s Summary Judgment Mtn. (ECF 102) and Bearcrane
Plaintiffs’ Resp. to Defendant’s Mtn. for Partial Summary Judgment
(ECF 106). In their initial response, Plaintiffs agree that a three-year
limitations period applies to Bivens actions in Montana. ECF 102 at 6.
But, they argue, summary judgment is inappropriate for two reasons.
First, Plaintiffs maintain that genuine issues of material fact exist
respecting when the limitations period began. Id. at 6-12. Second, they
argue that, even if the limitations period started before February of
2006, Oravec’s and other’s concealment of facts tolls it. Id. at 6, 13-17.
Respecting their first argument, Plaintiffs contend that they did
not know until after February 24, 2006, that the government
prosecutor decided not to prosecute. Id. at 6-9. Their causes of action
did not accrue, they argue, until: (1) the government closed the
Bearcrane death case “without provision of additional law enforcement
services[ ]”; and (2) they learned of the final government action – that
the government would not prosecute Holcomb. Id. at 7-8. Thus,
Plaintiffs argue, the operative factual question to be answered is “when
did the Plaintiffs learn that the government had finally closed
Bearcrane’s murder without a prosecution[?]” Id. at 9 (emphasis
omitted). Because fact issues exist respecting when they knew that the
government finally decided not to prosecute, Plaintiffs argue, summary
judgment is inappropriate. Id. at 9-10.
Also, Plaintiffs argue, they did not know of Oravec’s
discriminatory investigation until after February 24, 2006. Id. at 1012. They note that the FBI failed to provide them with records of
Oravec’s investigation until after May of 2006. Id. at 11. And,
although they “may have had suspicions about an inadequate
investigation, they did not have actual knowledge of a discriminatory
investigation until they received all of the records of the
investigation[,]” which was not until after May of 2006. Id.
Respecting their argument that the Court should toll the
limitations period, Plaintiffs argue that “the government acted
affirmatively to convince the Bearcrane plaintiffs that they did not
have a cause of action.” Id. at 13. They argue that the FBI delayed
providing them with relevant files of Oravec’s investigation, and the
U.S. Attorney for South Dakota told them that the murder case was
still open and that a prosecution was possible. Id. at 13-14. Thus,
Plaintiffs argue, genuine issues of material fact exist respecting
whether the limitations period should be tolled, and summary
judgment is inappropriate. Id. at 14-15.
In their subsequent response to Oravec’s summary judgment
motion, Plaintiffs again argue that genuine issues of material fact –
particularly the issue of when “Plaintiffs knew that they had suffered a
cognizable injury” – preclude summary judgment. ECF 106 at 2. They
argue that: (1) the limitations began to run when Plaintiffs “knew ...
that the completed investigation was inadequate; ... prosecution had
been formally declined[,] ... agent Oravec had an animus toward Native
Americans, ... [and] Plaintiffs did not know these things until well after
February 24, 2006[,]” id. at 4-13; (2) even if the limitations period
started to run before February 2006, it was tolled by concealment of
facts by the government, id. at 13-15.
In reply, Oravec argues that: (1) Plaintiffs misinterpret and
misapply the doctrine of claim accrual because both the prosecution
declination and investigation closure date are irrelevant to claim
accrual, Oravec’s Reply Br. (ECF 109) at 2-8; (2) he is entitled to
summary judgment as a matter of law because undisputed evidence
shows that Plaintiffs made repeated complaints regarding Oravec’s
actions and motivations in 2005, id. at 8-11; and (3) Plaintiffs’ tolling
argument fails because Plaintiffs have presented no evidence that
Oravec concealed any information or documents from them and that
Plaintiffs suspected Oravec was racially biased and intentionally failed
to provide law enforcement services shortly after the February 2005
shooting, id. at 12-14.
As noted, following oral argument held on November 19, 2013, the
Court permitted the parties to file supplemental briefs to address
relevant testimony expected to be elicited from Plaintiff Earline Cole’s
upcoming deposition. Specifically, the Court permitted the parties to
file supplemental briefs on the issue of the authorship of the “Outline of
Complaint Against the Federal Bureau of Investigation, Billings,
Montana” (“Outline”). In his supplemental brief, Oravec argues that
Earline Cole testified that she wrote the Outline with her mother’s help
in mid-November 2005. Oravec’s Supp. Br. (ECF 116) at 2-5. Because
her testimony shows that Plaintiffs knew or should have known that
their cause of action against Oravec accrued in mid-November 2005,
Oravec argues, it is barred by Montana’s three-year statute of
limitations applicable to Bivens actions and summary judgment is
appropriate. Id. at 4-5.
Plaintiffs filed a responsive supplemental brief and filed a
declaration of Earline Cole in support. Bearcrane Plaintiffs’ Resp. Br.
(ECF 117) and Declaration of Earline Cole (“Cole Decl.”) (ECF 117-1).
Plaintiffs argue that: (1) when the Outline was written, Ms. Cole was
upset and emotionally distraught because law enforcement agencies
had not yet produced enough evidence to warrant a prosecution of
Bearcrane’s killer, id. at 2; (2) Ms. Cole’s mother, Rosie Bearcrane,
“actually composed” the Outline and put things in it that Ms. Cole had
not said, id. at 3; (3) Oravec’s attorney did not ask Ms. Cole at her
deposition “what she understood her mother’s writing to mean[,]” id.;
(4) Plaintiffs were excited that the FBI was joining the investigation
and Cletus Cole testified that he believed the FBI would counter racism
shown by the Yellowstone County Sheriff’s Office because Earline
Cole’s sister worked for the U.S. Attorney and thus worked closely with
the FBI, id.; (5) it was not until 2008 or later that Linda Cole revealed
that Oravec had an animus toward Native Americans, id.; (6) in the
Outline, Rosie Cole distinguished between “bias” and “racism”, id.; (7)
in the Outline, it states that Earline Cole believed racist overtones
came from the Yellowstone County Sheriff’s Office and that she
believed Oravec was disrespectful, rude, and disinterested in the case
and was thus biased, but she did not yet believe that he was a racist,
id. at 3-4; (8) Earline Cole did not receive the case files until the
summer of 2006 and it was after that when she began to talk with
other Native American families about their experiences with Oravec,
id. at 4; (9) Oravec has produced no evidence that predates February
2006 showing that Plaintiffs accused Oravec of racism, id. at 5; and (10)
genuine issues of material fact are present from the foregoing and
render summary judgment inappropriate, id. at 5-6.
Summary Judgment Standard
Fed. R. Civ. P. 56(a) requires the court to grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of
law. The movant bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions
of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, which it believes
demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Entry of summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. A moving
party without the ultimate burden of persuasion at trial has both the
initial burden of production and the ultimate burden of persuasion on a
motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz
Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving
party meets its initial burden, the burden then shifts to the opposing
party to establish a genuine issue as to any material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The purpose of summary judgment is to pierce the pleadings and
to assess the proof in order to see whether there is a genuine need for
trial. Id. at 587 (quotation omitted). In resolving a summary judgment
motion, the evidence of the opposing party is to be believed, Anderson,
477 U.S. at 255, and all reasonable inferences that may be drawn from
the facts placed before the Court must be drawn in favor of the
opposing party, Matsushita, 475 U.S. at 587 (citation omitted).
In a Bivens action such as this one, the forum state’s personal
injury statute of limitations provides the applicable limitations period.
Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th
Cir. 2000) (citing Van Strum v. Lawn, 940 F.2d 406, 408-10 (9th Cir.
1991)). Montana’s personal injury statute of limitations is three years.
MCA § 27-2-204(1). Plaintiffs filed this action on February 24, 2009.
ECF 1. Thus, absent a reason for tolling the limitations period, for
their Bivens claim against Oravec to be timely, it must have accrued on
or after February 25, 2006. The issue at hand, then, is the date on
which Plaintiffs’ Bivens claim against Oravec accrued.
“While the statute of limitations period is derived from state law,
federal law determines when the statute of limitations period accrues.”
Cederquist, 235 F.3d at 1156 (citing Compton v. Ide, 732 F.2d 1429,
1432 (9th Cir. 1984), abrogated on other grounds, Agency Holding Corp.
v. Malley-Duff & Assoc., Inc., 483 U.S. 143 (1987)). “A Bivens claim
accrues when the plaintiff knows or has reason to know of the injury.”
Id. (citing Bagley v. CMC Real Estate Corp., 923 F.2d 758, 761-62 (9th
In this case, the injury about which Plaintiffs either had to know
or have reason to know for their claim to accrue for limitations period
purposes was the deprivation of adequate law enforcement services
motivated by animus toward Native Americans. ECF 93 at 34-36. The
critical inquiry is whether Plaintiffs knew or had reason to know of this
injury before February 25, 2006. For the reasons discussed below, the
Court concludes that genuine issues of material fact exists concerning
this question. Thus, the Court cannot determine, as a matter of law,
that Plaintiffs’ Bivens claims are untimely. Summary judgment,
therefore, is inappropriate.
It cannot reasonably be disputed that Plaintiffs were dissatisfied
with law enforcement efforts aimed at investigating Bearcrane’s death
shortly after it occurred and well before the three-year limitations
period preceding the filing of this action. As noted above, beginning
soon after the shooting from which Bearcrane died, Bearcrane’s parents
met with Oravec and FBI officials to complain about the adequacy of
the investigation. Also, well before February 25, 2006, Plaintiffs,
among other things: (1) presented a formal request for assistance to
the U.S. Commission on Civil Rights, from which a representative
wrote to the FBI seeking information on the status of the investigation;
(2) complained to the FBI’s Salt Lake City office; (3) sent a written
complaint to U.S. Senator Max Baucus in which they noted the
investigation appeared to them to be “biased” and “inappropriately
handled[;]” (4) met with and complained to the assistant U.S. Attorney
assigned to the case; and (5) prepared, with the help of Earline Cole’s
mother, a written Outline of a complaint against the FBI.
Plaintiffs also have expressly acknowledged that they may have
had suspicions about an inadequate investigation before February 25,
2006. But the relevant inquiry before the Court is more complicated
than whether Plaintiffs were merely dissatisfied with law enforcement
efforts in general or even with whether they vaguely suspected some
sort of bias in the investigation. Plaintiffs, as evidenced by Earline
Cole’s sworn declaration, maintain that “they did not have actual
knowledge of a constitutionally discriminatory investigation” until later
when they received all records of the investigation. ECF 106 at 11.
None of the evidence upon which Oravec relies, except for the
Outline of a complaint against the FBI, specifically mentions racial
prejudice or animus as a possible factor contributing to Plaintiffs’
dissatisfaction with the investigation. While many of the documents
mention a concern about “bias” on the part of the law enforcement
agencies, that word, in the context of the content of each document,
may not necessarily indicate racial bias. And even though the letter
written on Plaintiffs’ behalf by the U.S. Commission of Civil Rights
notes that the commission is “charged with studying issues involving
discrimination or a denial of the equal protection of the laws in the
administration of justice[,]” it does not allege racial discrimination or
prejudice respecting the investigation. Rather, the commission
mentions the mission with which it is charged in the context of noting
that it “has no enforcement authority[.]” ECF 98-1.
Respecting the Outline of a complaint against the FBI, as noted
above, Earline Cole stated in a sworn declaration filed as part of
Plaintiffs’ response to Oravec’s summary judgment motion that her
mother “actually composed” the document and put things in it that
Earline Cole did not say. ECF 117 at 3; ECF 117-1 at ¶ 2.
And even if Earline Cole had written the Outline, those portions
that reference possible racial overtones or prejudice, taken in context,
refer to Yellowstone County Sheriff’s Office and Montana Highway
Patrol involvement with the response to and investigation of
Bearcrane’s death and failure to act on a warrant for Holcomb the day
before Bearcrane’s death. The Outline does not refer to racial prejudice
or animus by Oravec, but rather describes Oravec as “rude,” “extremely
disinterested[,]” “totally apathetic[,]” “intimidat[ing,]” “disrespectful,”
and exhibiting an “extreme lack of overall interest.” ECF 98-5 at 2, 4.
Although the Outline states that there was strong suspicion that “the
investigation was “BIASED, based on Matt Oravec’s actions[,]” it
explains only that it “[s]eemed like he had his mind made up
immediately.” Id. at 2. Again, in context, the Outline does not mention
racial prejudice, bias, or animus against Native Americans as affecting
Oravec’s motivation during the investigation. To the extent one could
reasonably draw such an inference from the evidence, there is also
evidence from which a jury could conclude that Plaintiffs did not
suspect racial prejudice or animus against Native Americans as
Oravec’s motivation until sometime after February 25, 2006, and thus
within the applicable limitations period.
In reaching this conclusion, the Court finds instructive the Ninth
Circuit’s decision in Bibeau v. Pacific Northwest Research Foundation
Inc., 188 F.3d 1105 (9th Cir. 1999). There, Bibeau sued decades after
having been a paid participant in experiments on prison inmates
designed to test the human body’s responses to various experiments,
including “the effect of radiation on human testicular function.” Id. at
1107. The defendant moved for summary judgment on statute of
limitations grounds, and the district court granted the motion. Id. In
reversing the district court, the Ninth Circuit, applying the discovery
rule respecting when Bibeau had knowledge of the “critical facts” of his
injury, noted that “what [a plaintiff] knew and when [he] knew it are
questions of fact.” Id. at 1108 (quoting Simmons v. United States, 805
F.2d 1363, 1368 (9th Cir. 1986)). In doing so, the court observed that
the district court, in granting summary judgment after determining
that Bibeau did not diligently investigate his injury after experiencing
symptoms, failed to “specify when Bibeau was, or should have been,
aware of the fact that he had been injured by” defendants’ actions. Id.
(emphasis in original). The Ninth Circuit, in noting “the fact-intensive
nature of the issue the district court resolved in granting summary
judgment[,]” observed that “[a] trier of fact could find that a reasonable
person would not necessarily have connected Bibeau’s symptoms to” the
experiments. Id. at 1109.
Similarly, in the case at hand, a trier of fact reasonably could
determine that Plaintiffs’ initial concerns about the investigation were
not necessarily attributable, at the time, to the belief they have now –
that Oravec’s investigation was the result of racial prejudice or animus
that he had toward Native Americans. Under Rule 56(a), the Court is
not permitted to resolve genuine issues of material fact, but only to
identify whether they exist. As the foregoing discussion explains,
genuine issues of material fact here must be resolved by the trier of
fact. Summary judgment is, therefore, inappropriate.
Motion for Judgment on the Pleadings – Springfield
Respecting Plaintiffs’ Springfield claims, Oravec seeks judgment
on the pleadings under Rule 12(c). As noted above, he argues generally
that the Amended Complaint (Second), like the first Amended
Complaint found deficient by the Ninth Circuit, fails to adequately
allege a Fifth Amendment equal protection violation. He argues that it
“once again fails to assert sufficient non-conclusory factual allegations
to permit a plausible inference that Oravec violated Robert
Springfield’s Fifth Amendment right to equal protection by putting less
effort into the investigation because Springfield was a member of the
Crow tribe.” ECF 97 at 11.
Specifically, Oravec argues that: (1) the Ninth Circuit previously
concluded that the Springfield Plaintiffs’ prior allegations were
insufficient to “demonstrate both differential treatment and
discriminatory motive” by him during the Springfield investigation, id.
at 13 (citing ECF 69 at 2, 4); (2) despite receiving guidance from the
Ninth Circuit, the Amended Complaint (Second) “is not substantially or
materially different from the previous two complaints[,]” id. at 14; (3)
the Springfield Plaintiffs again “have failed to assert sufficient
relevant, non-conclusory factual allegations to allow the reasonable
inference that Oravec’s limited conduct during the Springfield
investigation was motivated by discriminatory animus toward Native
Americans, or that it was the ‘but-for’ cause of an inadequate
investigation[,]” id.; (4) a comparison of the two complaints
demonstrates the addition of only “a few inconsequential facts” that
“fail to ... support [a] plausible inference of improper conduct[ ]” and
“the bulk of the Springfield allegations ... remain unchanged[,]” id. at
14-15; (5) the newly-added factual allegations only “provide further
description of the scene where Springfield’s remains were found, which
has no relevance to the question of whether Oravec was motivated by
racial animus during the course of his involvement with the
investigation sufficient to demonstrate differential treatment and
discriminatory motive[,]” id. at 15-16; (6) the new factual allegations
are inadequate because: (a) the assertion that the FBI improperly held
Springfield’s remains without conducting testing is conduct that cannot
be imputed to Oravec; (b) the assertion that Oravec failed to interview
anyone other than Springfield’s son lacks necessary specificity
respecting witnesses’ identities and the substance of their statements;
(c) the assertion that Oravec refused to allow a local coroner access to
the crime scene is not sufficient to cure the Complaint’s deficiencies;
and (d) the Springfield Plaintiffs’ characterization of the crime scene
with additional factual allegations about missing items and
Springfield’s clothes “sheds little light on Oravec’s intent[,]” id. at 1617; and (7) the Amended Complaint (Second) fails not only to allege
how Oravec violated Springfield’s equal protection rights but also fails
to allege when he allegedly did so, id. at 17.
In response, the Springfield Plaintiffs advance a two-pronged
argument. Springfield Plaintiffs’ Resp. to Defendant’s Mtn. for
Judgment on the Pleadings (ECF 101) at 4-10. First, they argue that
they have pled sufficient factual allegations to raise a plausible claim
that Oravec failed to provide law enforcement services to Springfield.
Id. at 4-8.
Specifically, the Springfield Plaintiffs argue that they have
alleged that: (1) Oravec refused to investigate Springfield’s
disappearance at all, id. at 4; (2) even after Springfield’s body was
found, Oravec “failed to even go through the motions of conducting an
adequate investigation” even in light of facts that: (a) gun shots were
heard in the mountains on the day Springfield went missing; (b) a hole
that could have come from a bullet was found in the back of
Springfield’s hunting jacket; (c) a bow, arrow, and other items that
Springfield had with him at the time he disappeared were not found
with his remains; and (d) Springfield’s shoes and a belt, found neatly
rolled up, were found next to his remains, id. at 5; (3) Oravec refused to
interview anyone other than Springfield’s son “despite the fact that
there were many possible witnesses who were available and desired to
be interviewed regarding Mr. Springfield’s death[,]” id. at 5-6; (4) the
FBI lab held Springfield’s remains for more than two years without
performing any testing of them, id. at 6; and (5) Oravec refused to allow
the Big Horn County coroner to examine the site on which Springfield’s
remains were found or to examine the remains, id.
Second, the Springfield Plaintiffs argue that they have
sufficiently alleged that Oravec acted out of animus toward Native
Americans to create a plausible claim. Id. at 8-10. They argue that
they have alleged that: (1) “Oravec consistently closed cases involving
Indian victims without adequate investigation,” id. at 9; (2) “Oravec has
been heard to say that female Native American victims of sexual
assaults were asking for assault or words to that effect[,]” id.; (3) in
another case involving the killing of a Native American, Oravec refused
to listen to a witness who indicated the killing may have been a murder
and instead stated that victim had been drinking and commented
“words to the effect that ‘everyone knows that Indians cannot hold their
liquor[,]’ ” id.; and (4) Oravec hindered investigations of crimes in which
Native Americans were victims and acted to prevent them from
receiving assistance and other rights afforded crime victims – for
example, Oravec: (a) “actively interfered with the work of county
officials ... regarding Indian cases, including the cases of Steven
Bearcrane-Cole and [Robert] Springfield[,]”; (b) failed to have
Springfield’s remains identified or investigated; and (c) “failed to
provide plaintiff Springfield with necessary information; and delayed
getting information to the local coroner so that a death certificate could
be issued ... thereby denying [her] and her children ... benefits and
protections available and due to them[,]” id. at 9-10.
For all of these reasons, the Springfield Plaintiffs argue that they
have alleged sufficient facts to support a Fifth Amendment claim
against Oravec. Thus, they argue, Oravec’s motion should be denied.
In reply, Oravec argues that the Springfield Plaintiffs’ response to
his motion “merely reiterates the insufficient and conclusory
allegations previously raised in the complaint that was rejected by the
Ninth Circuit, and fails to remedy the deficiencies in her Amended
Complaint [(Second)].” Oravec’s Reply Br. (ECF 103) at 2. He argues
that, despite the Ninth Circuit’s instruction, the Springfield Plaintiffs
“ha[ve] failed to include additional factual allegations that could give
rise to a plausible inference that Oravec’s investigation into
Springfield’s death was inadequate because he was motivated by racial
animus.” Id. at 3. Thus, Oravec argues, the Amended Complaint
(Second) “fails to remedy the deficiencies cited by the Ninth Circuit,
and should again be dismissed.” Id.
Oravec notes that the Springfield Plaintiffs have added some new
factual allegations, but they are not sufficient. He argues that the new
allegations fall into two categories – allegations regarding the scene
where Springfield’s remains were discovered and the subsequent
treatment of his remains, and allegations regarding the Bearcrane
claim that are unrelated to the Springfield investigation or to the
Springfield Plaintiffs’ claims. Id. at 4.
He argues that allegations in the first category “are irrelevant to
the core issue that prompted the Ninth Circuit’s decision[ ]” because
“they provide no additional facts to show that Oravec ‘conducted the
Springfield investigation any differently than he would have conducted
any other investigation.’ ” Id. Respecting the allegations in the second
category, Oravec argues that they are related to the Bearcrane
investigation and “[t]he Ninth Circuit’s decision [that Bearcrane had
stated a claim but that the Springfield Plaintiffs had not] forecloses
[the Springfield Plaintiffs’] attempt to piggyback [their] claim on the
Bearcrane claim.” Id. at 6.
Oravec also argues that the Springfield Plaintiffs have relied on
facts previously alleged in the first Amended Complaint arguing that
they have adequately alleged Oravec’s discriminatory intent. But he
notes that the Ninth Circuit already has considered these allegations
and found them inadequate to state a Bivens claim against Oravec. Id.
at 6-8. Without additional relevant allegations, Oravec argues, those
previously-pled facts remain inadequate. Id. at 8.
Finally, Oravec argues that the Springfield Plaintiffs are asking
the Court to find their factual allegations sufficient by urging it to draw
unreasonable and unwarranted inferences. Id. at 9-10. For example,
he argues, the Springfield Plaintiffs argue that the Court should infer
from allegations that Oravec would not allow a county coroner to
examine the site where Springfield’s remains were found that Oravec
interfered with the criminal investigation of another agency. Oravec
argues that this inference is unwarranted because “it is neither
reasonable nor supported by the alleged fact itself.” Id.
For all of the foregoing reasons, Oravec argues that the Court
should dismiss the Springfield Plaintiffs’ remaining claim, with
prejudice, because they already have had an opportunity to amend yet
again failed to provide additional facts to cure the deficiencies
identified by the Ninth Circuit. Id. at 11.
Rule 12(c) provides that “[a]fter the pleadings are closed – but
early enough not to delay trial – a party may move for judgment on the
pleadings.” In addressing a Rule 12(c) motion, courts “must accept all
factual allegations in the complaint as true and construe them in the
light most favorable to the non-moving party.” Fleming v. Pickard, 581
F.3d 922, 925 (9th Cir. 2009) (citation omitted). Courts properly grant a
Rule 12(c) motion “when there is no issue of material fact in dispute,
and the moving party is entitled to judgment as a matter of law.” Id.
A Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon which relief can be
granted. Cafasso, United States ex rel. v. General Dynamics C4
Systems, Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Thus, the same
legal standard “applies to motions brought under either rule.” Id.
The Court may dismiss a cause of action under Rule 12(b)(6)
either when it asserts a legal theory that is not cognizable as a matter
of law, or when it fails to allege sufficient facts to support an otherwise
cognizable legal claim. SmileCare Dental Group v. Delta Dental Plan of
California, Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). The
Court’s standard of review under Rule 12(b)(6) is informed by Rule
8(a)(2), which requires that a pleading “contain a ‘short and plain
statement of the claim showing that the pleader is entitled to relief.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Rule 8).
Although Rule 8(a)(2) does not require “detailed factual allegations[,]” a
plaintiff must set forth more than bare allegations that the defendant
unlawfully harmed the plaintiff. Id. at 678 (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).
To survive dismissal under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678.
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
Plausibility is not “probability[.]” Rather, plausibility “asks for
more than a sheer possibility that a defendant has acted unlawfully.”
Id. Allegations which permit only an inference of the “mere possibility
of misconduct” do not “show[ ] that the pleader is entitled to relief[.]”
Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). Determining plausibility
is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id.
Applying the foregoing to the Rule 12(c) motion at hand, the
Court must “assume the facts alleged in the [Amended Complaint
(Second)] are true[,]” and consider whether those “factual allegations,
together with all reasonable inferences, state a plausible claim for
relief.” Yakima Valley Memorial Hospital v. Washington State
Department of Health, 654 F.3d 919, 925 (9th Cir. 2011) (quoting
Cafasso, 637 F.3d at 1054).
This Court previously determined that the Springfield allegations,
although “more sparse” than the Bearcrane allegations, were sufficient
to state an equal protection claim against Oravec. ECF 53 at 44-45.
The Ninth Circuit reversed, concluding that the allegations made in the
Springfield Plaintiffs’ first Amended Complaint were insufficient. The
Ninth Circuit explained as follows:
To state a violation of equal protection, the [Springfield Plaintiffs]
must demonstrate both differential treatment and discriminatory
[T]he amended complaint does not contain sufficient nonconclusory allegations of differential treatment as to the
Springfield investigation. There are no allegations that Oravec
conducted the Springfield investigation any differently than he
would have conducted any other investigation. Even viewed
together with the allegations of differential treatment of Native
Americans in general, the allegations as to the Springfield
investigation are “merely consistent with” Oravec’s liability, and
therefore “stop[ ] short of the line between possibility and
plausibility of entitlement to relief.”
ECF 69 at 2, 4 (citations omitted). Thus, this Court must now examine
the Amended Complaint (Second) to determine if the Springfield
Plaintiffs have pled sufficient non-conclusory allegations of differential
treatment as to the Springfield investigation.
Having compared the first Amended Complaint (ECF 21-1) found
insufficient by the Ninth Circuit with the Amended Complaint (Second)
(ECF 93) now before the Court, and applying the holding of the Ninth
Circuit, the Court concludes that the Springfield Plaintiffs again have
stopped short of the line between possibility and plausibility of
entitlement to relief.
Most of the factual allegations respecting the Springfield claims
in the first Amended Complaint remain unchanged in the Amended
Complaint (Second). Compare ECF 21-1 at ¶¶ 33, 34, 35, 35a, 40c, and
40d with ECF 93 at ¶¶ 33, 34, 35, 35a, 40c, and 40d. The only changes
or additions made to the Springfield claims are:
(1) the addition of four subsections to paragraph 35b that allege:
(a) when Springfield’s remains were discovered, a “bow and
arrow and some other items that Mr. Springfield had with
him at the time he disappeared were not found”;
(b) shoes and a “neatly rolled up” belt were found near the
(c) “[g]un shots were heard in the mountains on the day [he]
(d) there was a hole in Springfield’s jacket that “could have
come from a bullet[,]” ECF 93 at ¶¶ 35b (i)-(iv);
(2) that Oravec “refused to interview any person except Mr.
Springfield’s son[,]” id. at ¶ 35c;
(3) that “the FBI” held Springfield’s remains for two years without
conducting any investigatory tests on them, id. at ¶ 35d;
(4) that Oravec “refused” to allow the local coroner to examine the
site or Springfield’s remains, id. at ¶ 35e; and
(5) that Oravec “delayed getting information to the local coroner
so that a death certificate could be issued [for his family to get]
benefits and protections available and due to them[,]” id. at ¶ 41c.
As in the first Amended Complaint, no dates are alleged
regarding when Springfield disappeared, when his remains were found,
or when Oravec was involved in the FBI investigation after the remains
were found. None of the additional factual details contain sufficient
non-conclusory allegations of differential treatment by Oravec as to the
Springfield investigation. And, the Court concludes that none of them,
whether taken separately or in combination, reasonably support an
inference that Oravec was motivated by animus toward Native
Americans during the Springfield investigation.
First, the additional factual allegations about the site where
Springfield’s remains were found merely provide a few more details
regarding the scene where Springfield’s remains were discovered. The
allegation that there was a hole in Springfield’s jacket that “could have”
come from a bullet is speculative and unsupported by additional fact
allegations to support such speculation. The Springfield Plaintiffs
urge the inference that these details made Springfield’s death so
suspicious that it warranted a better investigation. But that inference,
even if it could be made, cannot be said to give rise to another
inference – that is, that Oravec’s alleged failure to adequately
investigate a suspicious death was motivated by racial animus in this
Second, the allegation that the FBI held Springfield’s remains for
two years without testing them also does not support an inference that
Oravec’s actions were motivated by racial animus toward Native
Americans. The allegation does not implicate Oravec’s conduct, but
rather that of the FBI. And even if one could infer from this alleged
fact that Oravec, as an investigator on the case, “did not put any rush
on obtaining [test] results” from Springfield’s remains, it would not be
reasonable, without more, to further infer that his failure to do so was
motivated by racial animus. Additionally, similar allegations were
stated in the previous complaint found to be insufficient. See ECF 21-1
at 19 ¶ 41(c) (alleging that Oravec “failed to positively identify the
remains of Robert Springfield....”).
Third, that Oravec refused to interview anyone other than
Springfield’s son does not give rise to an inference of differential
treatment or that Oravec was motivated by racial animus. There is no
allegation respecting the identities of other witnesses or the content of
what they might say. Thus, the allegations are insufficient to permit
an inference that Oravec’s conduct was motivated by racial animus.
Additionally, allegations regarding Oravec’s failure to interview
witnesses were stated in the previous complaint found insufficient by
the Ninth Circuit. Id. at 16, ¶ 35(b) (alleging failure to investigate
“even though many witnesses were available and desired to be
Fourth, the allegation that Oravec refused to allow the Big Horn
County coroner access to the site where Springfield’s remains were
found or examine the body also does not reasonably permit an inference
that Oravec did so out of animus toward Native Americans. Again,
similar allegations were made in the complaint previously found to be
insufficient. Id. at 18, ¶ 40(c) (alleging that Oravec “actively interfered
with the work of county officials, including the county coroner”).
Similarly, the Springfield Plaintiffs’ description of items found at
the crime scene do not suggest that Oravec was motivated by racial
The Springfield Plaintiffs’ additional argument is also unavailing.
They argue that they have alleged other facts that show Oravec’s
discriminatory intent, including that he: (1) “consistently closed cases
involving Indian victims without adequate investigation, especially
sexual and other assaults involving Indian children and women[,]” ECF
101 at 9; (2) has “been heard to say that female Native American
victims of sexual assault were asking for assault or words to that
effect[,]” id.; (3) interfered with other officials, including the county
coroner, regarding cases involving Native Americans, id. at 9-10; (4)
failed to have Springfield’s remains identified or properly investigated,
id. at 10; and (5) denied Springfield’s family members “benefits and
protections” by “delay[ing] getting information to the local coroner so
that a death certificate could be issued[,]” id. at 10.
The Court is not persuaded, however, because the Springfield
Plaintiffs included these allegations in the first Amended Complaint.
As noted, the Ninth Circuit already considered them and found them
inadequate to state a Bivens claim against Oravec stemming from the
Springfield investigation. See ECF 69 at 4.
In sum, the Amended Complaint (Second) alleges that a Native
American man disappeared while hunting. At some unspecified time
later, his remains were found. The FBI and Agent Oravec allegedly did
an inadequate investigation into the disappearance. In other
situations, the FBI and Oravec have allegedly been motivated by racial
animus toward Native Americans. But there are no plausible nonconclusory allegations that support an inference that Oravec engaged
in racially motivated differential treatment in this case. To hold
otherwise would allow complaints to proceed without factual
allegations that allow the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged in the complaint. It
would allow complaints to proceed where the well-pleaded facts permit
only the possibility of misconduct. Iqbal requires more. 556 U.S. at
For all of the foregoing reasons, the Court concludes, as did the
Ninth Circuit in considering the first Amended Complaint, that the
Springfield Plaintiffs’ allegations as to the Springfield investigation in
the Amended Complaint (Second) are “merely consistent with” Oravec’s
liability but do not “state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678. Thus, Oravec is entitled to judgment on the
Because the Springfield Plaintiffs already have been afforded an
opportunity to amend, the Court concludes that further amendment
would be futile. Accordingly, if this recommendation is adopted,
dismissal of the Springfield Plaintiffs’ claims should be with prejudice.
See Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012) (reviewing a
district court’s decision to dismiss with prejudice for abuse of
Based on the foregoing, IT IS RECOMMENDED that Oravec’s
motion (ECF 96) be DENIED to the extent he seeks partial summary
judgment respecting the Bearcrane claims, but GRANTED to the
extent it seeks judgment on the pleadings respecting the Springfield
claims, as set forth herein.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendations of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 23rd day of January, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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