Mendenhall v. United States

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
WILLIAM H. MENDENHALL,
Plaintiff,
v.
UNITED STATES,
Defendant.
Case No. 3:20-cv-00156-SLG
ORDER RE MOTION TO DISMISS
Before the Court at Docket 7 is Defendant United States’ Motion to Dismiss.
Plaintiff William H. Mendenhall responded in opposition at Docket 8. The United
States replied at Docket 10. After conducting limited jurisdictional discovery,
Plaintiff filed a supplemental opposition at Docket 16.1 The United States filed a
second reply in support of its motion at Docket 17. Oral argument was not
requested and was not necessary to the Court’s decision. For the following
reasons, the United States’ Motion to Dismiss will be granted.
1 Prior to a ruling on the Motion to Dismiss, Plaintiff filed a Motion to Stay Decision on
Defendant’s Motion to Dismiss at Docket 9. Defendant responded in opposition at Docket 11.
Plaintiff replied at Docket 12. The Court construed the motion as one for jurisdictional discovery
and granted limited discovery at Docket 13.
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 1 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 2 of 15
BACKGROUND
The Court set forth the factual and procedural background of this case in its
Order Imposing Stay and Granting Request for Jurisdictional Discovery.2 In
summary, Plaintiff initiated this action in state court, alleging that he was assaulted
and battered by John Ireton, a security guard employed by the Alaska Native Tribal
Health Consortium (“ANTHC”).3 Pursuant to the Federal Tort Claims Act (“FTCA”),
Defendant United States removed the action to federal court and substituted itself
as the defendant.4 Because the question of whether Mr. Ireton was acting within
the scope of his employment at the time of the incident was potentially dispositive
for FTCA purposes, the Court ordered limited discovery on that issue.5 The parties
conducted discovery and filed supplemental briefings.6
2 Docket 13 at 1–4 (Discovery Order).
3 See generally Docket 1-1 (Compl.). ANTHC operates the Alaska Native Medical Center
(“ANMC”), a medical campus in Anchorage.
4 Docket 1 (Notice of Removal); Docket 3 (U.S. Attorney Certification).
5 See generally Docket 13 (Discovery Order). The Court also ordered that the parties could
conduct discovery regarding whether Mr. Ireton was an “investigative or law enforcement
officer” at the time of the incident. Docket 13 at 10 (Discovery Order).
6 Docket 14 (Joint Status Report); Docket 16 (Supp. Opp.); Docket 17 (Second Reply). Plaintiff
filed a related case on December 31, 2020. Mendenhall v. United States, Case No. 3:20-cv-
00312-SLG. The related case concerns the same underlying events here. See Docket 16 at 10
(Supp. Opp.) (“Mr. Mendenhall has filed a separate claim solely for negligence against the
United States under the FTCA because ANTHC was negligent for several reasons
outlined in that complaint.”).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 2 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 3 of 15
LEGAL STANDARD
The FTCA is the exclusive remedy for torts committed by employees of the
United States while acting within their scope of their employment.7 Pursuant to the
Indian Self-Determination and Education Assistance Act (“ISDEAA”), “Congress
provided that Indian tribes, tribal organizations, Indian contractors, and their
employees, may be deemed employees of the [United States] for purposes of the
FTCA when they are carrying out functions authorized in or under a self-
determination contract.”8 The FTCA only applies to claims based on the conduct
of a federal employee, including those deemed an employee under the ISDEAA,
who was “acting within the scope of his office or employment.”9
The Federal Tort Claims Act provides for a limited waiver of sovereign
immunity by granting federal district courts jurisdiction over “civil actions on claims
7 United States v. Smith, 499 U.S. 160, 166 (1991); Wilson v. Drake, 87 F.3d 1073, 1076 (9th
Cir. 1996).
8 Colbert v. United States, 785 F.3d 1384, 1390 (11th Cir. 2015) (citing Pub. L. No. 101–512, §
314, 104 Stat. 1915 (1990) (“[A]n Indian tribe, tribal organization or Indian contractor is deemed
hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior or the Indian
Health Service in the Department of Health and Human Services while carrying out any such
contract or agreement and its employees are deemed employees of the Bureau or Service while
acting within the scope of their employment in carrying out the contract or agreement.... [A]fter
September 30, 1990, any civil action or proceeding involving such claims brought hereafter
against any tribe, tribal organization, Indian contractor or tribal employee covered by this
provision shall be deemed to be an action against the United States and will be defended by the
Attorney General and be afforded the full protection and coverage of the Federal Tort Claims
Act.”)).
9 28 U.S.C. § 1346(b)(1).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 3 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 4 of 15
against the United States . . . for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment.”10 The Act
does not waive sovereign immunity for certain categories of claims, including those
“arising out of assault, battery, [or] false imprisonment.”11 In addition, the FTCA
requires a plaintiff to first exhaust administrative remedies before pursuing a claim
in federal court.12
The question of whether the United States has waived its sovereign
immunity under the FTCA is one of subject matter jurisdiction and may be
considered under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6).13
DISCUSSION
Defendant contends that Mr. Ireton, an employee of ANTHC, was acting
within the scope of his employment at the time of the incident and, therefore, he is
“deemed” a federal employee for FTCA purposes pursuant to the ISDEAA.14
10 28 U.S.C. § 1346(b)(1).
11 28 U.S.C. § 2680(h).
12 28 U.S.C. § 2675(a).
13 See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (applying Rule 12(b)(1) to
motion to dismiss FTCA claim); see also Brownback v. King, 141 S. Ct. 740, 749, 749 n.8
(2021) (holding that in FTCA case, when “pleading a claim and pleading jurisdiction entirely
overlap,” the district court may dismiss the claim under Rule 12(b)(1) or Rule 12(b)(6), or both).
14 Docket 17 at 14 (Second Reply).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 4 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 5 of 15
According to Defendant, the Court lacks subject matter jurisdiction because
Plaintiff did not exhaust his administrative remedies as required by the FTCA and,
alternatively, because there is no relevant waiver of sovereign immunity pursuant
to the intentional torts exception.15 Plaintiff responds that Mr. Ireton was “not a
federal employee” and, alternatively, acted outside the scope of his employment,
such that the FTCA’s provisions—including the intentional torts exception and
exhaustion of administrative remedies requirement—do not apply.16 Plaintiff also
asserts that, even if Mr. Ireton was acting within his scope of employment, Plaintiff
may still move forward with negligence claims against Mr. Ireton in his personal
capacity.17 Plaintiff further asserts that he can still bring other constitutional and
civil rights claims because those claims purportedly “cannot be barred or dismissed
under FTCA.”18
I. Federal Employee
Plaintiff asserts that Mr. Ireton “was not a federal employee” at the time of
the incident.19 Although employees of ANTHC are not actually employed by the
15 See generally Docket 7 (Mot. to Dismiss); Docket 10 (Reply); Docket 17 (Second Reply).
16 Docket 8 at 2 (Opp.); Docket 16 at 2, 4, 6 (Supp. Opp.).
17 Docket 16 at 8 (Supp. Opp.).
18 Docket 16 at 11–12 (Supp. Opp.).
19 Docket 16 at 4, 6 (Supp. Opp.).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 5 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 6 of 15
United States, they are “deemed” to be so for purposes of the FTCA pursuant to
the ISDEAA, so long as they were acting within the scope of their employment.20
II. Scope of Employment
When removing this civil action from state to federal court, the U.S. Attorney
certified that Mr. Ireton “was acting within the scope of his office or employment.”21
That certification “is prima facie evidence that [Mr. Ireton] was acting in the scope
of [his] employment at the time of the incident.”22 A party seeking to challenge the
scope of employment certification “bears the burden of presenting evidence and
disproving the [U.S. Attorney’s] certification by a preponderance of the evidence.”23
“FTCA scope of employment determinations are made ‘according to the
principles of respondeat superior of the state in which the alleged tort occurred.’”24
Here, the alleged tort occurred in Alaska. Under Alaska law, “[t]he scope of
employment is a fact specific inquiry for the jury unless the facts are undisputed or
lend themselves to only one conclusion.”25 Relevant factors include whether the
20 See 25 U.S.C. § 5321(d); Pub. L. No. 101-512, § 314, 104 Stat. 1915 (1990); Docket 3 (U.S.
Attorney Certification).
21 Docket 3 (U.S. Attorney Certification); 28 U.S.C. § 2679(d)(1).
22 Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995).
23 Id.
24 Drake, 87 F.3d at 1076 (quoting Pelletier, 968 F.2d at 876).
25 Lane v. City of Juneau, 421 P.3d 83, 94 (Alaska 2018) (quoting Ondrusek v. Murphy, 120
P.3d 1053, 1057 (Alaska 2005)).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 6 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 7 of 15
employee “(1) performs the kind of work the employee was hired to perform, (2)
acts within the employer’s ‘authorized time and space limits,’ and (3) acts in order
to further the employer’s interests.”26 The Alaska Supreme Court has “noted that
even crimes and intentional torts may be within the scope of employment if they
serve the employer’s interests[.]”27
The Court will address the relevant factors under Alaska law to determine
whether Plaintiff has proven by a preponderance of the evidence that Mr. Ireton
was not acting within the scope of his employment at the time of the incident.
A. Performing the Kind of Work Employee Was Hired to Perform
The Government maintains that Mr. Ireton was acting within the capacity for
which he was hired as a security guard.28 Plaintiff responds that Mr. Ireton’s
actions fall outside his scope of his employment because ANTHC did not have
26 Id. at 95 (quoting Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 349 n.10 (Alaska
1982)). The Alaska Supreme Court has recognized that these factors, which are provided by the
Second Restatement of Agency, are relevant to the scope-of-employment inquiry, but “rejected
the Second Restatement’s view that each of the . . . factors must be satisfied prerequisite to
recovery,” holding instead that the factors “should be weighed by the fact-finder in each case.”
Id. at n.73 (quoting Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 347 (Alaska 1990)).
27 Id. at 94–95.
28 Docket 17 at 4–7 (Second Reply).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 7 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 8 of 15
“formal” policies or training on the use of force and, as a result, Mr. Ireton used
excessive force against Plaintiff.29
Mr. Ireton was hired as a security guard by ANTHC to work at the ANMC
campus.30 His responsibilities included responding to and “assist[ing] with medical
emergencies, alarms and other security related occurrences,” warning “violators
of safety and security rules,” and “restrain[ing] persons engaging in hostile or
criminal acts.”31
Mr. Ireton’s actions during the incident are consistent with his job
responsibilities. During the night of July 27, 2018, Mr. Ireton was working on the
ANMC campus as a security officer.32 After receiving a call for assistance from
hospital staff, Mr. Ireton responded to the security-related incident at a patient’s
room, which involved Plaintiff.33 Upon his arrival, Mr. Ireton attempted to “discuss
things” with Plaintiff.34 Mr. Ireton eventually warned, and then directed, Plaintiff to
29 Docket 16 at 7–11 (Supp. Opp). Plaintiff does not expressly cite or discuss the relevant
scope of employment factors under Alaska law. See generally Docket 16. For clarity, the Court
addresses Plaintiff’s broader scope-of-employment arguments under the first factor.
30 Docket 17-1 at 7:10–22 (Ireton Dep.); Docket 17-2 (Offer of Employment).
31 Docket 17-3 (Security Officer Job Description) (warning that a security guard may “encounter
verbal abuse and/or combative customers or family members”).
32 Docket 17-1 at 7:23–8:14 (Ireton Dep.); Docket 17-4 (Ireton Time Card).
33 Docket 17-1 at 17:11-22; 17-5 (Security Incident Report); see also Docket 17 at 5 (Second
Reply).
34 Docket 17-1 at 9:20–10:10 (Ireton Dep.).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 8 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 9 of 15
leave because he was violating safety and security rules.35 While Mr. Ireton
attempted to escort Plaintiff out, Plaintiff elbowed Mr. Ireton, moving him
backwards.36 Mr. Ireton responded by taking Plaintiff to the ground and then sitting
on his buttocks and placing his arms behind his back—in other words, restraining
a person engaged in a hostile act.37 Thus, Mr. Ireton’s alleged actions during the
incident appear consistent with the type of work he was hired to perform.
Plaintiff does not directly dispute that Mr. Ireton was performing the type of
work he was hired to do. Instead, Plaintiff asserts that “Mr. Ireton’s use of force
against Mr. Mendenhall falls outside the scope of his employment” because
ANTHC did not have a “formal policy authorizing . . . security guards to use force
when dealing with individuals on campus” or a formal training program for use of
force.38 The Court does not find this argument persuasive. First, Plaintiff does not
explain how Mr. Ireton’s on-the-job training is insufficient or what would constitute
an adequate “formal” training regimen.39 Second, ANMC has written policies
35 Docket 17-1 at 45:24–46:24 (Ireton Dep.). Other ANMC staff, including the Behavioral Health
Specialist, and another patient had also asked Plaintiff to leave. Docket 17-1 at 16:18–17:1,
18:22–19:19 (Ireton Dep.). Plaintiff was allegedly requesting paperwork of a patient to whom he
was not related. Docket 17 at 5 (citing Docket 17-1 at 7:11–18:5 (Ireton Dep.)).
36 Docket 17-1 at 24:22-25:4 (Ireton Dep.).
37 Docket 17-1 at 25:5–28:8 (Ireton Dep.).
38 Docket 16 at 7 (Supp. Opp).
39 Docket 16 at 6–11 (Supp. Opp.); see also Docket 17-1 at 19:23–20:1, 32:18–33:3, 35:19–22,
36:20–37:7, 37:19–38:14. (Ireton Dep.) (describing on-the-job training).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 9 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 10 of 15
regarding the use of force, and Mr. Ireton acknowledged that, as an ANTHC
employee at ANMC’s campus, he had reviewed those policies.40 While Mr. Ireton
did not specifically recall these policies at his deposition, his testimony
demonstrated that his understanding of the appropriate amount of force was
consistent with ANMC’s policies.41 Third, Plaintiff cites no legal authority for the
proposition that a lack of “formal” training or policy means Mr. Ireton was acting
outside the scope of his employment.
Plaintiff also asserts that Mr. Ireton used excessive force and, therefore, he
was acting outside the scope of employment.42 Plaintiff does not adduce sufficient
evidence that Mr. Ireton did, in fact, use excessive force. Further, even if Mr. Ireton
used excessive force, he could still be acting within the scope of his employment
under Alaska law.43
40 Docket 17-8 at 3 (Security Policies Reference Binder).
41 Compare Docket 17-1 at 22:9–12, 38:9–14 (Ireton Dep.) (“Q. What is your understanding
about force that you? A. Use the minimal amount of force to prevent injury to myself or others.”)
with Docket 17-9 at ¶ 3.7 (Code Gray Procedures) (“The Code Gray responders will use a
progressive approach to manage the threatening or aggressive individual and to minimize harm
and use the least force necessary to control the situation.”) and Docket 17-10 at ¶ 3.2.4
(Security Management Program Procedure) (“Security officers shall use the least amount of
force necessary to restrain or to control situations such as a combative or unruly
individual . . . .”).
42 Docket 16 at 8–10 (Supp. Opp).
43 See Lane, 421 P.3d 83 at 94–95 (“An employee’s conduct does not fall outside the scope of
employment simply because it is discouraged, or even prohibited”); Laidlaw Transit, Inc. v.
Crouse ex rel. Crouse, 53 P.3d 1093, 1098–99 (Alaska 2002) (holding school bus company
vicariously liable for accident caused by driver under influence of marijuana, even though
company explicitly forbid marijuana use and driver was reckless).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 10 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 11 of 15
In conclusion, Plaintiff has not shown by a preponderance of the evidence
that Mr. Ireton was not performing the type of work that he was hired to perform.
B. Authorized Time and Space Limits
The next factor considered is whether Mr. Ireton was acting within ANTHC’s
time and space limits during the alleged incident. According to Defendant, Mr.
Ireton was working in his capacity as a security guard at the time of the incident.44
And he was assigned to provide security to the “entire [ANMC] campus.”45 Plaintiff
offers no rebuttal here. In fact, Plaintiff’s version of events support the conclusion
that Mr. Ireton was within his authorized space and time limits.46 Accordingly, the
Court finds that Plaintiff has not shown by a preponderance of the evidence that
Mr. Ireton was acting outside of ANTHC’s authorized space and time limits.
C. Acting in Furtherance of Employer’s Interests
The final question is whether Mr. Ireton acted to further his employer’s
interests. According to Defendant, “[a]t all relevant times, Mr. Ireton was acting to
further his employer’s interests in maintaining a safe and secure environment on
44 Docket 17 at 12 (citing Docket 17-1 at 7:23–8:14 (Ireton Dep.); Docket 17-4 (Ireton Time
Card)).
45 Docket 17-1 at 9:1–3 (Ireton Dep.); Docket 17-5 (Incident Report).
46 Docket 16 at 2 (“John Ireton worked in the security department of the Alaska Native Tribal
Health Consortium (ANTHC) for approximately six years. On July 2[7], 2018, he responded to a
report of a potential disturbance in a patient room at the Alaska Native Medical Center
(ANMC).”) (citation omitted).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 11 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 12 of 15
the ANMC campus.”47 Plaintiff does not provide any evidence rebutting
Defendant’s assertion. Accordingly, Plaintiff has not shown by a preponderance
of the evidence that Mr. Ireton was not acting to further ANTHC’s interests.
In conclusion, the Court finds that Plaintiff has not disproven the U.S.
Attorney’s scope of employment certification by a preponderance of the evidence.
Mr. Ireton is therefore “deemed” a federal employee for FTCA purposes pursuant
to the ISDEAA. Accordingly, the FTCA is Plaintiff’s exclusive remedy.
III. Exhaustion of Administrative Remedies
Because the FTCA applies here, Plaintiff must have exhausted his
administrative remedies before pursuing this claim in federal court.48 Defendant
asserts that, “[a]ssuming that the United States is the proper defendant, there is
no dispute that the Court lacks jurisdiction over the present lawsuit because
Plaintiff did not exhaust his administrative remedies before filing this suit.”49
Plaintiff essentially agrees, stating that the FTCA “administrative exhaustion
47 Docket 17 at 13 (Second Reply); Docket 17-3 at 1 (Security Officer Job Description)
(summarizing security guard job as, in part, providing “a safe and secure environment for
employees, patients and visitors by protecting ANTHC . . . property against fire, theft, harm,
vandalism, and illegal entry.”).
48 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States
. . . unless the claimant shall have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in writing and sent by certified or
registered mail.”).
49 Docket 17 at 16 (Second Reply); Docket 7 at 4–5 (Mot. to Dismiss); Docket 10 at 6–7 (Reply).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 12 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 13 of 15
requirement applies only if Mr. Ireton was ‘acting within the scope of his office or
employment[.]’”50
On February 13, 2020, Plaintiff brought suit in state court.51 Plaintiff then
submitted an SF-95 administrative claim form in March 2020.52 On June 29, 2020,
Defendant removed the action to federal court, prior to the resolution of Plaintiff’s
administrative claim.53 Accordingly, the Court finds that Plaintiff did not exhaust
his administrative remedies and therefore lacks subject matter jurisdiction over
Plaintiff’s claims.54
IV. Plaintiff’s Additional Arguments
Plaintiff makes two other assertions. First, Plaintiff maintains that “[e]ven if
this court were to rule that Mr. Ireton’s use of force fell within the scope his
50 Docket 16 at 5–6 (Supp. Opp.).
51 Docket 1-1 (Compl).
52 Docket 7-1 (SF-95).
53 See Docket 1 (Notice of Removal); see also Docket 8 at 5 (Opp.) (“Mr. Mendenhall filed his
claim with the federal Department of Health and Human Services on March 20, 2020, which
gives them until September 20, 2020 to render a decision.”).
54 McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies.”); D.L. by & through
Junio v. Vassilev, 858 F.3d 1242, 1245, 1247 (9th Cir. 2017) (“In general, the FTCA's
exhaustion requirement demands that a plaintiff exhaust his administrative remedies before he
files an FTCA claim in federal court.”); Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985)
(“The claim requirement of section 2675 is jurisdictional in nature and may not be waived.”);
Staple v. United States, 740 F.2d 766, 768 (9th Cir. 1984) (“We hold, therefore, that jurisdiction
under section 2675(a) is determined as of the date that the Attorney General removes the suit to
federal court, rather than the date the plaintiff files the action against the [defendant] in state
court.”).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 13 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 14 of 15
employment, [Plaintiff] is still permitted to proceed against Mr. Ireton in his
individual capacity” because the “FTCA does not bar claims against federal
employees for intentional torts such as assault and battery if their actions were
deemed to be negligent.”55 Plaintiff is mistaken. The FTCA provides the sole
remedy against federal tortfeasors acting within the scope of their employment; it
is “exclusive of any other civil action or proceeding for monetary damages.”56
Second, Plaintiff maintains that he can bring other constitutional and civil rights
claims under the United States and Alaska Constitutions.57 But Plaintiff provides
no legal basis from which this Court could determine that such claims could move
forward. For a plaintiff to have a claim under 42 U.S.C. § 1983 or Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), a defendant must be a
state or federal actor, respectively. Mr. Ireton is plainly not a state actor and is
only considered a “federal employee” for FTCA purposes.58 Additionally, Alaska
does not recognize tort claims for implied constitutional causes of action.59
Accordingly, Plaintiff’s two additional arguments lack merit.
55 Docket 16 at 8 (Supp. Opp.).
56 Drake, 87 F.3d at 1076 (quoting 28 U.S.C. § 2679(b)(1)); Smith, 499 U.S. at 166.
57 Docket 16 at 11–12 (Supp. Opp.); Docket 1-1 at 4 (Compl.) (Fourth Cause of Action).
58 See supra n.8; see also Sanchez v. Baracker, Case No. CIV 01-0299, 2002 WL 35649877, at
*1–2 (D.N.M. June 10, 2002) (rejecting that tribal actors become federal actors for purposes of a
Bivens action by virtue of the ISDEAA).
59 Lowell v. Hayes, 117 P.3d 745, 753 (Alaska 2005).
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 14 of 15

Case No. 3:20-cv-00156-SLG, Mendenhall v. United States
Order re Motion to Dismiss
Page 15 of 15
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant’s Motion to Dismiss
at Docket 7 is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s Complaint
at Docket 1-1 is DISMISSED for lack of subject matter jurisdiction.
DATED this 17th day of March, 2021 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:20-cv-00156-SLG Document 19 Filed 03/17/21 Page 15 of 15