United States District Court, D. Arizona
STEPHEN M. McNAMEE, Senior District Judge.
Pending before the Court is Defendant United States of America's Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. (Doc. 12.) The United States subsequently also submitted a Notice of Substitution. (Doc. 18.) The parties have properly responded and the matter is fully briefed. (Docs. 19-21.) After carefully considering the briefing, the Court makes the following ruling.
A. Statutory Background
In 1975, Congress enacted the Indian Self-Determination and Education Assistance Act of 1975 ("ISDEAA"), Pub. L. 93-638, 88 Stat. 2203 (Jan. 4, 1975). "The ISDEAA created a system by which tribes could take over the administration of Programs operated by the [Bureau of Indian Affairs]." Shirk v. U.S. ex rel. Dep't of Interior, 773 F.3d 999, 1001 (9th Cir. 2014) (quoting Los Coyotes Band of Cahuilla & Cupeño Indians v. Jewell, 729 F.3d 1025, 1033 (9th Cir. 2013)) (internal quotations omitted). Under the ISDEAA, a tribe "receiving a particular service from the BIA may submit a contract proposal to the BIA to take over the program and operate it as a contractor and receive the money that the BIA would have otherwise spent on the program." Shirk, 773 F.3d at 1001.
B. Factual Background
Plaintiff Ruby Gatling brought the present action on April 30, 2015, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2674, et seq., and Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), alleging claims of negligence, assault, battery, denial of due process, illegal search and seizure, and cruel and unusual punishment. (Doc. 1.) Plaintiff alleges that that on March 15, 2014, she was arrested without explanation and taken to the Window Rock Jail, located on the Navajo Indian reservation in northeastern Arizona. (Id. ¶ 7.) Plaintiff states that while incarcerated, Defendants April Ashley and Eric Williams, both Navajo tribal correctional officers, hit her in the face, fractured her arm, kicked her multiple times, and threw her to the ground causing a severe head injury. (Id. ¶¶ 8-9.) Plaintiff does not allege that Defendant Delores Greyeyes, the director of the Navajo Department of Corrections, participated in the alleged assault and battery, but rather "wrongfully deprived Plaintiff of her liberty by holding her in the Window Rock Jail from March 15-18, 2014 without probable cause, due process and without reasonable suspicion that she had committed an offense." (Id. ¶ 6.) Furthermore, Plaintiff alleges that the United States was negligent on a theory of vicarious liability, or negligent hiring and supervision, for the Navajo Nation's failure "to conform to its legal duty to properly supervise the Individual Defendants." (Id. ¶ 13.)
At the time of the alleged incident, the Navajo Nation had a contract pursuant to the ISDEAA with the Secretary of the Interior to provide adult corrections services to the Navajo Nation. (Doc. 18 ¶ 5.) Defendants Ashley, Williams, and Greyeyes were engaged in the performance of functions covered by this contract and were acting within the scope of their employment as employees of the United States through its agency, the Bureau of Indian Affairs. (Id. ¶¶ 5, 7; Doc. 18-1.) Pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, §§ 5, 6, Pub. L. No. 100-694 (1988) ("Westfall Act") (codified at 28 U.S.C. § 2679(d)(2)), the U.S. is substituted for the individual Defendants Ashley, Williams, and Greyeyes for the negligence, battery, and assault claims. (Doc. 18 at 1.)
II. STANDARD OF REVIEW
The defense of lack of subject matter jurisdiction may be raised at any time by the parties or the Court. See Fed.R.Civ.P. 12(b)(1) and 12(h)(3). Plaintiff, as the party seeking to invoke the jurisdiction of the court, bears the burden of establishing subject matter jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936); Fenton v. Freedman, 748 F.2d 1358, 1359 (9th Cir. 1994). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either a facial or a factual challenge. When the moving party facially challenges jurisdiction based on the allegations in the complaint, the court must consider all the allegations in the complaint as true, and will not look beyond the face of the complaint to determine jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). On the other hand, when a court reviews a complaint under a factual challenge, the allegations have no presumptive truthfulness, Ritza v. International Longshoremen's and Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (internal quotation ommitted), and the court is not limited to the allegations in the pleadings if the "jurisdictional issue is separable from the merits of [the] case." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Rather, the court that must weigh the evidence has discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts. See Valdez v. United States, 837 F.Supp. 1065, 1067 (E.D. Cal. 1993), aff'd, (9th Cir. 1995); Mortensen, 549 F.2d at 891.
A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While "a complaint need not contain detailed factual allegations... it must plead enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id . (quoting Twombly, 550 U.S. at 555) (internal citations and quotation marks omitted).
When analyzing a complaint for failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). "Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). When exercising its discretion to deny leave to amend, "a court must be guided by the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).
A. Plaintiff's Claims for Denial of Due Process (Claim 2), Illegal Search and Seizure (Claim 3), and Cruel ...