Navajo Nation v. Barr

          ORDER

          G. Murray Snow Chief United States District Judge

         Pending before the Court is the Motion to Dismiss of Defendants William P. Barr and Eric S. Dreiband. (“the Federal Defendants”). (Doc. 30).^[1] Defendants City of Winslow, Officer Ernesto Cano, and Chief Stephen Garnett (“the Winslow Defendants”) join the Federal Defendants' Motion. (Doc. 49). Plaintiff Navajo Nation (“the Nation”) responded to the Federal Defendants' motion (Doc. 38) but did not respond to the Winslow Defendants' Joinder. For the following reasons the motion is granted as to both the Federal Defendants and the Winslow Defendants.

         BACKGROUND

         Loreal Tsingine, a member of the Navajo Nation (“the Nation”), was killed by officers of the Winslow Police Department during a confrontation over alleged shoplifting. After an investigation by the Arizona Department of Public Safety, the Maricopa County Attorney's Office determined that prosecution of the officers involved was not warranted. The Navajo Nation President, Russell Begaye, then wrote to U.S. Attorney General Loretta Lynch seeking an investigation into Tsingine's death. The U.S. Department of Justice was ultimately unable to conclude, after extensive investigation, that the officers involved had not acted in self-defense.

         Moe Robbins, the father of Tsingine's young daughter, Tiffany Robbins, thereafter assigned Tiffany's legal claims to the Navajo Nation. The Nation then filed this action. It asserts a claim for money damages against the Federal Defendants under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and two wrongful death claims under 42 U.S.C. § 1983 against the Winslow Defendants. The Nation requests both money damages and injunctive relief against both the Federal and Winslow Defendants.

         The Federal Defendants move to dismiss the case against them on the grounds that the Court lacks jurisdiction to hear the claim and, alternatively, that the Nation lacks standing to bring the Bivens claim against them. The Winslow Defendants, in addition to their joinder of the Federal Defendants' motion, assert that (1) the Nation lacks standing to bring the claim because the claim was not assignable; (2) the Nation lacks organizational standing; and (3) the Nation also lacks standing under the doctrine of parens patriae.

         DISCUSSION

         I. Legal Standards

         The federal courts are courts of limited jurisdiction. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). When subject matter jurisdiction is challenged, the party asserting jurisdiction has the burden of establishing that it exists. Kingman Reef Atoll Investments, L.L.C., v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008). Parties may bring either facial or factual subject matter jurisdiction challenges. When resolving a facial attack on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the Court accepts the allegations of the complaint as true. Mason v. Arizona, 260 F.Supp.2d 807, 815 (D. Ariz. 2003).

         II. Analysis

         The Navajo Nation brings its claims both in parens patriae and on behalf of Tiffany Robbins. In Count One, the Nation alleges a claim for wrongful death under 42 U.S.C. § 1983 against Officers Shipley and Cano, the individuals involved in Ms. Tsingine's death. Count One claims damages both on Tiffany's behalf and in parens patriae on behalf of Navajo Nation members. Count Two is a claim for wrongful death under § 1983 against the City of Winslow and former Police Chief Garnett. It claims damages for Tiffany because of the wrongful death of her mother, and damages for Navajo Nation members for policies and customs “that exhibit deliberate indifference to the constitutional rights of persons who are arrested in the City of Winslow and for allowing the use of excessive and unnecessary force.” (Doc. 1 at 13). Count Three asserts a claim under Bivens for violation of the equal protection rights of Navajo Nation members for the Federal Defendants' decision not to prosecute the Winslow police officers involved in the shooting. Count Three is not brought on behalf of Tiffany Robbins.

         As discussed in more detail below, the Bivens claim fails for lack of standing. The § 1983 claims on behalf of Tiffany Robbins fail because her wrongful death claims are not assignable under Arizona law. The § 1983 damages claims brought on behalf of Navajo Nation members in Winslow fail because the Nation lacks organizational standing and parens patriae standing. And the claim for injunctive relief under § 1983 likewise fails to state a plausible claim for relief.

         A. The Court lacks jurisdiction over the Nation's action against the Federal Defendants.

         In Bivens, the Supreme Court recognized a cause of action for money damages against federal actors for violations of the Fourth Amendment. 403 U.S. at 389. The Court has since extended Bivens to violations of the Due Process Clause of the Fifth Amendment and the Cruel and Unusual Punishments ...