Etsitty-Thompson v. USA
MEMORANDUM DECISION granting 10 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ted Stewart on 08/12/2013. (asp)
Etsitty-Thompson v. USA
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS FOR LACK
UNITED STATES OF AMERICA,
Case No. 2:13-CV-159 TS
This matter is before the Court on Defendant’s Motion to Dismiss for Lack of
Jurisdiction. For the reasons discussed below, the Court will grant the Motion.
On October 17, 2010, Officer Dejuan Tolth (“Officer Tolth”), a patrol officer at the
Shiprock Field Office of the Navajo Police Department, went to the home of Plaintiff’s mother in
Aneth, Utah. Officer Tolth was executing a child custody order from the Navajo Nation
Shiprock District Court on Plaintiff’s sister, Regina Etsitty.
Upon arrival, Officer Tolth made contact with Plaintiff’s niece, Euginia Etsitty. Officer
Tolth told Eugenia to call her mother, Regina. Instead, Eugenia Etsitty called Plaintiff, who was
a former clerk for the Navajo Nation District Court system, and asked her to come to the home.
When Plaintiff arrived at the home, she attempted to ascertain what the problem was. At
some point, Officer Tolth stated that he was fed up with Plaintiff’s interference and pulled her
wrists back to handcuff her. As Officer Tolth handcuffed Plaintiff, he began to push her off the
front porch and into her mother’s home. As Officer Tolth pushed Plaintiff across the threshold
of the house, Plaintiff stumbled and pitched headfirst into her mother’s house, landing on the
floor. The handcuffs slipped off of Plaintiff’s wrists during the fall. Officer Tolth then grabbed
Plaintiff by the collar of her shirt and pulled her from the floor.
Officer Tolth later deployed a TASER on Plaintiff, causing her to fall face down onto the
floor. Officer Tolth straddled Plaintiff’s back and again deployed the TASER directly to her
neck and shoulders. Officer Tolth then dragged Plaintiff to the front door of the house and called
Plaintiff was later charged with assault, battery, and interfering with a judicial
proceeding. Plaintiff remained detained for two days. Eventually, all of the charges against
Plaintiff were dismissed.
Plaintiff filed this action against the United States on March 5, 2013, bringing claims for
assault and battery, false imprisonment, false arrest, malicious prosecution, and negligent hiring,
training, and supervision.
II. MOTION TO DISMISS STANDARD
A challenge to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
may take one of two forms. First, a party may bring a facial attack, which “looks only to the
factual allegations of the complaint in challenging the court’s jurisdiction.”1 Second, a party may
bring a factual attack, which “goes beyond the factual allegations of the complaint and presents
evidence in the form of affidavits or otherwise to challenge the court’s jurisdiction.”2
Where, as here, the challenge is a factual attack, “a district court may not presume the
truthfulness of the complaint’s factual allegations. A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule 12(b)(1).”3 Such consideration “does not convert the motion to a Rule 56
motion.”4 Rather, a court is only “required to convert a Rule 12(b)(1) motion to dismiss into a
Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the
jurisdictional question is intertwined with the merits of the case.”5 “The jurisdictional question is
intertwined with the merits of the case if subject matter jurisdiction is dependent on the same
statute which provides the substantive claim in the case.”6
Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir.
Id. (citation omitted).
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
Plaintiff brings her claims under the Federal Tort Claims Act (“FTCA”). The FTCA
waives the sovereign immunity of the United States for certain torts committed by federal
employees. Under 28 U.S.C. § 2680(h), the United States retains its sovereign immunity with
respect to “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process . . . .”7 However, that provision is subject to an exception where
the claim of assault, battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution is committed by an “investigative or law enforcement officers of the United States
The question presented in this Motion is whether Officer Tolth was an “investigative or
law enforcement officer of the United States Government.” An “‘investigative or law
enforcement officer’ means any officer of the United States who is empowered by law to execute
searches, to seize evidence, or to make arrests for violations of Federal law.”9 For the reasons
discussed below, the Court finds that Officer Tolth was not an investigative or law enforcement
officer of the United States Government.
The Indian Self-Determination Education Assistance Act (“ISDEAA”) seeks to increase
“Indian participation in the direction of educational as well as other Federal services to Indian
communities so as to render such services more responsive to the needs and desires of those
28 U.S.C. § 2680(h).
communities.”10 To this end, tribes may enter into “self-determination contracts” with the
Secretary of the Interior and the Secretary of the Department of Health and Human Services to
administer programs or services that would otherwise have been provided by the federal
The Indian Law Enforcement Reform Act (“ILERA”) provides:
While acting under authority granted by the Secretary [of the Interior] . . . , a
person who is not otherwise a Federal employee shall be considered to be . . . an
employee of the Department of the Interior only for purposes of . . . the provisions
of law described in section 3374(c)(2) of Title 5 . . . .”12
5 U.S.C. § 3374(c)(2) provides that “[d]uring the period of assignment, a State or local
government employee on detail to a Federal agency . . . is deemed an employee of the agency for
the purpose of . . . the Federal Tort Claims Act and any other Federal tort liability statute . . . .”
In 2010, the Navajo Nation and Department of Interior entered into a funding agreement,
commonly referred to as a 638 agreement, concerning the provision of law enforcement
services.13 The 638 agreement provides: “For purposes of Federal Tort Claims Act coverage, the
Navajo Nation and its employees are deemed to be employees of the Federal government while
performing work under the contract.”14
25 U.S.C. § 450a(a).
Id. § 450f.
Id. § 2804(f)(1)(A).
Docket No. 10, Ex. A.
Id. at 14.
The 638 agreement incorporates a Statement of Work. The Statement of Work provides
that the Navajo Nation will “perform law enforcement activities as noted in the Indian Law
Enforcement Reform Act.”15 Such services include, among other things, “[e]nforcing applicable
Navajo Nation and federal laws and ordinances.”16
The Statement of Work was amended in July 2010, prior to the incident at issue.
Specifically, the Statement of Work was amended to state that “[t]he Bureau [of Indian Affairs]
may commission any law enforcement officer as a Federal Law Officer as set out in Attachment
A to this Scope of Work.”17 The “Attachment A” refers to a “Deputation Agreement” that was
also incorporated into the 638 agreement.
Under the Deputation Agreement, “[t]he BIA . . . may, in its discretion, issue special law
enforcement commissions [SLEC] to law enforcement officer[s] of another agency . . . .”18
“Navajo Nation, Navajo Division of Public Safety law enforcement officers carrying SLECs
issued by the BIA [p]ursuant to this Agreement are given the power to enforce: All Federal laws
applicable within Indian country . . . .”19 “Officers holding SLECs are treated as BIA police
officers for enforcing Federal laws”20 and “will be deemed an employee of Department of the
Id., Ex. A, Attachment A, at 1.
Id., Ex. B (emphasis added).
Id., Ex. B, Attachment A, ¶ 2.A. (emphasis added).
Id. ¶ 3.A. (emphasis added).
Id. ¶ 6.A. (emphasis added).
Interior for purposes of the Federal Tort Claims Act while enforcing or carrying out laws of the
United States covered by the deputation agreement.”21 The Deputation Agreement makes clear
any Navajo Nation, Navajo Division of Public Safety Law Enforcement Officer
who is deputized by the Bureau of Indian Affairs Special Law Enforcement
Commission will only be deemed an employee of the Department of the Interior
for purposes of the Federal Tort Claims Act while carrying out those laws
applicable to Indian country . . . . Therefore, such officer will not be deemed a
federal employee . . . for purposes of the Federal Tort Claims Act with respect to
the enforcement of law except those applicable in Indian country . . . .22
Defendant admits that Officer Tolth was a federal employee, but disputes that he was an
investigative or law enforcement officer. Various courts have held that a tribal officer who does
not have a SLEC and is not enforcing federal law is not an investigative or law enforcement
officer under the FTCA.23 Defendant has provided evidence that Officer Tolth “has never been
issued a SLEC by the BIA” and thus, “has never been authorized to enforce federal law.”24 In
addition, at the time of the alleged incident, Officer Tolth was enforcing a child custody order
from the Navajo Nation Shiprock District Court, and he arrested Plaintiff for violating tribal law.
Therefore, the Court finds that Officer Tolth was not an investigative or law enforcement officer
of the United States Government.
Id., Preamble (emphasis added).
Id. ¶ 8.B. (emphasis added).
See Boney v. Valline, 597 F. Supp. 2d 1167, 1178-81 (D. Nev. 2009) (discussing cases).
Docket No. 10, Ex. C, ¶ 6.
Plaintiff points to the ISDEAA, the ILERA, and the 638 agreement in support of her
argument that Officer Tolth was acting as an investigative or law enforcement officer for
purposes of the FTCA. However, “[n]othing in the ISDEAA, or in relevant case law, suggest
that the mere existence of a Public Law 93-638 contract between the BIA and a tribe for the
provision of law enforcement services automatically confers federal law enforcement authority
upon the officers in tribal police departments.”25 Indeed, federal regulations provide that “Tribal
law enforcement officers operating under a BIA contract or compact are not automatically
commissioned as Federal officers; however, they may be commissioned on a case-by-case
basis.”26 Such a process would not be necessary if either the ISDEAA or the ILERA
automatically conferred law enforcement status on trial officers.
Further, the ILERA states that an employee is deemed an employee of a federal agency
for purposes of the FTCA “while acting under authority” granted by the Secretary of the Interior.
For the reasons discussed above, Officer Tolth was not acting under any such authority.
As Plaintiff recognizes, “the answer to whether [officers] are ‘law enforcement officers’
under § 2680(h) lies in the particular contract under which the services are carried out.”27 Based
upon the language set forth above, the 638 agreement at issue makes clear that only officers
Trujillo v. United States, 313 F. Supp. 2d 1146, at 1150 (D. N.M. 2003); see also Boney
v. Valline, 597 F. Supp. 2d 1167, 1177 (D. Nev. 2009) (“[N]othing in the ISDEAA, or in relevant
case law, suggests that the mere existence of a 638 contract between the BIA and a tribe for the
provision of law enforcement services automatically confers federal law enforcement authority
upon the officers in tribal police departments.”).
25 C.F.R. § 12.21(b).
Trujillo, 313 F. Supp. 2d at 1150.
holding SLECs and enforcing federal law would be deemed an employee of the Department of
the Interior for purposes of the Federal Tort Claims Act. Thus, while the 638 agreement allowed
for the possibility that a tribal officer could be considered an investigative or law enforcement
officer under the FTCA, the evidence presented shows that Officer Tolth was not. Therefore,
Plaintiff’s claims for assault and battery, false imprisonment, false arrest, and malicious
prosecution must be dismissed for lack of subject matter jurisdiction.
Defendant also seeks dismissal of Plaintiff’s negligent hiring, training, and supervision
claim. Defendant is correct that Plaintiff cannot proceed on her negligent hiring, training, and
supervision claim because that claim arises out of her claims for assault and battery, false
imprisonment, false arrest, and malicious prosecution. Section 2680(h) bars such claims.28
Plaintiff cannot avoid the reach of § 2680(h) by simply labeling the tortious conduct as
In Sheridan v. United States, the Supreme Court recognized that notwithstanding §
2680(h), the FTCA permitted claims arising out of an assault and battery that are the product of
independent acts of negligence by a government official.30 The petitioners in Sheridan brought
suit against the United States after “an obviously intoxicated off-duty serviceman named Carr
28 U.S.C. § 2680(h); see also United States v. Shearer, 473 U.S. 52, 55 (1985) ( holding
that § 2680(h) excludes any claim arising out of assault or battery).
Trujillo, 313 F. Supp. 2d at 1152; see also Shearer, 473 U.S. at 55; Wine v. United
States, 705 F.2d 366, 367 (10th Cir. 1983).
487 U.S. 392 (1988).
filed several rifle shots into” their automobile.31 Prior to the shooting, three government
employees observed Carr “lying face down in a drunken stupor.”32 When they attempted to take
Carr to the emergency room, he broke away and revealed the barrel of a rifle in his bag.33 The
employees fled and took no further action to subdue Carr or notify the appropriate authorities that
he was heavily intoxicated and brandishing a weapon.34
The petitioners sought to overcome the FTCA’s general bar of claims arising out of
intentional torts of government employees based on the negligence of government employees in
allowing Carr to leave the hospital with a loaded rifle in his possession.35 The Supreme Court
determined that “the negligence of other Government employees who allowed a foreseeable
assault and battery to occur may furnish a basis for Government liability that is entirely
independent of Carr’s employment status.”36 The Court held the intentional tort exception to the
FTCA did not apply because the alleged negligence of the three government employees was
independent of Carr’s actions and did not arise out of the battery.37 The intentional tort exception
to the FTCA is therefore not applicable when the tortfeasor’s employment status has no bearing
Id. at 393.
Id. at 395.
Id. at 401.
Vallo v. United States, 298 F. Supp. 2d 1231, 1240 (D. N.M. 2003); see also Sheridan,
487 U.S. at 403.
on a negligence claim against the government which arises out of an incident of assault or
Here, unlike Sheridan, Plaintiff has not provided sufficient allegations to support a
separate or independent negligence claim. The government would have no potential liability
were it not for the fact that Officer Tolth operated under the 638 agreement. Plaintiff makes no
factual showing that any hiring or training procedures were violated or inadequate, nor does she
allege that the government knew or should have known of any misconduct or the foreseeability of
misconduct prior to the incident. Therefore, this claim must be dismissed.
Plaintiff alternatively requests to conduct discovery to determine whether Officer Tolth
was acting as an investigative or law enforcement of the United States Government. Because
there are no facts that would alter the Court’s conclusion, discovery is unnecessary and would not
be helpful. Therefore, this request must be denied.
It is therefore
ORDERED that Defendant’s Motion to Dismiss for Lack of Jurisdiction (Docket No. 10)
The hearing set for September 5, 2013, is STRICKEN. The Clerk of the Court is directed
to close this case forthwith.
Sheridan, 487 U.S. at 403; see also Franklin v. United States, 992 F.2d 1492, 1498-99
(10th Cir. 1993).
DATED August 12, 2013.
BY THE COURT:
United States District Judge
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