Archambault v. The United States of America et al

Filing 42

OPINION AND ORDER GRANTING DEFENDANT'S MOTIONS TO DISMISS EXCEPT AS TO BIVENS CLAIM AGAINST INDIVIDUAL OFFICERS AND STAYING CLAIM PENDING TRIBAL COURT EXHAUSTION Signed by Chief Judge Roberto A. Lange on 11/18/2022. (SAC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

3:22-CV-03002-RAL

CHARLEE ARCHAMBAULT,
INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
JACOB ARCHAMBAULT;

Plaintiff,
OPINION AND

vs.

THE

UNITED

JOSHUA

STATES

ANTMAN;

OF

JAY

AMERICA,

ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS EXCEPT AS TO
BIVENS CLAIM AGAINST INDIVIDUAL
OFFICERS AND STAYING CLAIM

ROMERO, PENDING TRIBAL COURT EXHAUSTION

INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITY AS POLICE OFFICERS FOR THE

ROSEBUD

SIOUX

ENFORCEMENT
UNKNOWN

TRIBAL

LAW

SERVICES;

AND

SUPERVISORY PERSONNEL

OF THE UNITED STATES,INDIVIDUALLY;
Defendants.'

In January of 2019, on the Rosebud Indian Reservation, Jacob Archambault Spotted Tail
was shot and killed during an encounter with two Rosebud Sioux Tribe police officers. Jacob's
mother, Charlee Archambault, alleges that the officers violated her son's constitutional rights, and
that she and Jacob's estate are entitled to damages. All Defendants named in this case have moved
to dismiss the lawsuit on various grounds. Doc. 20; Doc. 22; Doc. 25. For the reasons set forth

below,this Court grants the motions to dismiss all § 1983 claims as well as any claims against the

'At the motion hearing, the parties stipulated to modifying how the Defendants are named to
correct the names of the individual Officers.
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United States and "Unknown Supervisory Personnel" of the United States. This Court stays die

remaining Bivens-based claim against the named tribal police officers pending exhaustion of any
available tribal court remedy.
I. Standard on Motion to Dismiss

To siu^-ive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), a complaint must contain "a short and plain statement of the claim showing

that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Courts must accept the plaintiffs
factual allegations as true and make all inferences in the plaintiffs favor, but need not accept the

plaintiffs legal conclusions. Retro Television Network. Inc. v. Luken Commc'ns. LLC.696 F.3d
766, 768-69 (8th Cir. 2012). Although detailed factual allegations are unnecessary, the plaintiff

must plead enough facts to "state a claim to relief that is plausible on its face[,]" meaning "the

plaintiff pleads factual content that allows the court to draw die reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. lobal. 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Com, v. Twomblv. 550 U.S. 544, 570 (2007)). Therefore, the "factual

allegations must be sufficient to raise a right to relief above the speculative level." Cook v.
George's. Inc.. 952 F.3d 935,938(8th Cir. 2020)(cleaned up and citation omitted).
On a motion to dismiss under Rule 12(b)(1), however, the standard depends on whether

the defendant is making a facial attack or factual attack on subject matter jurisdiction. Stallev v.
Cath. Health Initiatives. 509 F.3d 517,520-21 (8th Cir. 2007). When a defendant makes a facial

attack to challenge whether the facts alleged in the complaint establish subject matter jurisdiction
under Rule 12(b)(1), the plaintiff is afforded similar safeguards as in a Rule 12(b)(6) motion.
Osbom V. United States. 918 F.2d 724, 729 n.6 (8th Cir. 1990). Namely,the Court must "accept

as true all factual allegations in the complaint, giving no effect to conclusory allegations oflaw,"

and determine whether the plaintiff's alleged facts "affirmatively and plausibly suggest" that

jurisdiction exists. Stallev. 509 F.3d at 521. A court's review then is limited to the face of the
pleadings. Branson Label. Inc. v. Citv of Branson. 793 F.3d 910,914(8th Cir. 2015).
Conversely, when a defendant attacks the factual basis for subject matter jurisdiction, a
court can consider matters outside the pleadings, "and the non-moving party does not have the

benefit of 12(b)(6) safeguards." Qsbom. 918 F.2d at 729 n.6. "A factual attack occurs when the
defendant challenges the veracity of the facts underpinning subject matter jurisdiction." Davis v.
Anthonv. Inc.. 886 F.3d 674, 679(8th Cir. 2018)(cleaned up and citation omitted). In that case,

"no presumptive truthftilness attaches to the plaintiffs allegations," and a "court is ffee to weigh
the evidence and satisfy itself as to the existence of its power to hear the case." Qsbom.918 F.2d

at 730 (citation omitted). Here, all Defendants appear to raise facial attacks, so this Court takes
the well-pleaded allegations of the Complaint as true in mling on the motions to dismiss.
II. Background
A. Facts alleged in Complaint

The Rosebud Sioux Tribe, a federally recognized Indian tribe, runs the Rosebud Sioux
Tribe Law Enforcement Services ("RSTLES") to provide policing on the Rosebud Indian

Reservation in Todd County, South Dakota. Doc. 1 at HI 4-6. The United States, through the

Department ofthe Interior, Bureau ofIndian Affairs,has contracted with the Tribe under the Indian
Self-Determination and Education Assistance Act of 1975 ("ISDEAA") to provide law
enforcement services on the Reservation.^

^ These agreements are commonly referred to as "638 contracts":

ISDEAA, Public Law 93-638, authorizes federal agencies to contract with Indian

tribes to provide services on the reservation. Such a contract is commonly referred
to as a "self-determination contract" or "638 contract." A self-determination

contract is a contract between a tribal organization and the Federal Government for

At around 5:00 p.m. on January 27,2019,Defendant Officer Joshua Antman,an employee

ofRSTLES,was dispatched to a disturbance where Jacob Archambault Spotted Tail was identified
as a person of interest and driving a gold SUV. Doc. 1 at If 10. Although not expressly stated in
the Complaint, the briefing makes clear and the parties at the motion hearing agreed to judicial
notice that Archambault is a tribal member and the events in question occurred within the exterior
boundaries of the Rosebud Indian Reservation. Doc 21 atf 2; Doc. 26 at 1, 7,10, 12; Doc. 37 at

3,6. Sometime shortly thereafter. Officer Antman observed a gold Chevrolet Tahoe parked near

the intersection of Hospital Road and Tiny Road. Doc. 1 atf 11. Officer Antman pulled his patrol
car behind the Tahoe and saw a female passenger exit the rear driver's side of the vehicle. Id. at If
13. Officer Antman did not try to speak to her. Id at 114.

Officer Antman activated his emergency lights to execute a traffic stop as the Tahoe pulled

away. Id at If 14. The Tahoe did not stop for the emergency lights, but instead crossed Hospital
Road and traveled down Tiny Road toward BIA Highway 1. Id at If 16; Doc. 21 at ^ 6. At some

point, the Tahoe turned aroimd and traveled the other direction up Tiny Road, and Officer Antman
saw that Archambault was the driver. Doc. 1 at 117.

the planning, conduct and administration of programs or services which are
otherwise provided to Indian tribes and their members pursuant to Federal law.
Congress enacted the ISDEAA to encourage Indian self-determination and tribal
control over administration of federal programs for the benefit of Indians, by

authorizing self-determination contracts between the United States, through the
Secretaries of the Interior and of Health and Human Services, and Indian tribes.

There are several categories of contractible services or programs called out by the
statute, one of which concems the provision of a police force and related law
enforcement functions on Indian lands. Congress ftius recognized that one of the

ways to further Indian self-determination was to allow a tribe to contract for law
enforcement services so the tribe could maintain a tribal police force on the

reservation capable of effectively enforcing criminal laws.
Bonev v. Valline. 597 F. Supp. 2d 1167,1173(D. Nev. 2009)(cleaned up and citations omitted).

Archambault drove the Tahoe up Tiny Road for a short distance, before merging with Low

Rent Housing Road and immediately turning onto North Spotted Tail Lane. 14 at ^ 18. North
Spotted Tail Lane leads to a dead end, but there is an off-road trail near the end of the road that
connects to Spotted Tail Lane. Doc. 32 at 3. The trail runs roughly parallel to the two roads until
it makes a sharp turn for a steep climb onto Spotted Tail Lane. Id Archambault turned onto this
trail, but the Tahoe lost traction due to an accumulation of snow on the ground. Doc 1 at

19,

21.

Officer Antman parked his patrol car behind the Tahoe to block access to North Spotted
Tail Lane as Archambault struggled to maneuver the vehicle up the trail. Id at 122. At this point,
Defendant Officer Jay A. Romero, also with RSTLES, arrived on the scene and parked next to

Officer Antman's patrol car, further blocking access to North Spotted Tail Lane. Id at H 23.
Officer Antman and Officer Romero positioned their patrol cars perpendicular to the Tahoe. Id

at H 25. The two officers exited their vehicles and stood to the side of their patrol cars while
Archambault tried to crest the snowy incline in the Tahoe. Id at H 26. Unable to climb the trail,
Archambault reversed the Tahoe past Officer Antman, stopped next to Officer Romero's patrol
car, and drove forward in another attempt to crest the final portion of the trail. Id at

27-28.

The Tahoe spun out yet again. Id atf 29.
Archambault reversed the Tahoe to make a third run at the incline. Id at H 30. This time,

as he passed the patrol cars,the Tahoe hit the bumper ofOfficer Romero's car. Id at 131. Officer
Antman and then Officer Romero began firing their duty weapons. Id at

32-33. They fued a

combined fifteen rounds at Archambault and the Tahoe—some through the passenger door of the

Tahoe and some through the windshield. Id Ht 34-36. Archambault was struck and suffered
multiple gunshot wounds,including one in the left side of his chest, after which he drove down a

steep embankment and crashed into a ravine. Id. at IHI 37-39. Archambault was partially ejected
from the Tahoe. Id. at 40. Plaintiff alleges that even though Archambault was alive when the
Officers went to check on him, neither officer rendered any medical aid. Id at

40-41.

Archambault died at the scene. Id at H 41. An autopsy later concluded that Archambault's death

was a homicide,caused primarily by the gunshot to the left side of his chest, which pierced his left
lung. Id. at^43-44.
B. ProceduralHistory

On January 24, 2022, Plaintiff Charlee Archambault, individually and as personal

representative of the Estate of Jacob Archambault, filed a four-count complaint against
Defendants. Doc. 1. Plaintiff named four separate defendants: the United States of America;
Joshua Antman and Jay A. Romero,^ individually and in their official capacities as police officers
for RSTLES; and Unknown Supervisory Personnel ofthe United States, individually. Id
Plaintiffs Complaint and briefmg are not entirely clear or consistent about what claims are

alleged against which Defendants. For example, Count One ofthe Complaint, Doc. 1 at 6,is titled
"Violation of Constitutionally Protected Rights - 42 U.S.C.A. § 1983 ("Bivens Action)(Estate of
Jacob Archambault v. Joshua Atman [sic] and Jay Romero Sr. [sic])." Ofcourse, a § 1983 claim
for deprivation of constitutional rights under color of state law is legally distinct from a Bivens

claim requiring federal and not state action. S^ discussion infra Part III.A.2; cf Steiner v.
Twentieth Centurv-Fox Film Corn.. 140 F. Supp. 906, 908 (S.D. Cal. 1953) ("Inconsistent

^ The complaint erroneously identified Officer Antman as "Joshua Atman"and Officer Romero as
"Jay Romero 5r." Doc. 1 (emphasis added). Plaintiffacknowledged she was unsure ofthe proper
spelling of these Defendants' names and pledged to amend the complaint to reflect the correct

spelling later on. Id The complaint has not been amended yet, but subsequent filings have
clarified that these Defendants are Joshua

and Jay A. Romero (not senior) and the parties

have agreed that this Court can reform how the defendants are named to correct this information.
See Doc. 21; Doc. 26.

allegations can be made in separate claims or defenses...[but not]in the same cause ofaction[.j").
Plaintiff in briefing characterizes Count One as a "Bivens claim against Defendants in their

individual capacities{,Y Doc. 32 at 1 (emphasis added), while the Complaint alleges this claim
solely against Defendants Antman and Romero but in both their individual and official capacities,

and not against all four Defendants in their individual capacities. Because pleadings "must be
construed favorably to the pleader and judged by substance rather than form[,]" this Court has
endeavored to untar^le Plaintiffs claims as best it can to do substantial justice. Mut. Creamery
Tns Cn v Iowa Nat. Mut. Ins. Co.. 427 F.2d 504, 508 (8th Cir. 1970). This Court understands

Count One to be brought imder Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics. 403 U.S. 388 (1971), against Antman and Romero in their individual capacities. Doc.

1 at HTf 40-55; Doc. 32 at 1. After all, within Count One,Plaintiff directly states that the "claim of
relief is brought pursuant to Bivens.. ." and that Defendants Antman and Romero were "acting
under color of federal law." Doc. 1 at

40, 46. Counts Two (entitled "Wrongful Death - 42

U.S.C. § 1983"), Three (entitled "Violation of Civil Rights to Familial Relationship -42 U.S.C. §
1983"), and Four(entitled "Violation of Civil Rights 42 U.S.C. § 1983")are brought solely under
42 U.S.C. § 1983, likewise against Antman and Romero. Doc. 1 at

54-66. Counts One, Two,

and Four are brought by Charlee Archambault as Personal Representative of the Estate of Jacob
Archambault. Doc. 1 at ^ 40-56, 61-66. Count Three is brought personally by Charlee
Archambault for loss ofconsortium damages—that is,loss ofthe care, companionship,and support
of her son. Doc. 1 at IHf 57-60.
Each of the causes of action have similar contentions about what the wrongful conduct

was. Count One alleges that Antman and Romero,"while under the color of law, used excessive
force and deprived Jacob Archambault of his constitutional rights." Doc. 32 at 1. Cotmt Two

alleges "a violation of Jacob Archambault's constitutional right[s] through [Antman and
Romero's] use ofexcessive, unreasonable, and unwarranted force." Id. at 2. Count Three alleges
a violation of Jacob's "constitutional rights through [Antman and Romero] seizing Jacob
Archambault and killing him through the use of unreasonable, unjustified, and deadly force[,]"
Doc. 32 at 2, which was a "direct and proximate cause of[Charlee's] loss of a familial relationship

with her son[,]" Doc. 1 at H 56. Finally, Count Four alleges that Antman and Romero "violated
Jacob Archambault's rights tmder the Constitution" and "the rights violations caused injury and
damages prior to death." Doc. 32 at 2.

The Complaint does not reference or plead any claim under the Federal Tort Claims Act.
Although the Complaint names as defendants the United States and its "Unknown Supervisory
Personnel" in the caption, the Complaint is devoid of any allegation of wrongdoing against the
United States and its Unknown Supervisors and indeed does not mention those defendants in any
ofthe causes of action. Doc. 1.
ni. Discussion

A. Antman and Romero Motions to Dismiss

Officer Antman and Officer Romero ("the Officers") have moved to dismiss Plaintiffs

claims against them under Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6). Doc.20; Doc.
25. The Officers make essentially the same arguments, so this Court combines its discussion on
the two motions. The motions frame the questions whether Plaintiffhas plead any cl^ms that this

Court has the power to hear, and if so, whether this Court should presently exercise that power.
Resolution of these questions in tum depend on three issues:(1) Whether Plaintiffs suit against
the Officers is in fact against the Rosebud Sioux Tribe as a sovereign entity and consequently

barred by tribal sovereign immunity;(2) Whether Bivens or 42 U.S.C § 1983 extends a cause of

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action against the Officers on the alleged facts; and(3)Whether this Court should require Plaintiff
to exhaust any remedies in Rosebud Sioux Tribal Court before exercising jurisdiction. This Court
will address these issues in turn.

1. Whether Plaintiffs suit against the Officers is in fact against the Rosebud Sioux Tribe
as a sovereign entity and consequently barred by tribal sovereign immunity.
Plaintiff did not name the Rosebud Sioux Tribe as a defendant but sued two of its law

enforcement officers, naming them individually and "in their official capacity as police officers
for the Rosebud Sioux Tribe Law Enforcement Services." Doc. 1."A suit against a governmental

officer in his official capacity is the same as a suit against the entity of which the officer is an

agent." Stanko v. Oelala Sioux Tribe. 916 F.3d 694, 697 (8th Cir. 2019)(quoting McMillian v.
Monroe Cntv.. 520 U.S. 781, 785 n.2 (1997)). "Indian tribes are distinct independent political

commimities, retaining their original natural rights in matters of local self-government." Santa
Clara Pueblo v. Martinez. 436 U.S. 49, 55(1978)(citation omitted and cleaned up). In line with

that principle, "Indian tribes . . . possess[] the common-law immunity from suit traditionally
enjoyed by sovereign powers." 14.at 58; Alltel Commc'ns.LLC v. DeJordv.675 F.3d 1100,1102
(8th Cir. 2012). "Thus, as a matter offederal law, the Tribe is subject to suit only ifCongress has
authorized the suit or the tribe has waived its immunity." Stanko.916 F.3d at 697. No such waiver

of immunity by Congress or the Tribe pertains to claims made in the complaint, so the claims
against the officers in their official capacities are barred by tribal sovereign immunity. Plaintiff
recognizes as much in briefing in recasting the claims as against the officers only in their individual
capacity. Doc. 32 at 5.

When a lawsuit is brought against tribal employees in their individual capacities, courts are
instructed to "look to whether the sovereign is the real party in interest to determine whether

sovereign immunity bars the suit." Lewis v. Clarke. 137 S. Ct. 1285, 1290(2017); see also Ten

Evck V. United States. 463 F. Supp. 3d 969, 977 (D.S.D. 2020)("However, a plaintiff cannot
circumvent tribal immunity by the simple expedient of naming an officer of the Tribe as a
defendant, rather than the sovereign entity.") (citations omitted and cleaned up); Whiting v.
Martinez. No. 3:15-CV-03017-RAL,2016 WL 297434, at *3(D.S.D. Jan. 22,2016)("The Eighth

Circuit has found that a tribe's sovereign immunity may extend to a tribal entity or agency.").

Determining the real party in interest is "paramount" because it "dictates what immunities may be
available" to the defendants. Lewis. 137 S. Ct. at 1291.

The Supreme Coiut has given some indication that the general rules ofsovereign immunity
apply in the tribal context in some circumstances. Id. And ifthat is the case,to determine whether
the suit against the individual officers is in fact against the Rosebud Sioux Tribe, this Court would
have to look to "the effect ofthe relief sought." Pennhurst State Sch.& Hosd. v. Halderman. 465
U.S. 89, 107(1984); see also Lewis 137 S. Ct. at 1291 (allowing suit to go forward against tribal
commercial employee in individual capacity when suit did "not require action by the sovereign or
disturb the sovereign's property."). Sovereign immunity typically does not bar a Bivens or § 1983
action against federal or state officials in their individual capacities. Indeed, a major purpose of
those causes of action is to deter wrongful individual conduct. See Corr. Servs. Com,v. Malesko.

534 U.S. 61, 70 (2001)(citing F.D.l.C. v. Mever. 510 U.S. 471, 474 (1994))("The purpose of
Bivens is to deter individual federal officers from committing constitutional violations

[T]he

threat of suit against an individual's employer was not the kind of deterrence contemplated by
Bivens."). Therefore,"[a]n officer sued in his individual capacity ... although entitled to certain
personal immunity defenses ... cannot claim sovereign immunity from suit, so long as the relief
is sought... from the officer personally." Pistor v. Garcia. 791 F.3d 1104,1112(9th Cir. 2015)

10

(quoting Kentucky v. Graham. 473 U.S. 159, 166-67(1985) and Alden v. Maine. 527 U.S. 706,
757(1999))(quotation cleaned up).
But "the general principles of sovereign immunity" may not "always apply to define the
boundaries of tribal sovereign immunity." Ten Evck. 463 F. Supp. 3d. at 980 (emphasis added);
see also Upper Skaeit Indian Tribe v. Lunderen. 138 S. Ct. 1649, 1654 (2018) (declining to
determine the limits on tribal sovereign immunity in the first instance where the federal
government and tribe argued that "immunity doctrines lifted fi^om other contexts do not always
neatly apply to Indian tribes"); Kiowa Tribe of Oklahoma v. Mfe. Techs.. Inc.. 523 U.S.751,75556 (1998)("We have often noted, however, that the immunity possessed by Indian tribes is not
coextensive with that of the States."). For example, citing a lack of Supreme Court and Eighth
Circuit precedent, the court in Ten Evck questioned whether tribal officials, like their federal and
state counterparts, are always "precluded from invoking the defense of tribal sovereign immunity
to a claim for money damages alleged against the officer in his individual capacity," that is, at least
"if such claim arises from the officer exercising the tribe's inherent sovereign powers." 463 F.
Supp. 3d at 980(emphasis removed). This Court, too, has previously signaled that to sue tribal
officials in their individual capacity, a plaintiff must at least allege some facts to suggest
"Defendants did not act on the Tribe's behalfor that Defendants exceeded the authority granted to

them by the Tribe."^ Whiting. 2016 WL 297434,at *3(citation omitted).
However,the Eighth Circuit addressed this issue in Stanko v. Oelala Sioux Tribe, where
anon-Indian sued tribal officers after detaining him after a traffic stop allegedly in violation of his
constitutional and civil rights. 926 F.3d at 696. After affirming dismissal of claims against the

^ The use of constitutionally excessive deadly force, as alleged by Plaintiff here, may be one such
instance of a tribal officer exceeding the authority granted by the tribe to the officer.
11

tribe itself and the officers in their official capacities, the Eighth Circuit without analysis simply

stated that the plaintiffs "claims against tribal officers acting in their individual capacities [were]
not barred by the Tribe's sovereign immunity." Id at 697. Although the plaintiff in Stanko was
a non-Indian suing tribal officials for alleged constitutional violations that occurred on tribal land,
there seems to be no reason why sovereign immunity should hinge on the race or tribal status of

the plaintiff. However, because this Court is deferring proceeding on one claim pending tribal
court exhaustion, this Court will leave it for the Rosebud Sioux Tribal Court to consider not only
whether there is a cause of action in tribal court against the individual officers akin to Bivens for
the alleged excessive use of deadly force, but also whether tribal sovereign immunity has any
impact on such a claim.
This Court understands "[sjovereign immunity is a jurisdictional question," and that if it

exists, the suit against the officers must be dismissed regardless of the merits. Rudd v. Omaha
Indian Tribe. 45 F.3d 1241,1244(8th Cir. 1995)(citing Puvallup Tribe. Inc. v. Washington Game
Dep't. 433 U.S. 165, 172 (1977)); see also Brownback v. King. 141 S. Ct. 740, 749 (2021)
("Ordinarily, a court cannot issue a ruling on the merits when it has no jurisdiction

")(cleaned

up and citation omitted). In Brownback. the Supreme Court noted that in certain cases, where the
merits and jurisdictional elements ofthe alleged claims overlap, how a court characterizes its ruling
can be largely a matter of semantics:
In cases such as this one where a plaintiff fails to plausibly allege an element that
is both a merit element of a claim and a jurisdictional element, the district court

may dismiss the claim under Rule 12(b)(1) or Rule 12(b)(6). Or both. The label
does not change the lack of subject-matter jurisdiction, and the claim fails on the
merits because it does not state a claim upon which relief can be granted.
141 S. Ct. at 749 n.S. Given the overlapping claims alleged here and guided in part by the Eighth

Circuit's approach in Stanko. this Court considers it appropriate to address whether Plaintiff has

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plausibly alleged a claim upon which relief can be granted against the Officers under Bivens or §
1983 without fully deciding the tribal sovereign immunity question. See Stanko. 916 F.2d at 698
(focusing on whether plaintiff stated a plausible claim).
2. Whether Bivens or 42 U.S.C § 1983 extends a cause of action against the Officers on
the alleged facts.

Plaintiff rests her claims on 42 U.S.C. § 1983 and Bivens. Individuals who believe their

constitutional rights have been violated by the police have two primary avenues for civil relief
available under federal law:(1)42 U.S.C.§ 1983, which applies to state and local officers; and(2)

the § 1983 analog for suits against federal actors that the Supreme Court recognized in Bivens.
403 U.S. 388. Williams v. Citv of Carl Junction. Missouri. 480 F.3d 871, 875 n.2(8th Cir. 2007)

(quoting Hartman v. Moore. 547 U.S. 250, 254 n.2 (2006)); see also Seth P. Waxman & Trevor
W. Morrison, What Kind of Tmmunitv? Federal Officers. State Criminal Law,and the Suoremacv
Clause. 112 Yale L.J. 2195, 2208 (2003)(discussing available legal tools for constraining the
conduct ofindividual law enforcement officers). Section 1983 provides that "[e]very person who,

under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States ... to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
...." 42U.S.C§ 1983. Similarly,"Bivens established that the victims ofa constitutional violation

by a federal ^ent have a right to recover damages against the official in federal court despite the
absence of any statute conferring such a right." Carlson v. Green.446 U.S. 14,18(1980)(citation
omitted).

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In general, "[t]he essential elements of a § 1983 claim^ are(1)that the defendant(s) acted
under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right." Schmidt v. Citv of Bella Villa. 557 F.3d 564, 571 (8th
Cir. 2009). An essential element ofa § 1983 claim is that the defendants acted under color ofstate
law. Id. "The traditional definition of acting under color of state law requires that the defendant
in a § 1983 action have exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law." Parker v. Bover. 93 F.3d 445,
447-48(8th Cir. 1996)(quoting West v. Atkins. 487 U.S.42,49(1988))(cleaned up and citation
omitted). Moreover,"[t]he injury complained of must have been caused by the exercise of some
right or privilege created by the state, by a rule of conduct imposed by the state, or by a person for
whom the state is responsible." Id at 448.
While arguing that 42 U.S.C § 1983 supplies a cause ofaction against the Officers,Plaintiff
has alleged no facts to suggest that the Officers acted under color of state law. The allegations in
the Complaint about the Officers acting under color ofstate law are all conclusory and contradicted
by other allegations in the Complaint that the Officers were acting under color of or as agents of

^ The Eighth Circuit has summarized the scope of a § 1983 claim as follows:
Section 1983 does not confer substantive rights but merely provides a means to
vindicate rights conferred by the Constitution or laws of the United States. In
addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged
application of force. The two primary sources of constitutional protection against

physically abusive goverrmiental conduct are the Fourth and Eighth Amendments.
The Fourth Amendment's prohibition against unreasonable seizures of the person

applies to excessive-force claims that arise in the context of an arrest or
investigatory stop of a free citizen," while the Eighth Amendment's ban on cruel
and unusual punishment applies to excessive-force claims brought by convicted
criminals serving their sentences.
Wilson V. Spain. 209 F.3d 713, 715(8th Cir. 2000)(cleaned up and citations omitted).

14

federal law. Doc. 1. Indeed, Plaintiff in her briefing argued that the Officers were "performing a
federal function under the color oflaw derived fromfederal law," and conceded at the hearing the
absence of any evidence of the Officers performing a state function. Doc. 32 at 6 (emphasis
added). Plaintiff notes that under the Tribe's 638 contract tribal police may sometimes have the
power to assist state law enforcement, but even then.Plaintiffonly makes this assertion to support
that the Officers were "federal actors." Id at 8-9.

"The Supreme Court has long distinguished Indian tribes from territories and states."
Nveaardv.Tavior. No. 3:19-CV-03016-RAL, 2022 WL 1487455, at *14(D.S.D. May 11,2022).
See Michigan v. Bav Mills Indian Cmtv.. 572 U.S. 782, 788(2014); Cherokee Nation v. Georgia.
30 U.S 1, 17 (1831)). Tribes and in turn their tribal officers thus are as a general rule not state
actors. There is no action under color ofstate law when Tribal law enforcement officers employed
by a tribe imder a 638 contract respond to a dispatch call on the reservation about a tribal member
having caused a disturbance and then pursue the tribal member on the reservation leading to a
confrontation and use of deadly force. Simply put. Plaintiff has not plead and appears to be unable
to plead a viable claim under 42 U.S.C. § 1983 under these facts. As such. Counts Two, Three
and Four must be dismissed. See Stanko. 916 F.3d at 696 ("The district court properly rejected
[Plaintiffs] contention that Congress expressly audiorized § 1983 suits against Indian tribes.").
Plaintiffs Bivens claim in Count One alleges that the Officers, while employed by
RSTLES, were acting as federal officials under the color offederal law, rather than tribal officials
acting under the color of tribal law, when they allegedly violated Jacob Archambault's
constitutional rights. Doc. 1 at

40-55. According to Plaintiff, the Officers are federal actors

subject to Bivens by virtue of the Tribe's 638 contract with the federal government and because
they were performing congruent tribal and federal functions during the alleged events. Doc. 1 at

15

3-48; Doc. 32 at 7-9. Plaintiff argues in briefing that at the time of the alleged constitutional
violations, the Officers were "investigating crimes that could have both Tribal and Federal

jurisdiction." Doc. 32 at 8-9. In other words, the Officers were performing "duties that would
assist federal law enforcement," which should be considered a federal function thus subjecting
them to Bivens liability.^ Id. at 9.

"[T]o state an actionable Bivens claim, a plaintiff must show' (I) a violation of a
constitutional right,(2)committed by a Federal actor,(3) who acted with the requisite culpability
and causation to violate the constitutional right." Mendez v. FMC-Rochester. No. 07-CV-

2609(JMR/RLE), 2007 WL 2320547, at *3 (D. Minn. Aug. 10, 2007)(quoting Hart v. Citv of
Little Rock.432 F.3d 801, 804(8th Cir. 2006))(cleaned up and citations omitted). As ajudicially
created cause of action, Bivens is more limited than its § 1983 counterpart. The Supreme Court

has been hesitant to extend Bivens actions to cover a wide array ofalleged constitutional violations.
See Egbert v. Boule. 142 S. Ct. 1793, 1799(2022)("Over the past 42 years, however, we have
declined 11 times to imply a similar cause ofaction [under Bivensl for other alleged constitutional
violations."); Zielar v. Abbasi. 137 S. Ct. 1843, 1857 (2017)(quoting Iqbal. 556 U.S. at 675)

("[T]he Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial
activity."). There are at least three recognized,albeit limited,substantive causes ofaction available
under Bivens:

In Bivens. the Supreme Court established a right of individuals to sue individual

federal agents for damages for unconstitutional conduct in violation of the Fourth
Amendment. Bivens. 403 U.S. at 389. The Court later extended this holding to

^ In the context ofthe crime ofassaulting a federal officer, tribal police acting under a 638 contract
are considered "federal officers." See United States v. Schiradellv.617 F.3d 979.981 n.l (8th Cir.

2010)(fmding that tribal officers employed through a contract with the BIA constituted federal
officers for purposes of assault on a federal officer charge under 18 U.S.C. § 111).
'
To state a claim in federal courts, a plaintiff has to claim, rather than "show," the elements of a
cause of action under the pleading standard set by Twomblv and lubal.
16

encompass violations of the Fifth Amendment, Davis v. Passman. 442 U.S. 228,
248-49(1979), and the Eighth Amendment,Carlson. 446 U.S. at 32-33.
Mehrkens v. Blank. 556 F.3d 865, 869(8th Cir. 2009)(cleaned up).

This is not the first time a plaintiffhas invoked Bivens to sue a tribal officer working under
a 638 contract. See Bonev v. Valline. 597 F. Supp. 2d 1167, 1183-1186 (D. Nev. 2009)(after
initially denying motion to dismiss, granting summary judgment refusing to allow Bivens action
against a tribal law enforcement officer based on 638 contract where tribal law enforcement officer

was enforcing tribal law against a tribe member on tribal territory); Ten Evck. 463 F. Supp. 3d at
989 (allowing Bivens claim to proceed against tribal officer because tribal officer was assisting
state law enforcement off tribal land, and absent the 638 contract tribal police did not otherwise
have authority to so assist).

Plaintiffs argument—that even though the Officers were not directly employed by the
federal government they can still be held liable under Bivens if they were engaged in a federal
action—oversimplifies the relevant inquiry. That argument may work in the §1983 context but
does not necessarily apply in the Bivens context. Compare Doe v. N. Homes. Inc.. 11 F.4th 633,
637 (8th Cir. 2021)(quoting Manhattan Cmtv. Access Com, v. Halleck. 139 S. Ct. 1921, 1928

(2019))("Only a state actor can face § 1983 liability. But in a few limited circumstances, a private
entity can qualify as a state actor, including vriien the private entity performs a traditional,

exclusive public function, and when the government acts jointly with the private entity.")(cleaned
up and citations omitted), with Minneci v. Pollard. 565 U.S. 118, 126 (2012)("[F]or FBivensl
purposes that fact—ofemployment status—makes a critical difference."). The Supreme Court has
quite recently reemphasized that "recognizing a cause of action under Bivens is a disfavored

judicial activity." Egbert. 142 S. Ct. at 1803 (cleaned up and citations omitted). In general,
whether a court should recognize a Bivens action is at least a two-step inquiry:
17

[A Bivensi cause of action may be defeated in a particular case, however, in two
situations. The first is when defendants demonstrate special factors counselling
hesitation in the absence of affirmative action by Congress. The second is when
defendants show that Congress has provided an alternative remedy which it
explicitly declared to be a substitute for recovery directly under the Constitution
and viewed as equally effective.

Carlson. 446 U.S. at 18-19 (citations omitted and cleaned up). This inquiry necessarily involves
courts in evaluating "a range of policy considerations ... at least as broad as the range ... a
legislative would consider," including "economic and governmental concerns, administrative
costs, and the impact on governmental operations systemwide." Egbert. 142 S. Ct. at 1802

(cleaned up and citations omitted). One of the possible considerations in determining if a Bivens
claim should be allowed against a tribal officer due to alleged excessive force against a tribal
member on a reservation is whether the tribal court would adjudicate the merits of such a claim

independently. See generallv Stanko.916F.3d at 699(noting an Indian tribe likely hasjurisdiction
to resolve a civil damage action against tribal officers); Corr. Servs. Com.. 534 U.S. at 72

(discussing how availability of alternative remedies impacts Bivens). Indeed, the purpose of

Bivens in deterring individual officers fi-om committing constitutional violations might be served
through tribal court actions against tribal officers for on-reservation activity alleged to violate
constitutional rights. At any rate, faced with this "unenviable task" of weighing policy concerns,
courts are instructed to refrain from recognizing a Bivens cause ofaction if there is "even a single
sound reason to defer to Congress." Egbert. 142 S. Ct. at 1803(cleaned up and citation omitted).
The impact of making the Bivens inquiry in the present case, given the tribal and federal
interests at stake, counsels that this Court proceed with caution. Here,this Court would likely first
have to decide whether the Officers were acting under color of federal law, tribal law, or both.

Such a determination cannot be made on a motion to dismiss on the current record particularly
when there is authority within the District ofSouth Dakota that a Bivens action might be brought
18

against a tribal officer acting under a 638 contract. See Ten Evck. 463. Supp. 3d at 988
(recognizing Bivens cause of action brought by non-Indian against tribal police for incident that
occurred off tribal land). This Court thus denies the motion to dismiss Count One—without
concluding that a viable Bivens claim in fact exists—because Count One states a Bivens claim
against the Officers in their individual capacities. See Stanko.916 F.3d at 699(despite expanding
Bivens being disfavored, the complex inquiry in determining whether Bivens extends to tribal
officers renders Bivens action "not a frivolous claim").
However, this fact situation differs from the one in Ten Evck. where a non-Indian was

injured off Reservation land allegedly through the actions of a tribal officer assisting state
authorities. Here, Archambault is a tribal member, involved in an incident on tribal land, with

tribal police responding, pursuing, and shooting him on the Reservation. In a case that so deeply
touches the sovereign interests of the Rosebud Sioux Tribe, the "[pjromotion of tribal selfgovernment and self-determination" presents the question of whether this Court should stay the
case to allow the Rosebud Tribal Court to "evaluate the factual and legal bases" underpinning
Plaintiffs claims before this Court proceeds to determine whether any Bivens claims can proceed
to trial against the Officers. Iowa Mut. Ins. Co. v. LaPIante. 480 U.S. 9,15-16(1987).
3. Whether this Court should require PlaiutifT to exhaust any remedies in Rosebud
Sioux Tribal Court.

The Federal Government has a "longstanding policy of encouraging tribal selfgovernment." Iowa Mut. Ins. Co.. 480 U.S. at 14; see also Nat'l Farmers Union Ins. Comn. v.
Crow Tribe ofIndians.471 U.S. 845,856 n. 19(1985)(collecting cases). Because "[t]ribal courts

play a vital role in tribal self-government," the Supreme Court has recognized that "[a] federal
court's exercise of jurisdiction over matters relating to reservation affairs can . . . impair the
authority of tribal courts" and unduly interfere with tribal sovereignty. Iowa Mut. Ins. Co.. 480
19

U.S. at 14-18: see also Santa Clara Pueblo.436 U.S. at 59("Even in matters involving commercial

and domestic relations, we have recognized that subjecting a dispute arising on the reservation

among reservation Indians to a forum other than the one they have established for themselves may
undermine the authority of the tribal cour[t] . ..[and hence] ... i[n]fringe on the right of the

[Ijndians to govern themselves.")(cleaned up and citations omitted). While subject to the plenary
authority of Congress, Indian tribes and their courts have retained a great deal of inherent powers
in civil and criminal matters arising against their members within die reservation. See generally
United States v. Wheeler.435 U.S. 313,326(1978)("Moreover,the sovereign power of a tribe to

prosecute its members for tribal offenses clearly does not fall within that part ofsovereignty which
the Indians implicitly lost by virtue of their dependent status."); Plains Com. Bank v. Long Fam.
Land & Cattle Co.. 554 U.S. 316, 327(2008)("As part of their residual sovereignty, tribes retain

power to legislate and to tax activities on the reservation, including certain activities by
nonmembers, to determine tribal membership, and to regulate domestic relations among

members.")(cleaned up and citations omitted); Kelsev v. Pope.809 F.3d 849,855(6th Cir. 2016)

(quoting United States v. Lara. 541 U.S. 193, 204(2004))("The sovereign authority of a tribe to
punish its own members is 'a power that this Court has called inherent.'").

"Civiljurisdiction over tribal-related activities on reservation land presumptively lies in the
tribal courts unless affirmatively limited by a specific treaty provision or by federal statute."
Duncan Energy Co. v. Three Affiliated Tribes of Ft. Berthold Rsrv.. 27 F.3d 1294, 1299(8th Cir.

1994). While not a "jurisdictional prerequisite," exhaustion of tribal court remedies is a matter of
comity:
The deference that federal courts afford tribal courts concerning such activities

occurring on reservation land is deeply rooted in Supreme Court precedent.
Because a federal court's exercise ofjurisdiction over matters relating to reservation
affairs can impair the authority of tribal courts, the Supreme Court has concluded
20

that, as a matter of comity, the examination of tribal sovereignty and jurisdiction
should be conducted in the first instance by the tribal court itself.
Id-

The Officers both contend that Plaintiff could have brought a claim in Rosebud Sioux
Tribal Court but failed to do so. Doc. 34 at 4; Doc.26 at 10-13. Plaintiffresponds that the "Tribal

court cannot assert jurisdiction over Plaintiffs claims" but does not explain why.* Doc. 32 at 10.
Although 42 U.S.C. § 1983 and Bivens do not vest tribal courts with jurisdiction, a civil action
arising out of the exercise of allegedly unreasonable deadly force by a tribal law enforcement
officer against a tribal member on the Reservation should be actionable in tribal court. This Court

believes the Rosebud Sioux Tribal Court should be first to consider this claim. After all, the Eighth
Circuit has said that even when there is "no case pending in tribal court, the reasons for exhaustion

cited in National Farmers Union—the policy ofsupporting tribal self-government, the advantages
of allowing a full record to be developed in tribal court, and the benefit of receiving the tribal
court's expertise on these issues of tribal sovereignty—" still apply. Stanko. 916 at 700 (quoting

Duncan Energy Co.. 27 F.3d at 1303 (Loken, J., concurring)). Indeed, in Stanko. the Eighth
Circuit—in a case involving a non-Indian plaintiff alleging that tribal officers violated his
constitutional rights—affirmed dismissal for the plaintifFs "failure to exhaust an available trial

court remedy"to present individual-capacity claims against the involved tribal officers. Id. at 699.
If a non-tribal member luider Eighth Circuit precedent must exhaust tribal court remedies, then
certainly a tribal member should be made to do so.

* Officer Romero's brief suggests that any tribal court cause of action might be time barred under
section 4-2-4 of the Law & Order Code of the Rosebud Sioux Tribe, available at
https://narf.org/nill/codes/rosebudcode/titie4civilprocedm-e.pdf. Whether that statute of
limitations applies or if there might be tolling of the claim is for the tribal court to decide.
21

None of the exceptions to the tribal court exhaustion requirement are applicable here.

Exhaustion is typically not required "where an assertion of tribal jurisdiction 'is motivated by a
desire to harass or is conducted in bad faith,' or where the action is patently violative of express
jurisdictional prohibitions, or where exhaustion would be futile because of the lack ofan adequate
opportunity to challenge the court's jurisdiction." Nat'l Farmers Union Ins. Cos.. 471 U.S. at 857

n. 21 (1985)(citations omitted). There is no evidence, nor has Plaintiff alleged or argued, that the

Officers' assertion of tribal court jurisdiction is in bad faith or is expressly violative of express
jurisdictional prohibitions. In theory, exhaustion could be considered futile ifthe time for bringing
an action in tribal court has passed, but this Court does not know that to be the case. See eenerallv

Krempel v. Prairie Island Indian Cmtv.. 125 F.3d 621 (8th Cir. 1997) (discussing futility
exception). Regardless,"principles ofcomity require that tribal-court remedies must be exhausted

before a federal district court should consider reliefin a civil case regarding tribal-related activities
on reservation land." Id. at 622.

Therefore, the Bivens claim in Count One against Defendants Antman and Romero in their
individual capacities is stayed so that Plaintiff may sue the Officers in the Rosebud Sioux Tribal

Court to seek a remedy there. See eenerallv Fuller v. Ulland. 76 F.3d 957.960-61 (8th Cir. 1996)
("[W]e stated that 'so long as a possibility of return to federal court remains, a stay rather than a
dismissal is the preferred mode of abstention.'"); 186 A.L.R. Fed. 71 (2003)("A court has the
discretion to either dismiss or stay proceedings in such matters pending tribal court exhaustion.");
Armstrong v. Mille Lacs Cntv. Sheriffs Den't. 112 F. Supp. 2d 840, 843(D. Minn. 2000)("As a
Federal District Court, we have the inherent power to stay the proceedings of an action, so as to
control our docket, to conservejudicial resources, and to provide for thejust determination ofcases

which pend before us."). Within twenty-one days of fully exhaxisting whatever remedies are

22

available to her in Tribal Court, Plaintiff may file a motion to lift the stay. Perhaps the tribal court

case will obviate any Bivens claim or case here.'
Counts Two, Three, and Four alleging § 1983 violations are dismissed without prejudice

to filing claims in the Rosebud Sioux Tribal Court. Michaelis v. Nebraska State Bar Ass'n. 717
F.2d 437, 438-39 (8th Cir. 1983)("Ordinarily dismissal of a plaintiffs complaint for failure to
comply with Rule 8 should be with leave to amend."); Holmseth v. Citv of E. Grand Forks. No.
CIV. 14-2970 DWF/LIB,2015 WL 4488424, at *20(D. Minn. July 23,2015)("There is a split in

practice among tiie Federal courts about whether a Rule 12(b)(6) dismissal is normally one with
prejudice or without prejudice. While the Eighth Circuit does not appear to have addressed the
issue directly, decisions from the Eighth Circuit... generally favor dismissals under Rule 12(b)(6)
without prejudice, at least where there is no evidence of persistent pleading failures.").
B. United States' Motion to Dismbs

The United States has moved to dismiss all claims against it. Doc.22. Although Plaintiffs

Complaint names the United States and "Unknown Supervisory Personnel" as defendants, the
counts in the Complaint neither mention the United States or its supervisory personnel nor allege
any wrongdoing by them. Doc. 1.

Under the traditional doctrine ofsovereign immunity, the United States cannot be sued in
federal court without its consent. United States v. Mitchell. 463 U.S. 206, 212 (1983)("It is

axiomatic that the United States may not be sued without its consent and that the existence of

consent is a prerequisite for jurisdiction."). This has been settled law "since at least the midnineteenth century[.]" ^ Wright & Miller 14 Fed. Prac. & Proc. Juris. § 3654 n.2 (4th ed.)

'
Ifthe case is not resolved through a tribal court proceeding,this Court likely will allow discovery
and then reconsider on a motion for summary judgment whether a viable Bivens claim exists.
23

(collecting cases). The Eighth Circuit has held that"Bivens and its progeny do not waive sovereign
immunity for actions against the United States." Laswell v. Brown.683 F.2d 261, 268 (8th Cir.
1982). Nor can the Plaintiffbring a Bivens-tvne action against the United States under the doctrine
of respondeat superior. Id In other words,"[a] Biyens-type action cannot be prosecuted against

the United States govemment[.]" Id; see also Buford v. Runvon. 160 F.3d 1199, 1203 (8th Cir.
1998)("It is well settled that a Bivens action cannot be prosecuted against the United States and
its agencies because ofsovereign immunity."). "Bivens allows for a cause of action for damages
against federal officials," but not against the United States. Patel v. U.S. Bureau of Prisons. 515
F.3d 807,812(8th Cir. 2008)(citing Corr. Servs. Corp. v. Malesko. 534 U.S. 61,72(2001))("The
prisoner may not bring a Bivens claim against the officer's employer, the United States, or the
BOP.").
To bring a Bivens action against federal officials,"the plaintiff must ferret out the officials
directly responsible for the alleged constitutional violation." Laswell. 683 F.2d at 268; see also
Iqbal. 556 U.S. at 676("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution."(emphasis added)). To be sure,"an action may proceed
against a party whose name is unknown if the complaint makes allegations specific enough to

permit the identity of the party to be ascertained after reasonable discovery." Est. of Rosenberg
ex rel. Rosenberg v. Crandell.56 F.3d 35.37(8th Cir. 1995). But"bare allegation[s] that someone

in supervisory authority has been deliberately indifferent, without any specification ofthat person's
contact in fact with the plaintiff, nor even an explicit charge ofinadequate training or supervision
of subordinates, is [injsufficient to state a Bivens claim." Id at 38.

24

Even taking all of Plaintiffs allegations as true, there is nothing to suggest that any
government officials other than Officer Romero and Officer Antman were involved in what led to

Jacob Archambault's death. Although it is not entirely clear from the briefing, Plaintiffappears to
argue that there may be currently unknown federal officials outside ofthe tribe directly responsible
for Archambauifs death by way of the 638 contract between the Tribe and the Bureau of Indian

Affairs. ^Doc. 32 at 7-9. It is unnecessary to decide whether Bivens liability may be imposed
on unknown federal supervisors under the 638 contract, however, because Plaintiff fails to allege
any facts to suggest the level of direct, purposeful involvement necessary to hold those in a
supervisory role liable for a violation of the Plaintiffs constitutional rights under Bivens. See

Iqbal. 556 U.S. at 677 ("In the context of determining whether there is a violation of a clearly
established right to overcome qualified immunity,purpose rather than knowledge is required to
impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true

for an official charged with violations arising from his or her superintendent responsibilities."

(emphasis added)). This Court agrees with the United States that Plaintiffs complaint is entirely
devoid of any allegations related to "who the Unknown Supervisory Personnel are, what they
allegedly did, their position or any other facts that would permit the Unknown Supervisory
Personnel to be noticed or identified through discovery." Doc. 33 at 3.
As to Plaintiffs § 1983 claims, the United States is not a proper defendant. McNallv v.

Pulitzer Pub. Co.. 532 F.2d 69,75 n.7(8th Cir, 1976)("42 U.S.C.§ 1983 is inapplicable to persons
acting under color offederal law."): Accardi v. United States. 435 F.2d 1239,1241 (3d Cir. 1970)
("The United States and other governmental entities are not 'persons' within the meaning of
Section 1983. Therefore, the United States is an improper party in this suit insofar as it is brought
pursuant to Section 1983.")(citations omitted).

25

Beyond die fact that suits against federal officials are not contemplated by § 1983 in the
first place, Plaintiffs § 1983 claims against Unknown Supervisory Persoimel ofthe United States

fail for similar reasons to those brought under Bivens. "Respondeat superior is not applicable to
§ 1983 claims." Ouzts v. Cummings. 825 F.2d 1276, 1277 (8th Cir. 1987)(per curiam)(citation

omitted); see also lobal 556 U.S. at 676 ("[VJicarious liability is inapplicable to ... § 1983 suits .
.. ."). Even if Plaintiff had identified specific supervisory personnel with general responsibility

for overseeing the operations of tribal law enforcement, and somehow alleged they were acting
under the color of state law,that alone would be insufficient to establish the level ofinvolvement

necessary to bring a § 1983 claim directly against said supervisors. See, e.g.. Ouzts. 825 F.2d at
1277 (citing Glick v. Sargent. 696 F.2d 413, 414 (8th Cir.1983)) ("[A] warden's general
responsibility for supervising the operations of a prison is insufficient to establish personal
involvement."). Simply put.Plaintiffhas failed to allege any viable claim against the United States
or supervisory personnel ofthe United States.
IV. Conclusion and Order

For the reasons discussed, it is

ORDERED that Joshua Antman's Motion to Dismiss,Doc.20,is granted in part and denied

only to the extent that this Court does not dismiss the Bivens claim in Count One against the
Officers in their individual capacities. It is further
ORDERED that United States' Motion to Dismiss, Doc. 22,is granted in full. It is further
ORDERED that Jay Romero's Motion to Dismiss, Doc. 25, is granted in part and denied
only to the extent that this Court does not dismiss the Bivens claim in Count One against the
Officers in their individual capacities. It is further

26

ORDERED that this case is stayed to allow Plaintiffto exhaust tribal court remedies, which
this Court expects Plaintiff to promptly do. If Plaintiff does not file a tribal court case within 45

days,the Officers may re-file motions to dismiss. Within twenty-one days offully exhausting her
Tribal Court remedies, Plaintiff should file a motion to liff the stay. The parties are to provide

jointly-filed updates at six-month increments on the progression ofthe tribal court case. It is finally
ORDERED that the caption should now delete as defendants the United States and
Unknown Supervisory Personnel of the United States but should otherwise be as listed on this
Opinion and Order.

DATED this Ig*** day of November, 2022.
BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE

27