United States District Court, D. Arizona
Murray Snow Chief United States District Judge
before the Court is the Motion to Dismiss of Defendants
William P. Barr and Eric S. Dreiband. (“the Federal
Defendants”). (Doc. 30). 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
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.
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
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
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.
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.
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
The Court lacks jurisdiction over the Nation's action
against the Federal Defendants.
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 ...