Roberts v. Elliot et al

Filing 54

ORDER granting (32) Motion for Summary Judgment in case 1:13-cv-00026-SEH; granting (6) Motion for Summary Judgment in case 1:14-cv-00016-SEH in case 1:13-cv-00026-SEH Signed by Judge Sam E Haddon on 3/19/2015. Associated Cases: 1:13-cv-00026-SEH, 1:14-cv-00016-SEH (DED, )

FILED

MAR I 9 2015
Clerk, u.s. District Court

District Of Montana

Helena

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

I CV 13-26-BLG-SEH

IN RE ROBERTS LITIGATION

MEMORANDUM AND ORDER

(This document relates to all
actions)

INTRODUCTION AND BACKGROUND

This matter came on for hearing on March 2, 2015, on the federal defendants'
motion for summary judgment as to all claims in Cause Nos, CV 13-26-BLG-SEH
(Doc. 32) and CV 14-16-BLG-SEH (Doc. 6).1 The federal defendants were
represented by Timothy J, Cavan, Esq. Plaintiff was represented by Elizabeth 1.
Honaker, Esq.

1 This order will refer to filings in CV 13-26-BLG-SEH when referencing documents filed in both cases.

I

FACTS

The following facts are not in dispute:
1.

The plaintiff, Sherri Roberts ("Roberts"), was a resident of Rosebud

County, Montana, and lived within the exterior boundaries ofthe Northern
Cheyenne Indian Reservation. (Doc. 34 at ~ 1.)
2.

Roberts is a non-Indian person. (Doc. 34 at ~ 8.)

3.

In 2009, Roberts became involved in a dispute with the Northern

Cheyenne Tribe regarding the occupancy of Tribal lands. (Doc. 34 at ~ 2.)

4.

Roberts was ultimately charged in Northern Cheyenne Tribal Court

with trespass for allegedly failing to vacate the property. (Doc. 34 at ~ 3.)
5.

Rule 9(B)(3) of the Northern Cheyenne Code of Criminal Rules

provides, in part:
If the defendant is a non-Indian, the Court shall explain
his right to assert lack of personal jurisdiction of the
Court over the defendant in a criminal action. If the
defendant affirmatively elects to waive personal
jurisdiction, the action shall proceed as ifthe defendant
were an Indian. If the non-Indian defendant does not
affirmatively waive the lack ofpersonal jurisdiction, the
action shall become a civil action to exclude the
defendant from the Rcservation. . .. The defendant may
assert or waive lack ofjurisdiction at any time prior to
the start 0 f trial.

(Doc. 34 at ~ 6.)

2

6.

Roberts was served with a copy ofthe complaint and summons, and she

appeared before the Tribal Court with her retained Tribal Court advocate on April
26,2009. (Doc. 34 at ~~ 4,5.)
7.

Roberts pled not guilty to the charge, and requested that the matter be

set for a jury trial. (Doc. 34 at ~ 7.)

8.

Roberts was advised ofher right to assert lack of personal jurisdiction

at the time of her arraignment and elected to waive that objection and consented to
the Tribal Court's jurisdiction.
objections to jurisdiction.

(Doc. 35.)

Roberts later denied waiving

(Doc. 43 at 1 12.)

9.

Roberts was released on her own recognizance. (Doc. 34 at 114.)

10.

Roberts and her advocate appeared before the Tribal Court for a

pretrial conference on May 4, 2009, and again requested a jury trial.

(Doc. 34 at 1

17.)
11.

A status conference to schedule the date and time of trial was set for

July 20, 2010.
12.

(Doc. 34 at 118.)

Roberts was advised that her failure or that of her legal advocate to

appear at the status conference would result in her being declared a fugitive and a
bench warrant for her arrest issued.
13.

(Doc. 34 at 1 19.)

Roberts did not appear at the July 20,2010, status conference.

34 at 120.)
3

(Doc.

14.

A bench warrant was issued by the Tribal Court for Roberts' failure to

appear at the July 20,2010, status conference.
15.

(Doc. 34 at, 21.)

Bureau ofIndian Affairs ("BIN') Law Enforcement Officers on the

Northern Cheyenne Reservation are charged with executing warrants and other
orders from the Tribal Court.
16.

(Doc. 34 at, 22.)

BIA Law Enforcement Officer Hawk Haakanson arrested Roberts on

July 24, 2010, within the external boundaries ofthe Northern Cheyenne
Reservation at approximately 1:03 p.m., and transported her directly to the BIA
Detention Center in Lame Deer, Montana.
17.

Roberts posted bond and was released from custody at 2:30 p.m. on

July24,2010.
18.

(Doc. 34 at ~~ 23,24; Doc. 24 at 23 :4.)

(Doc.34at~27.)

A second bench warrant was issued on October 19,2010, for Roberts

arrest for failing to appear as directed for the status conference set for October 19,
2010, before the Tribal Court.
19.

(Doc. 34 at ~ 32.)

The warrant commanded law enforcement to arrest Roberts and bring

her before the Tribal Court for failure to appear.
20.

(Doc. 34 at ~ 33.)

Roberts was arrested on the warrant within the external boundaries of

the Northern Cheyenne Reservation by BIA Law Enforcement Officer Randy
Elliot on February 19,2011, at approximately 10:34 a.m.
27 at 23: 21.)
4

(Doc. 34 at ~ 34; Doc.

21.

Elliot transported Roberts to the BIA Detention Center, and was

released approximately one-half hour later at 11: 10 a.m.
22.

(Doc. 34 at ~ 37.)

Roberts submitted an administrative tort claim to the Bureau ofIndian

Affairs on February 17,2013.

(Doc. 34 at ~ 50.)

DISCUSSION
Roberts brought this action against BIA Law Enforcement Officers
Haakanson, Elliot, and Scott in their individual capacities alleging that the officers
violated her constitutional rights under the Fourth and Fifth Amendment to the
United States Constitution.

(CV 13-26-BLG-SEH, Doc. I.)

Roberts also

asserted a claim against the United States under the Federal Tort Claims Act
("FTCA") for false arrest, false imprisonment, and negligent infliction of
emotional distress.
consolidated.

(CV 14-16-BLG-SEH, Doc. 1.)

(Doc. 31.)

The two actions have been

The federal defendants have moved the Court for an

order granting summary judgment as to all claims in the consolidated actions.
(Doc. 32.)

Analvsis
I.

Individual capacity claims against the BIA Officers.
The claims against Haakanson, Elliot and Scott are grounded in Bivens v. Six

Unknown Named Agents ofFBI, 403 U.S. 388 (1971) in which the Supreme Court
recognized a private right of action for persons deprived of constitutional rights by
5

federal employees.

Roberts alleges that her arrests by BIA officers on the Tribal

warrants were unconstitutional because the Tribal Court lacked jurisdiction to
prosecute her.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) firmly establishes that

qualified immunity shields government officials performing discretionary
functions "from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known."

The protections afforded by that immunity are broad, and

may insulate a defendant's conduct even if a plaintiffs rights were violated.

See

McCullough v. Wyandanch Union Free School Dist., 187 F.3d 272,277 (2d Cir.

1999) ("[T]he whole point of the qualified immunity defense is to allow a
defendant to be dismissed out of the case even if a right was actually violated ...
.").

The doctrine precludes an award of damages for that violation so long as the

official action did not cross a constitutional or statutory bright line.

See Davis v.

Scherer, 468 U.S. 183, 190 (1984); See also Mitchell v. Forsyth, 472 U.S. 511, 526
(1985); Anderson v. Creighton, 483 U.S. 635, 640 (1987).

The question is not whether judges or constitutional scholars could divine
the parameters of the right plaintiff seeks to redress.
U.S. 603, 615 (1999).

See Wilson v. Layne, 526

"If the law did not put the officer on notice that his conduct

would be clearly unlawful, summary judgment based on qualified immunity is
6

appropriate."

Saucier v. Katz, 533 U.S. 194, 202 (2001).

A two-part process for analyzing the application of qualified immunity is
established in Saucier.

The initial inquiry focuses on whether the officer's

conduct violated a constitutional right.

Id.

"[I]f a violation could be made out

on a favorable view of the parties' submissions," then "the next, sequential step is
to ask whether the right was clearly established."

Saucier, 533 U.S. at 201.

In

making that analysis, the Courts are "permitted to exercise their sound discretion in
deciding which ofthe two prongs ... should be addressed first in light ofthe
circumstances in the particular case at hand."

Pearson v. Callahan, 555 U.S. 223,

236 (2009).
The Court finds that the individual federal defendants are entitled to
qualified immunity on the basis of the second prong of the analysis.

That is, the

law was not clearly established at the time of Roberts , arrest that the officer's
conduct was unlawful.

The arrest warrants were facially valid when issued and

delivered to the officers for execution.
the Northern Cheyenne Tribal Court.

Each was signed by a judicial officer of
Each commanded the officers to arrest

Roberts and bring her before the court for failure to appear.

The officers were

thus charged with the duty to execute a facially valid order.
In order for Roberts' claim under Bivens to survive, the law must have been
sufficiently clear to place a reasonable officer on notice that the Tribal Court acted
7

in complete absence ofjurisdiction in issuing the warrants, and that in carrying out
the Tribal Court mandate to serve the warrants, reasonable officers would have
known they were engaging in an unlawful act.

Existing law permits no such

conclusions, notwithstanding Roberts' contention that the law was clearly
established that the Tribal Court lacked criminal jurisdiction over non-Indians
under the authority of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)
and that the officers had personal knowledge that Roberts was a non-Indian.
Roberts' argument fails to take into account the Northern Cheyenne Tribal
Court's claim of capacity to exercise jurisdiction over non-Indians by consent.

It

is not necessary, however, for this Court to decide the question of whether a tribal
court may exercise such jurisdiction.

Rather, the issue is whether the law was so

clearly established at the time of Roberts , arrests that a reasonable officer would
have known that the tribal court was wholly without jurisdiction and that he was
engaging in a null and void act.
that conclusion.

Existing law is not sufficiently clear to warrant

The jurisdictional issue remains.

The officers were presented with facially valid warrants, they were charged
with the responsibility to execute the warrants, and they had a reasonable basis to
believe in the validity of the warrants and in the lawfulness oftheir actions in
executing the warrants.

They are entitled to qualified immunity for the personal

capacity claims brought against them under the Bivens doctrine.
8

II.

Claims against the United States under the FTCA.

Roberts correctly concedes her FTCA claims based on her July 24, 2010,

arrest are barred by the applicable Statute of Limitations. 28 U.S.c. § 2401(b).
The United States likewise is entitled to summary judgment on Roberts' FTCA
claims based on the arrest of February 19,2011.
The FTCA waives sovereign immunity for certain torts committed by
federal employees, and provides "[t]he United States shall be liable ... in the same
manner and to the same extent as a private individual under like circumstances ...
." (28 U.S.C. § 2674) "if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred."
U.S.c. § 1346(b)( I).

28

Only if a private person would be liable under Montana law

in these circumstances for false arrest and imprisonment, and for negligent
infliction of severe emotional distress would liability be present.

See FDIC v.

Meyer, 510 U.S. 471 (1994).

To establish a claim of false arrest and false imprisonment under Montana
law, a plaintiff must demonstrate "[ I] the restraint of an individual against his will,
and [2] the unlawfulness of the restraint."
274 P.3d 740, 745 (Mont. 2012).

Kichnet v. Butte-Silverbowl County,

Roberts cannot establish the second element.

Probable cause for arrest is a complete defense to claims of false arrest and
false imprisonment.

Id. (internal citations omitted).
9

Therefore, an arrest made

under a warrant issued following a court's determination of probable cause is a
complete defense to a false imprisonment claim.

ld.

The arrest on February 19, 2011, followed the Tribal Court's determination
that probable cause existed to arrest Roberts for her failure to appear before the
court as ordered.

The warrant was valid on its face.

The officer had a

reasonable belie fin the validity of the warrant, and in the lawfulness of his actions
in executing the order.

A private individual could not be held liable in these

circumstances under Montana law.

The United States

is likewise not liable under

the FTCA.
The same is true with respect to Roberts' claim of negligent infliction of
emotional distress.

The Montana Supreme Court has recognized an independent

claim for negligent infliction of emotional distress where a plaintiff suffers
"serious or severe emotional distress" as a "reasonably foreseeable consequence of
the defendant's negligent or intentional act or omission."

Indep. Press, Inc., 896 P.2d 411, 418 (Mont. 1995).

Sacco v. High Country

Officer Elliot's action in

executing the Tribal Court warrant from October 19, 2010, was not a negligent or
wrongful act or omission.

He executed a facially valid warrant consistent with

his duty as a law enforcement officer.

He had a reasonable basis to believe that

the warrant and his actions were valid and lawful.

to

ORDERED:
1.

The federal defendants' motion for summary judgment (CV

13-26-BLG-SEH, Doc. 32; CV 14-16-BLG-SEH, Doc. 6.) is GRANTED.
2.

The plaintiffs claims in Cause Nos. CV 13-26-BLG-SEH and CV

14-16-BLG-SEH are dismissed, with prejudice.
3.

The Clerk is directed to enter judgment

III

favor of the federal

defendants in each actionirdinglY.
DATED this

/9

ay of March, 2015.

United States District Judge

11