Hiibel et al v. Hiner

Filing 20

ORDERED that D's # 10 Motion to dismiss is DENIED as moot. IT IS FURTHER ORDERED that D's # 12 Amended motion to dismiss is GRANTED. Ps' complaint is DISMISSED. IT IS FURTHER ORDERED that the clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 7/20/2010. (Copies have been distributed pursuant to the NEF - DRM)

Hiibel et al v. Hiner

Doc. 20

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) ) ) ) ) ) ) ) ) ) ) ) )

MARY S. HIIBEL and THEODORE J. HIIBEL,

3:10-cv-0029-LRH-RAM ORDER

ARLAN G. HINER of the BUREAU OF LAND MANAGEMENT, Defendant.

Before the court is defendant Arlan G. Hiner's ("Hiner") motion to dismiss filed on June 1, 2010, (Doc. #101) and defendant Mike Truden's ("Truden") amended motion to dismiss filed on June 4, 2010. Doc. #12. Plaintiffs Mary S. Hiibel and Theodore J. Hiibel ("the Hiibels") filed an opposition (Doc. #16) to which Truden replied (Doc. #19). I. Facts and Procedural History On January 21, 2008, fifty-one (51) head of cattle owned and branded by the Hiibels were impounded by the Winnemucca Field Office of the Bureau of Land Management for alleged trespassing. Defendant Hiner was the Assistant Field Manager for that office at the time the

Refers to the court's docketing number.

Dockets.Justia.com

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trespass citation was issued.2 Defendant Truden is the current Assistant Field Manager, and was in this position at the time the complaint was filed. On January 15, 2010, the Hiibels filed a complaint in federal court alleging a violation of their procedural due process rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. #3. The Hiibels brought their complaint against Truden in his official capacity as the Assistant Field Manager for the Winnemucca field office. II. Legal Standard In considering "a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). However, a court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in a plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). However, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels, conclusions, and a formulaic recitation of the elements of the cause of action. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations omitted).

Defendant Hiner was dismissed as a defendant on May 28, 2010, and defendant Truden was inserted as the defendant to accept service of process. Doc. #9. Accordingly, Hiner's motion to dismiss shall be denied as moot as he has already been terminated as a part to this action.

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III.

Discussion Under Bivens, the Supreme Court created a remedy for violations of constitutional rights

committed by federal officials acting in their individual capacities. See Bivens, 403 U.S. 388. In a Bivens action, a plaintiff seeks to import personal liability upon a federal official based on alleged constitutional infringements he or she committed against the plaintiff. See, e.g., Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir. 2003). However, "a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity." Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). "This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity." Consejo De Desarrollo Economico De Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (citing Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000). Here, the Hiibels have brought a Bivens action against Truden in his official capacity as the Assistant Field Manager for the BLM field office that impounded the Hiibel's cattle. Doc. #3. The Hiibels do not claim damages based on any past unconstitutional acts of Truden acting in his individual capacity. Therefore, the court lacks subject matter jurisdiction over this action because the United States has not consented to its officials being sued in their official capacities. See McCarthy v. United States, 85 F.2d 558, 560 (9th Cir. 1988). \\\ \\\ \\\ \\\ \\\ \\\ \\\ 3

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IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. #10) is DENIED as moot. IT IS FURTHER ORDERED that defendant's amended motion to dismiss (Doc. #12) is GRANTED. Plaintiffs' complaint is DISMISSED. IT IS FURTHER ORDERED that the clerk of court shall enter judgment accordingly. IT IS SO ORDERED. DATED this 20th day of July, 2010.

__________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE

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