Yowell v. Abbey et al

Filing 86

ORDER denying 69 Motion to Stay; granting 75 Motion for Leave to File Second Amended Complaint. Signed by Chief Judge Robert C. Jones on 12/19/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RAYMOND D. YOWELL,

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Plaintiff,
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v.
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ROBERT ABBEY et al.,
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Defendants.
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___________________________________ )

3:11-cv-518-RCJ-VPC
ORDER

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Currently before the Court are Federal Defendants’ Motion for Stay of Injunction
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Pending Appeal Pursuant to Rule 62(c), or in the Alternative, for Order Requiring Security
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Pursuant to Rule 65(c) (#69) and Plaintiff’s Motion for Leave to File a Second Amended
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Complaint (#75).
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BACKGROUND
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On July 20, 2011, then pro se Plaintiff Raymond D. Yowell (“Plaintiff”) filed a civil rights
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complaint pursuant to 42 U.S.C. § 1983, 25 U.S.C. § 478, and Bivens v. Six Unknown Named
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Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
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in this Court. (Compl. (#1) at 1). In the complaint, Plaintiff sued Robert Abbey1, Helen
Hankins2, Department of the Treasury Financial Management Services (“Treasury-FMS”)3,

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Abbey is currently the National Director of the Bureau of Land Management (“BLM”),
but was the Nevada State Director of BLM in 2002. (Mot. to Dismiss (#4) at 3).
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Hankins is currently the Colorado State Director of BLM, but was the BLM Field
Manager for the Elko Field Office in 2002. (Mot. to Dismiss (#4) at 3).
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Treasury-FMS is an institutional component of the Department of Treasury and
manages the Treasury Offset Program which offsets federal payments to those persons and
entities who are indebted to a federal agency. (Mot. to Dismiss (#4) at 3).

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Allied Interstate Inc., Pioneer Credit Recovery, Inc., The CBE Group, Inc., Cook Utah of

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Duchesne, Jim Pitts4 , Jim Connelley5, Dennis Journigan6, and Mark Torvinen (collectively

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“Defendants”). (Id. at 2-3, 6).

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The complaint alleged the following. (Id. at 7). Plaintiff was a Shoshone Indian, ward

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of the United States, and a member of the Te-Moak Tribe of the Western Shoshone Indians

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of Nevada. (Id.). He was a cattle rancher. (Id.). Throughout his life, Plaintiff let his livestock

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graze on the “historic grazing lands associated with the South Fork Indian Reservation.” (Id.).

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During the 1980s, the BLM attempted to get an Indian grazing association to sign a permit to

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graze livestock, but never approached Plaintiff directly. (Id.). Plaintiff never obtained a permit

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to graze his livestock because the proclamation that established the South Fork Indian

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Reservation, pursuant to the Indian Reorganization Act, stated that the reservation came

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“together with all range, and ranges, and range watering rights of every name, nature, kind and

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description used in connection” with the described boundaries of the reservation. (Id.).

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Plaintiff alleged that he was only exercising his treaty guaranteed vested rights to be a

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herdsman and to graze his livestock on the ranges. (Id.).

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The complaint alleged the following. (Id.). In the 1990s, the BLM alleged that Plaintiff

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was trespassing. (Id.). On May 24, 2002, Defendants assembled where Plaintiff’s livestock

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were grazing, gathered Plaintiff’s livestock, and seized the livestock without a warrant or court

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order for the seizure. (Id. at 7, 14). Defendants then transported Plaintiff’s livestock over 300

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miles to the BLM facility in Palomino Valley, Nevada. (Id. at 14). Defendants never gave

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Plaintiff notice or an opportunity to dispute the underlying basis of the allegations against him.

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(Id.). Defendants gave Plaintiff a “bill” for the seizure, transport, and alleged trespass fee in

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excess of $150,000 and told Plaintiff that he had to pay or they would sell his livestock on May

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Pitts is the Sheriff of Elko County. (Mot. to Dismiss (#6) at 1).

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Connelley is a former Nevada State Brand Inspector. (Mot. for Summ. J. (#17) at 1).

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Journigan is a former Nevada Deputy State Brand Inspector. (Mot. for Summ. J.

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(#17) at 1).
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31, 2002. (Id.). Defendants sold Plaintiff’s livestock on May 31, 2002. (Id.).

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The complaint alleged five causes of action. (Id. at 8-10, 14-15). In the first cause of

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action, Plaintiff alleged an unwarranted seizure of property in violation of the Fourth

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Amendment against Robert Abbey, Helen Hankins, Cook Utah of Duchesne, Jim Pitts, Jim

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Connelley, and Dennis Journigan. (Id. at 8). Specifically, Plaintiff alleged that Defendants had

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violated his rights when they “acted together in concert on May 24, 2002” and seized 132 of

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Plaintiff’s cattle that were grazing on historic grazing lands. (Id.).

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In the second cause of action, Plaintiff alleged a due process violation under the Fifth

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and Fourteenth Amendments against Robert Abbey, Helen Hankins, Cook Utah of Duchesne,

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Jim Pitts, Jim Connelley, and Dennis Journigan. (Id. at 9). Specifically, Plaintiff alleged that

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Defendants violated his due process rights by depriving him of the ability to dispute the

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underlying basis of the charges alleged against him when they presented him “with a bill for

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the costs of gathering, transporting, and alleged trespass fees” and told him to pay the amount

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by May 30, 2002, or his cattle would be sold and the proceeds retained by the BLM. (Id.).

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Plaintiff alleged that Defendants violated his rights and the Nevada Revised Statutes when

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they transported his livestock without his permission to a location 300 miles away. (Id.).

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Plaintiff alleged that Defendants violated his rights by selling his cattle on May 31, 2002,

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without his permission or his signature on the Brand Inspection Clearance Certificate in

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violation of NRS § 565.120. (Id.). Plaintiff alleged that Defendants violated his due process

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rights because they failed to provide him with a pre-deprivation hearing and terminated his

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ownership rights without having jurisdiction over Plaintiff or his property. (Id.).

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In the third cause of action, Plaintiff alleged that Robert Abbey, Helen Hankins, Cook

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Utah of Duchesne, Jim Pitts, Jim Connelley, and Dennis Journigan violated Article VI of the

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U.S. Constitution which provides that treaties made under the authority of the United States

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are the supreme law of land. (Id. at 10). Specifically, Plaintiff alleged that the 1863 Treaty of

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Ruby Valley, signed by the Western Shoshone Indians and the United States, provided that

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the President would establish a reservation for the Shoshone to become herdsman and

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agriculturalists. (Id.). Pursuant to the Indian Reorganization Act of 1934, the South Fork
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Western Shoshone Indian Reservation was created in 1941 and provided that “all range,

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ranges, and range watering rights [were] included as part of the South Fork Reservation.”

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(Id.). Defendants violated Plaintiff’s treaty rights when they seized his livestock on May 24,

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2002 without a warrant and without having jurisdiction over the ranges on which Plaintiff’s

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livestock were grazing. (Id.).

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In the fourth cause of action, Plaintiff alleged that Robert Abbey, Helen Hankins, and

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Cook Utah of Duchense had violated his civil rights by breaching the trust of the Indian

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Reorganization Act of 1934. (Id. at 14). Specifically, Plaintiff alleged that Defendants had

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failed to perform their trustee responsibilities “as agents of the Trustee of the Plaintiff.” (Id.).

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Plaintiff alleged that Defendants had interfered with his free enjoyment of the historic ranges

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in his capacity as a Western Shoshone Indian. (Id.).

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In the fifth cause of action, Plaintiff alleged that Robert Abbey, Helen Hankins, Cook

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Utah of Duchesne, Treasury-FMS, Allied Interstate, Inc., Pioneer Credit Recovery, Inc., and

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The CBE Group, Inc. violated his Fifth and Fourteenth Amendment due process rights by

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seizing his livestock without a warrant or court order, selling his livestock below market prices,

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and then attempting to collect a deficiency based on the alleged debt. (Id. at 15). Under the

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direction of the BLM, Treasury-FMS attempted to collect over $180,000 from Plaintiff for costs

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allegedly owed by Plaintiff. (Id.). Plaintiff was never given an opportunity to defend against

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the underlying basis of the charges against him or the opportunity to challenge the validity of

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the alleged debt. (Id.). Plaintiff informed the Department of Treasury that the debt was not

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legitimate. (Id.). The Department of Treasury then assigned the debt to Allied Interstate who

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attempted to collect the debt. (Id.). After Plaintiff told Allied Interstate that the debt was not

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legitimate, Pioneer Credit Recovery attempted to collect the debt. (Id.). After informing

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Pioneer Credit Recovery that the debt was not legitimate, The CBE Group attempted to collect

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the debt. (Id.). After Plaintiff told The CBE Group that the debt was not legitimate, the

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Department of Treasury attempted to collect the debt again. (Id.). The Department of

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Treasury told Plaintiff that it would deduct a portion of his social security payment in order to

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pay the debt. (Id.). On April 1, 2008, the Department of Treasury began deducting 15% of his
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social security payment without providing him an opportunity for a hearing to challenge the

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underlying basis of the alleged debt. (Id.). Plaintiff continues to suffer monthly damages.

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(Id.).

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In June 2012, this Court issued an order denying all of the pending motions to dismiss

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and motions for summary judgment. (Order (#37) at 11). With respect to Robert Abbey,

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Helen Hankins, and Treasury-FMS (collectively “Federal Defendants”), this Court found that

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the statute of limitations were tolled with respect to all five causes of action. (Id. at 9). The

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Court also stated, “with respect to Treasury-FMS, the only remedy available to Plaintiff against

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Treasury-FMS is a personal injunction requiring the BLM to withdraw their debt certification to

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Treasury-FMS and Treasury-FMS’s obligation to honor it forthwith. This remedy is based on

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the BLM’s violation of Plaintiff’s due process rights in determining a deficiency debt owed and

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its certification of that debt to Treasury-FMS.” (Id.).

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In August 2012, this Court issued an order granting in part and denying in part Plaintiff’s

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motion for personal injunctive relief. (Order (#68) at 5). The Court granted a personal

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injunction requiring the BLM to withdraw their debt certification to Treasury-FMS but denied

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Plaintiff’s request to have Treasury-FMS immediately return the funds previously deducted

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from his monthly Social Security payments with compound interest. (Id.). The Court also

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denied Federal Defendants’ Motion for Reconsideration of Order Denying Federal Defendants’

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Motion to Dismiss Complaint. (Id. at 6).

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Defendants Journigan and Connelley filed a notice of appeal on July 10, 2012. (Notice

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of Appeal (#53)). Federal Defendants filed a notice of appeal on September 25, 2012. (Notice

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of Appeal (#82)).
DISCUSSION

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I.

Motion for Stay of Injunction Pending Appeal (#69)

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On August 6, 2012, Federal Defendants filed a motion for stay of injunction pending

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appeal pursuant to FRCP 62(c) or, in the alternative, an order requiring security pursuant to

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FRCP 65(c). (Mot. for Stay (#69) at 1). Federal Defendants assert that, if the Court denies

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the stay, the Court should impose a bond or cash deposit of no less than $2,500. (Id. at 5).
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In response, Plaintiff, now counseled, argues that Federal Defendants cannot show

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irreparable harm and opposes the stay. (Opp’n to Mot. for Stay (#79) at 1).

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Federal Defendants filed a reply. (Reply to Mot. for Stay (#80)).

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Federal Rule of Civil Procedure 62(c) states that “[w]hile an appeal is pending from an

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interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court

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may suspend, modify, restore, or grant an injunction on terms for bond or other terms that

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secure the opposing party’s rights.” Fed. R. Civ. P. 62(c). Federal Rule of Civil Procedure

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65(c) states that “[t]he court may issue a preliminary injunction or a temporary restraining order

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only if the movant gives security in an amount that the court considers proper to pay the costs

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and damages sustained by any party found to have been wrongfully enjoined or restrained.”

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Fed. R. Civ. P. 65(c).
The Court denies Federal Defendants’ motion for a stay pending appeal (#69) and its

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alternative request for a bond.

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II.

Motion for Leave to File a Second Amended Complaint (#75)

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Plaintiff, counseled, seeks leave to file a second amended complaint. (Mot. for Leave

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(#75) at 1). Plaintiff asserts that the second amended complaint seeks to add the “individual

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aboriginal title” claim that this Court granted leave to amend for in its June 2012 order. (Id. at

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2). Plaintiff also asserts that the second amended complaint adds more factual detail,

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defendants, and claims. (Id. at 3-4).

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In response, Federal Defendants assert that the second amended complaint fails to

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state a viable claim against them and therefore the Court should deny leave to amend. (Resp.

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to Mot. for Leave (#77) at 4-7).

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In response, The CBE Group, Inc. asserts that proposed Counts 3, 7, and 8 fail to state

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a claim against The CBE Group, Inc. and therefore the second amended complaint is futile.

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(Resp. to Mot. for Leave (#81) at 2-5).

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The Court grants the Motion for Leave to File a Second Amended Complaint (#75).
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Federal Defendants’ Motion for Stay
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of Injunction Pending Appeal (#69) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a Second Amended
Complaint (#75) is GRANTED.

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DATED: This 19th day of December, 2012.

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_________________________________
United States District Judge

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