Cole et al v. Federal Bureau of Investigation et al

Filing 138

FINDINGS AND RECOMMENDATIONS re 126 MOTION for Summary Judgment filed by Matthew Oravec. IT IS RECOMMENDED that Oravec's summary judgment motion (ECF 126) be GRANTED. Signed by Magistrate Judge Carolyn S Ostby on 6/26/2014. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
EARLINE COLE, as an individual
and as personal representative of
the ESTATE OF STEVEN
BEARCRANE, et al.,

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Plaintiffs,
v.
MATTHEW ORAVEC, in his
individual capacity,
Defendant.
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CV-09-21-BLG-SEH-CSO
FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

Plaintiffs claim that FBI Special Agent Matthew Oravec
(“Oravec”), motivated by racial animus toward Native Americans,
refused or failed to adequately investigate the death of Steven
Bearcrane (“Bearcrane”) in violation of equal protection rights. The
remaining Plaintiffs are Bearcrane’s Personal Representatives who,
together with others, originally brought this action generally alleging
discrimination against Native Americans. Cmplt. (ECF 1).1 All claims
“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.
1

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and Defendants have been dismissed except the equal protection
Bivens2 claim against Oravec brought by Plaintiffs Earline Cole and
Cletus Cole (“the Coles”) as personal representatives of the Estate of
Steven Bearcrane. See ECF 56, 69, and 122.
Now pending is Oravec’s Motion for Summary Judgment. ECF
126. 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).
I.

BACKGROUND
The Court described the pertinent factual background, including

Plaintiffs’ allegations and claims, in its Findings and Recommendations
filed on May 25, 2010. ECF 53 at 2-9. The Court set forth the
pertinent procedural background, up to January 23, 2014, in its
Findings and Recommendations issued on that date. ECF 119 at 3-6.
The Court will not repeat background information here except as
necessary for clarity.

See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2

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II.

SUMMARY OF PARTIES’ ARGUMENTS
Oravec advances two principal arguments in seeking summary

judgment on the only remaining claim. First, he maintains that he is
entitled to qualified immunity from liability. Second, he argues that
the Coles cannot prove that he acted with a discriminatory motive,
which is an essential element of an equal protection violation claim.
Respecting qualified immunity, Oravec argues that his conduct
did not violate a constitutional right. Oravec’s Opening Br. (ECF 127)
at 12-21. He notes that the discriminatory acts that he is alleged to
have committed occurred after Bearcrane’s death. He argues that
Ninth Circuit authority provides that there can be no violation of
Bearcrane’s constitutional rights if the alleged acts giving rise to the
claimed violation occurred after Bearcrane’s death. Id at 15-20. Thus,
Oravec argues, the Coles, who are suing him solely in their capacity as
personal representatives of Bearcrane’s estate, cannot establish the
violation of a clearly-established constitutional right. Id.
Next, Oravec argues that even if the Coles’ claim survives the
foregoing argument, he is entitled to qualified immunity “because his

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particular actions violated no clearly-established right.” Id. at 21. He
argues that there is not now – and was not in 2005 when events giving
rise to this action occurred – a clearly-established “standard for
assessing the adequacy of police services when applying equal
protection scrutiny to a homicide investigation.” Id. (emphasis
omitted). Oravec maintains that it is not enough for the Coles to allege
or even offer some proof of discriminatory intent. Rather, he argues,
they must show that: (1) police services provided to Bearcrane were
“clearly inadequate[ ]” by either identifying “a similarly-situated person
whose treatment was appreciably better than his own[ ]”; or (2)
Bearcrane “was denied services otherwise made available to the
general public and that the denial was due to some arbitrary or
otherwise constitutionally impermissible reason.” Id. at 22-23. Here,
Oravec argues, the Coles can show neither and he is entitled to
qualified immunity. Id. at 22-32.
Respecting Oravec’s second argument for summary judgment in
his favor – that the Coles “have failed to demonstrate the required
discriminatory motive element necessary to prove an equal protection

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violation[ ]” – Oravec argues that the Coles “rely on only conclusory
allegations derived from inadmissible hearsay and rumor to prove this
vital element.” Id. Because the Coles cannot rely on inadmissible
evidence to demonstrate a genuine issue of material fact, Oravec argues
that he is entitled to summary judgment on the remaining claim. Id. at
33-35.
In response, the Coles argue that Oravec has waived reliance on
qualified immunity. Coles’ Resp. Br. (ECF 132) at 30-32. They
maintain that: (1) Oravec has not timely brought this “new theory of
qualified immunity” and thus is in violation of the purpose of the
doctrine, which is “to prevent federal employees from going to trial on
insubstantial matters[,]” id. at 30; (2) Oravec simply waited too long to
file his summary judgment motion and thus waived qualified
immunity, id. at 30-31; (3) allowing Oravec to again assert qualified
immunity “is bad public policy[ ]” because he has raised it before and
has had “ample opportunity to raise the present qualified immunity
issues[,]” id. at 31; (4) when federal agents are allowed “to repeatedly
file motions for qualified immunity [it] creates an insurmountable

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barrier to citizen suits seeking to vindicate constitutional rights ...
[because] [t]he United States has unlimited funds and can file the same
motions over and over again[,]” id.; (5) Oravec did not need to wait until
after conducting discovery to file his motion and could have “raised the
issue of whether deceased persons, through representatives, can
vindicate constitutional violations back four years ago[,]” id. at 32; and
(6) Oravec could have earlier “raised the issue of whether the courts
must define an adequate investigation before a law enforcement officer
is deemed to know that he has violated equal protection provisions of
the constitution[,]” id.
The Coles next argue that if Oravec has not waived qualified
immunity, he nevertheless is not entitled to qualified immunity for two
reasons. First, they maintain that there was a constitutional violation
in this case. They argue that: (1) “constitutional violations may be
raised under Bivens by personal representatives of dead individuals[,]”
id. at 7; (2) Oravec cited no authority for his argument that personal
representatives have only those rights that a decedent had when alive,
id. at 8-9; (3) the law recognizes that “deceased persons may have

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rights that can be asserted even after death[,]” such as a right not to be
defamed or libeled after death, id. at 9-10; (4) the Ninth Circuit has not
limited the definition of “person” to include only living persons – except
in actions brought under 42 U.S.C. §§ 1983 and 1985 – and since this is
a Bivens action, the exception does not apply, id. at 10-12; (5) Bivens
actions “are different creatures than section 1983 cases[ ]” in that the
term “person” “has a very expansive reach” under federal law, id. at 13;
and (6) in Bivens cases claiming violations of the U.S. Constitution, “the
vindication of the right” is more important than “the source of the
challenge[,]” id. at 13-16.
Second, the Coles argue that the constitutional right involved in
this case was clearly established at all relevant times, thus depriving
Oravec of qualified immunity. They argue that the constitutional right
at issue in this action is generally equal protection and, more
specifically, “the right to have law enforcement services provided to
Native Americans on an equal basis with non-Indians.” Id. at 18. The
Coles argue that Oravec’s position – that the right to equal provision of
law enforcement services cannot be established absent a universal

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standard for an “adequate” investigation – “is simply asking too much
under the doctrine of qualified immunity.” Id. at 20. They argue that
“a right can be clearly established despite a lack of factually analogous
preexisting case law, and officers can be on notice that their conduct is
unlawful even in novel factual circumstances.” Id.
The Coles further argue that even if the Court requires that there
be “contours” of adequate investigations, fact issues preclude summary
judgment. They argue that Oravec himself “set out the contours of
adequacy” by testifying at his deposition that his background as a
certified public accountant makes him “thorough” and “detail oriented.”
Id. But, they argue, factual disputes exist respecting whether Oravec
adhered to the contours of adequacy that he set, including whether he:
(1) investigated the killer’s self-defense theory; (2) failed to conduct or
have conducted basic investigative tests; and (3) wrote a summary of
his investigation that distorted or misstated facts that led to the grand
jury failing to indict the killer. Id. at 20-28.
Finally, the Coles argue that they have shown that Oravec acted
with malice toward Native Americans. They argue that “there is

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sufficient evidence in the record to show malice, or, at the least, to
create genuine issues of fact regarding malice.” Id. at 28. The Coles
maintain that the following evidence supports their argument: (1) “the
biased nature” of the “prosecution letter” that Oravec prepared for the
assistant United States attorney assigned to the case; (2) “Oravec’s
apparent need to lie about his actions in investigating Bearcrane’s
murder ... to cover up his discriminatory actions” by, for example,
denying that he excluded the BIA from the investigation when evidence
exists that he did; and (3) admissible testimony by witnesses who heard
Oravec make statements demonstrating animus toward Native
Americans. Id. at 28-30.
III. 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

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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,

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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).
IV.

DISCUSSION
A.

Has Oravec Waived Qualified Immunity?

The Court must first address as a threshold matter whether
Oravec has waived reliance on qualified immunity. Oravec first raised
the affirmative defense in pre-Answer motions to dismiss. ECF 14 at 1;
ECF 28 at 2. He subsequently raised qualified immunity as an
affirmative defense in his Answer. ECF 94 at 34. Finally, Oravec filed
the pending motion for partial summary judgment based on qualified
immunity before expiration of the motions deadline set by the Court.
See Text Order (ECF 120) (extending motions deadline to March 21,
2014). Plaintiffs can claim no surprise by Oravec’s reliance on the
qualified immunity defense.
The Ninth Circuit has not directly addressed whether a defendant
waives qualified immunity where, as here, the defendant previously
sought dismissal based on qualified immunity but later seeks summary

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judgment under a different qualified immunity theory. Other Circuit
Courts of Appeal have concluded that district courts have discretion to
find waiver of qualified immunity if a defendant fails to act with due
diligence or asserts qualified immunity for dilatory purposes. See
Guzman–Rivera v. Rivera–Cruz, 98 F.3d 664, 668 (1st Cir. 1996); Eddy
v. Virgin Islands Water and Power Authority, 256 F.3d 204, 209-10 (3d
Cir. 2001) (noting that a district court “must exercise its discretion and
determine whether there was a reasonable modicum of diligence in
raising the defense ... [and] whether the plaintiff has been prejudiced
by the delay.”); English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994);
Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2001).
A district court may, however, permit successive motions for
summary judgment on qualified immunity. Hoffman v. Tonnemacher,
593 F.3d 908, 910 (9th Cir. 2010) (citing Knox v. Southwest Airlines, 124
F.3d 1103, 1106 (9th Cir. 1997) (citing Behrens v. Pelletier, 516 U.S. 299
(1996))). The discretion afforded district courts in deciding whether to
allow successive motions asserting qualified immunity is informed by
such factors as: (1) waste of time, Eddy, 256 F.3d at 209 (citing

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Guzman-Rivera, 98 F.3d at 667); (2) prejudice to the plaintiff, id. (citing
Guzman-Rivera, 98 F.3d at 667); (3) “concerns about witnesses
becoming unavailable, memories fading, attorneys fees accumulating,
and imposing additional costs on the court system[,]” id. (citing
Guzman-Rivera, 98 F.3d at 667); (4) scheduling imposed by the court,
id. at 209-10; (5) defendant’s failure to exercise due diligence, id. (citing
English, 23 F.3d at 1090); and (6) defendant’s assertion of the defense
for dilatory purposes, id. (citing English, 23 F.3d at 1090).
After considering the foregoing factors, the Court concludes that
Oravec has not waived reliance on qualified immunity. First, it is true
that raising the issue late has wasted time. This matter has been
pending for more than five years and the dispositive legal issue
addressed below could have been raised at any point in the proceedings.
But this relatively lengthy time arguably is attributable to the case’s
complexity and rather convoluted procedural history. For example,
when the Amended Complaint was filed more than six months after the
original Complaint, it included multiple plaintiffs and defendants and
five claims for relief. ECF 21. Through motions practice that

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ultimately led to appeals to the Ninth Circuit (ECF 59 and 60) and a
petition for a writ of certiorari with the United States Supreme Court
(ECF 75), the parties and claims were substantially narrowed to those
parties and the remaining claim now before the Court.
But part of the qualified immunity theory now before the Court
presents purely a question of law – that is, whether Oravec’s actions
occurring after Bearcrane’s death give rise to a violation of Bearcrane’s
constitutional rights. Either party could have – and arguably should
have – raised this issue long ago. That Oravec did not raise it earlier
has wasted the time of this Court, the federal appellate courts, and the
parties. This factor weighs in support of waiver.
Second, respecting prejudice to Plaintiffs from Oravec’s delay in
raising the issue, the Court concludes that any prejudice is neither
unfair nor severe enough to result in waiver. While the Coles
undoubtedly have suffered some prejudice from having to address
Oravec’s argument this far into the litigation, the prejudice is minimal
considering the number and scope of other issues both parties raised
and addressed through earlier motions and discovery. And, against

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this prejudice the Court considers the purposes of the doctrine of
qualified immunity. See discussion infra at 17.
Also, the Coles have not persuasively argued that Oravec’s
qualified immunity assertion has unfairly prejudiced them in any
specific way. Although their brief generally alludes to the
“insurmountable barrier to citizen suits seeking to vindicate
constitutional rights[ ]” (ECF 132 at 31) occasioned by multiple motions
asserting qualified immunity, they do not contend that they have faced
such a barrier. Similarly, while they decry the United States’
“unlimited funds” that permit the filing of “the same motions over and
over again[,]” the Coles do not expressly argue or present evidence
indicating that they have been stymied in their ability to prosecute this
action. Id. Although the Coles, as noted, have suffered some prejudice
by Oravec’s delay in raising this issue, on the current record, the Court
cannot conclude that the Coles will be unfairly prejudiced should the
Court conclude that Oravec has not waived qualified immunity. This
factor weighs against waiver.

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Third, the Coles have neither argued nor presented evidence
showing that the present qualified immunity defense will adversely
affect witnesses’ availability, witnesses’ memories, amounts of
attorneys fees, or court system costs. This factor weighs against
waiver.
Fourth, as noted, Oravec filed the instant motion before the
motions deadline to which the parties agreed. ECF 118 (unopposed
motion to stay scheduling order’s summary judgment deadline) and
ECF 120 (text order granting unopposed motion and setting motions
deadline of March 21, 2014). This factor weighs against waiver.
Fifth, although, as noted, Oravec lacked diligence in failing to
raise the issue earlier, the Court is unpersuaded by the Coles’
suggestion that Oravec filed the instant motion for a dilatory purpose.
As discussed above, Oravec’s lack of diligence likely resulted from this
matter’s complexity and multiple parties and claims at its inception.
Those circumstances, coupled with the case’s lengthy and timeconsuming procedural history, render the timing of Oravec’s motion
more understandable. Thus, this factor, too, weighs against waiver.

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In balancing the foregoing considerations, the Court concludes
that Oravec has not waived his reliance on qualified immunity at this
stage in the proceedings. Having so concluded, the Court next turns to
the question of whether qualified immunity shields Oravec from
liability against the sole remaining claim.
B.

Is Oravec Entitled to Qualified Immunity?

The United States Supreme Court recently reaffirmed that “[t]he
doctrine of qualified immunity protects government officials from
liability for civil damages ‘unless a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged
conduct.’” Wood v. Moss, ___ U.S. ___, 134 S.Ct. 2056, 2066-67 (2014)
(quoting Ashcroft v. al–Kidd, 563 U.S. ___, ___, 131 S.Ct. 2074, 2080
(2011)). “Requiring the alleged violation of law to be ‘clearly
established’ ‘balances ... the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their
duties reasonably.’” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231

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(2009)). The “dispositive inquiry” “is whether it would [have been] clear
to a reasonable officer” in the agents’ position “that [their] conduct was
unlawful in the situation [they] confronted.” Id. (quoting Saucier v.
Katz, 533 U.S. 194, 202 (2001)).
The Ninth Circuit recently restated familiar guidance for
analyzing qualified immunity in the instant case’s context:
At the summary judgment stage, [courts] ask whether the
facts, “[t]aken in the light most favorable to the party
asserting the injury,” show that the officers violated a
constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121
S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on
other grounds by Pearson v. Callahan, 555 U.S. 223, 129
S.Ct. 808, 172 L.Ed.2d 565 (2009). If the officers violated a
constitutional right, [courts] determine ... “whether federal
rights asserted by a plaintiff were clearly established at the
time of the alleged violation.” Martinez v. Stanford, 323
F.3d 1178, 1183 (9th Cir. 2003).
George v. Edholm, ___ F.3d ___, ___ 2014 WL 2198581 at *6 (9th Cir.,
May 28, 2014). Thus, courts in the Ninth Circuit
employ a two-step test: first, we decide whether the officer
violated a plaintiff’s constitutional right; if the answer to
that inquiry is “yes,” we proceed to determine whether the
constitutional right was “clearly established in light of the
specific context of the case” at the time of the events in
question. Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)
(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,
150 L.Ed.2d 272 (2001)), cert. denied, ___ U.S. ___, 130 S.Ct.
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1047, 175 L.Ed.2d 881 (2010). The Supreme Court has
instructed that we may “exercise [our] sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first.” Pearson, 129 S.Ct. at
818.
Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011).
Consistent with the foregoing authority, the Court here begins by
considering whether there occurred a violation of a constitutional right.
If no constitutional right was violated, immunity attaches and the
inquiry ends. Saucier, 533 U.S. at 201; Aguilera v. Baca, 510 F.3d
1161, 1167 (9th Cir. 2007). The precise question in the case before the
Court, then, is whether Oravec’s acts, which undisputedly occurred
after Bearcrane’s death, give rise to a violation of Bearcrane’s
constitutional right to equal protection. Put another way, the Court
must consider whether a decedent has constitutional rights that may be
violated from acts occurring after death.
In Guyton v. Phillips, 606 F.2d 248 (9th Cir. 1979), the Ninth
Circuit addressed this issue in a case similar to this case, describing it
as follows:
This appeal involves the question of whether a claim may be
stated under the Civil Rights Act for a violation of the civil
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rights of a deceased person resulting from the alleged
actions of public officials after the death of the decedent, in
covering up and failing to prosecute properly the persons
who killed the decedent.
Id. at 249.
The court in Guyton addressed an appeal of a district court’s
dismissal of claims brought by the administrator of a decedent’s estate
against some named defendants alleged to have: (1) covered up
circumstances surrounding the decedent’s death; and (2) interfered
with a prosecution related to the death. In affirming the district court,
the Ninth Circuit concluded:
We find that the Civil Rights Act, 42 U.S.C. §§ 1983 and
1985, does not provide a cause of action on behalf of a
deceased based upon alleged violation of the deceased’s civil
rights which occurred after his death. A “deceased” is not a
“person” for the purposes of 42 U.S.C. §§ 1983 and 1985, nor
for the constitutional rights which the Civil Rights Act
serves to protect.
Id. at 250.
In reaching its conclusion, the Ninth Circuit reasoned that: (1)
“‘person’, as used in a legal context, defines a living human being and
excludes a corpse or a human being who has died[,]” id. (citations
omitted); (2) nothing in the Civil Rights Act’s legislative history
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indicates that Congress intended to deviate from the general meaning
of the word “person” as it is used in 42 U.S.C. § 1983, id.; (3) no case
law suggests that Civil Rights Act protections extend to deceased
persons, id.; and (4) pertinent cases, rather than extending protections
to deceased persons, actually “suggest that the definition of ‘person’ for
purposes of protection of constitutional rights is limited only to a living
human being[,]” id. (noting that the Supreme Court, in Roe v. Wade,
410 U.S. 113, 158 (1973), held that a fetus is not a “person” within the
Fourteenth Amendment’s meaning and adding that, under McGarvey v.
Magee-Womens Hosp., 340 F.Supp. 751 (W.D. Pa 1972), aff’d 474 F.2d
1339 (3d Cir. 1973), a fetus is not a “person” under the Civil Rights
Act).
Finally, the Ninth Circuit in Guyton expressly rejected an
argument similar to one the Coles raise here. The court in Guyton
explained:
Appellant urges us to extend the reach of the Civil Rights
Act to actions which occur after the death of the person
whose civil rights are allegedly violated, on the theory that
if the Civil Rights Act is to be given the scope that its origins
dictate, it must be interpreted broadly. We decline to accept
appellant's argument. There is no indication that Congress
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intended the Civil Rights Act to provide a cause of action for
representatives to recover on behalf of a deceased for actions
committed after the deceased’s death.
Id. at 251.
The Court concludes that Guyton is controlling authority for the
issue presented in this case. The Ninth Circuit in Guyton clearly
concluded that the Civil Rights Act does not provide a cause of action to
a decedent for alleged violation of the decedent’s civil rights that
occurred after the decedent’s death. As noted, the Court reasoned, in
part, that “[a] ‘deceased’ is not a ‘person’ for the purposes of 42 U.S.C.
§§ 1983 and 1985, nor for the constitutional rights which the Civil
Rights Act serves to protect.” Id. at 250 (emphasis added). Other
circuits have agreed. See, e.g., Riley v. St. Louis County of Mo., 153
F.3d 627, 632, n. 1 (8th Cir. 1998) (holding that section 1983 does not
provide a cause of action on behalf of a deceased for events occurring
after death); Silkwood v. Kerr-McGee Corp, 637 F.2d 743, 749 (10th Cir.
1980) (rejecting a Bivens claim, holding: “We agree with the Ninth
Circuit that the civil rights of a person cannot be violated once that
person has died.”)

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Applying Guyton’s holding to this case, the Court concludes that
Bearcrane does not have a cause of action for violation of his
constitutional rights. Oravec’s acts alleged to give rise to such a
violation occurred after Bearcrane’s death. Under Guyton, at the time
of Oravec’s acts, the decedent Bearcrane had no constitutional rights
that could be violated. Id.; see also Judge v. City of Lowell, 160 F.3d 67,
76 n.15 (1st Cir. 1998), overruled on other grounds by Educadores
Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004)
(citing Guyton and noting that because actions forming basis of
decedent’s claim occurred after decedent’s death, decedent had no
rights of which he could be deprived).
In light of the foregoing controlling Ninth Circuit authority, the
Court finds the Coles’ arguments opposing summary judgment
unpersuasive. Their attempt to distinguish their Bivens claim and
Guyton’s holding fails. Guyton included a Bivens claim and the Ninth
Circuit noted that it “would be coextensive with, and an alternative
remedy to, that provided by 42 U.S.C. §§ 1983 and 1985 .... The
constitutional rights asserted are the same.” Guyton, 606 F.2d at 249,

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n.1. Thus, the Ninth Circuit made no distinction between the
constitutional rights asserted based upon whether the alleged
wrongdoer was a state actor, as in a § 1983 claim, or a federal actor, as
in a Bivens claim.
Having concluded that no violation of a constitutional right
occurred, the Court need not consider whether such constitutional right
was “clearly established in light of the specific context of the case” at
the time of the events in question. Immunity attaches and the Court’s
qualified immunity inquiry ends. Saucier, 533 U.S. at 201; Aguilera v.
Baca, 510 F.3d 1161, 1167 (9th Cir. 2007). Because “[q]ualified
immunity is an immunity from suit rather than a mere defense to
liability[,]” Pearson, 555 U.S. at 237 (internal quotations and citations
omitted), Oravec is entitled to summary judgment in his favor on the
Coles’ remaining claim against him.
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Oravec’s

summary judgment motion (ECF 126) be GRANTED.

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NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation 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 26th day of June, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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