Roemen v. United States of America et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICAH ROEMEN,
Plaintiff,
vs.
UNITED STATES OF AMERICA, ROBERT
NEUENFELDT, individually and UNKNOWN
SUPERVISORY PERSONNEL OF THE
UNITED STATES, individually,
Defendants.
4:19-CV-4006-LLP
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN
PART MOTION TO DISMISS
Pending before the Court is a Motion to Dismiss, Doc. 8, filed by defendant, Robert
Neuenfeldt (“Neuenfeldt”). 	For the following reasons, Neuenfeldt’s Motion to Dismiss is
granted in part and denied in part.
BACKGROUND
On June 18, 2017, Plaintiff, Michal Roemen (“Plaintiff”) and Morgan Ten Eyck (“Ten
Eyck”) were passengers in a vehicle driven by Tahlen Bourassa (“Bourassa”). 	Doc. 21, ¶¶ 11-
13. 	Plaintiff is resident of Minnehaha County, South Dakota. 	Doc. 21, ¶ 1. 	Neither Plaintiff,
Bourassa, or Ten Eyck are Indians. Docs. 27-29.
Plaintiff alleges that in the early morning hours of June 18, 2017, Flandreau Tribal Police
Officers, along with Moody County Deputy Sheriffs, the South Dakota Highway Patrol, and the
City of Flandreau Police Department stopped a vehicle driven by Bourassa. 	Doc. 21, ¶ 13.
Plaintiff alleges that defendant Neuenfeldt, Chief of Police for Flandreau Santee Sioux Tribe
threatened to take Bourassa to jail and that Bourassa then fled in his vehicle accompanied by
Plaintiff and Ten Eyck as passengers. Doc. 21, ¶ 14. The police report of the incident states that
Neuenfeldt encountered Plaintiff when assisting Moody County Sheriff’s Deputies in conducting
a security check on a non-tribally-owned, rural property near Dell Rapids, South Dakota. Doc.
29. 	The Sheriff’s Deputies had encountered approximately 20 people having a party on the
property without permission from the property owner and issued several citations for underage
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alcohol consumption. 	Doc. 29. 	The scene of the operative events was miles away from the
Flandreau Santee Sioux Reservation.
Neuenfeldt and an uncertified deputy for Moody County Sheriff’s Office initiated pursuit
in Neuenfeldt’s tribal police cruiser. Doc. 21, ¶ 15. The South Dakota Highway Patrol was also
initially involved in the pursuit. 	Doc. 21, ¶ 16. 	It is alleged that “it is believed” that neither
Bourassa, Plaintiff, nor Ten Eyck had committed any crimes to justify the pursuit. Doc. 21, ¶ 17.
At the time Bourassa’s vehicle was stopped, Neuenfeldt and the other officers on the scene knew
the identity of the driver, Bourassa, and knew that he was actively being monitored by the South
Dakota Parole Board through a GPS ankle bracelet. Doc. 21, ¶¶ 18, 19.
The pursuit took place over thirty minutes reaching speeds in excess of 100 miles per
hour on gravel roads. Doc. 21, ¶ 20. On two occasions, spike strips were laid out without proper
authorization. 	Doc. 21, ¶ 21. 	Plaintiff alleges that it is believed that Neuenfeldt disregarded
orders to terminate the pursuit. 	Doc. 21, ¶ 25. 	Once the South Dakota Highway Patrol
terminated pursuit, Neuenfeldt and his passenger, a deputy from the Moody County Sheriff’s
Office, continued the pursuit. Doc. 21, ¶ 26. Just prior to the accident, spike strips were laid out
and a barricade of police cars forced Bourassa to take a take a dead-end gravel road. Doc. 21, ¶
22. 	Plaintiff alleges that Defendants “knew the dead-end road would result in an accident.”
Doc. 21, ¶ 23. In the course of the pursuit, Bourassa lost control of his vehicle and rolled several
times, throwing all three occupants from the vehicle. 	Doc. 21, ¶ 26. 	In the accident, Plaintiff
sustained a serious closed head injury, pulmonary contusion, broken wrist, vertebral body
factures at C1, C2, and C6 and required a halo placement. Doc. 21, ¶ 28. Plaintiff has sustained
thousands of dollars in medical bills. Doc. 21, ¶ 29.
On or about April 27, 2018, Plaintiff submitted an Administrative Tort Claim in the
amount of $1,000,000 to the United States Department of the Interior pursuant to 28 U.S.C. §
2675. Doc. 21, ¶ 7. On December 3, 2018, the United States Department of the Interior denied
Plaintiff’s administrative claim. Doc. 21, ¶ 8.
On January 14, 2019, Plaintiff filed a complaint against the United States of America;
Robert Neuenfeldt, individually; and Unknown Supervisory Personnel of the United States,
individually. Doc. 1. In his complaint, he alleged claims of negligence against “Defendants;” a
claim against Neuenfeldt under Bivens v. Six Unknown Named Agents of Federal Bureau of
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Narcotics, 403 U.S. 288, 397 (1971); a common law assault and battery claim against
Neuenfeldt; and a Bivens action against Unknown Supervisory Personnel of the United States.
Doc. 1.
On March 12, 2019, Defendant Robert Neuenfeldt filed a motion to dismiss the claims
against him. Doc. 8. Therein, Neuenfeldt argues that such claims are barred by tribal sovereign
immunity because the Amended Complaint alleges that Neuenfeldt was acting as the Tribe’s
Chief of Police when he allegedly engaged in such conduct. Doc. 9 at 7. To the extent the Court
considers Neuenfeldt to be a federal employee1 for purposes of the negligence claim alleged
against him in Count I of the Amended Complaint, Neuenfeldt argues that the United States is
the proper party under the Federal Tort Claims Act (“FTCA”). With regard to the Bivens claim
alleged against him in Count II of the Amended Complaint, Neuenfeldt argues that there is
nothing within Bivens, or any other authority relied upon by Plaintiff, to suggest that Bivens
provides Plaintiff with a cause of action against employees of a tribal government.
On March 18, 2019, the United States Attorney filed a Certification of Scope of
Employment pursuant to 28 C.F.R. § 15.4, Doc. 12, certifying that Officer Neuenfeldt was an
employee of the federal government and was acting within the scope of his office or employment
at the time of the alleged conduct with respect to Counts I and III of the complaint alleging
negligence and common law assault and battery. 	The Certification further states that Officer
Neuenfeldt was not acting within the scope of his employment with respect to Counts II and IV
of the complaint alleging Bivens claims against Neuenfeldt and Unknown Supervisory Personnel
of the United States for alleged violations of his Constitutional rights. 	The United States
Attorney states in its certification that constitutional tort claims such as those alleged in Counts
II and IV are not cognizable under the FTCA, and that the United States and its agencies are not
proper Bivens defendants due to sovereign immunity. 	Doc. 12 at 5, n.2 (citing Washington v.
Drug Enforcement Admin., 183 F.3d 868, 874 (8th Cir. 1999) and Schutterle v. United States, 74
F.3d 846, 848 (8th Cir. 1996)).
On April 1, 2019, the Court granted an unopposed motion to amend/correct complaint
and Plaintiff filed his Amended Complaint on April 9, 2019. Docs. 16, 19, 21. The allegations
1 It is alleged that at all relevant times, Neuenfeldt was performing functions under a contract entered into by and
between the Tribe and the Federal Government pursuant to 25 U.S.C. § 5321.
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and causes of action in the Amended Complaint are virtually identical to those alleged in the
initial complaint. As in the initial complaint, in the Amended Complaint, Plaintiff alleges that at
all relevant times, the employees of the Police Department of the Tribe were performing
functions pursuant to a Section 638 contract entered into with the United States Government
which renders them employees of the United States Government. 	Doc. 21, ¶ 5. 	Plaintiff also
alleges that at all relevant times, Neuenfeldt was acting as the Tribe’s Chief of Police under color
of state and federal law. Doc. 21, ¶ 6.
STANDARD OF REVIEW
Neuenfeldt has moved to dismiss Plaintiff’s claims against him for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
Rule 12(b)(1) Standard
Neuenfeldt argues that this court lacks subject matter jurisdiction over the claims against
him because tribal sovereign immunity extends to his actions. 	The assertion of tribal
“[s]overeign immunity is a jurisdictional question” which should be considered irrespective of
the merits. Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995); see also Pan Am.
Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir. 1989). 	If Neuenfeldt
“possess[es] sovereign immunity, then [this court has] no jurisdiction to hear [plaintiff’s claims
against him].” See Rupp, 45 F.3d at 1244.
Rule 12 provides in part that “a party may assert the following defenses by motion: . . .
lack of subject-matter jurisdiction . . . .” 	Fed. R. Civ. P. 12(b)(1). 	When moving to dismiss
under Rule 12(b)(1), a party “may assert either a ‘facial’ or ‘factual’ attack on jurisdiction.”
Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). 	A facial attack on jurisdiction “is
based on the complaint alone or on undisputed facts in the record.” 	Harris v. P.A.M. Transp.,
Inc., 339 F.3d 635, 637 (8th Cir. 2003). In a facial attack, the court restricts itself to the face of
the pleadings, and the non-moving party receives the same protections as it would defending
against a motion brought under Rule 12(b)(6). 	Carlsen v. GameStop, Inc., 833 F.3d 903, 908
(8th Cir. 2016). 	In a factual attack, the court considers matters outside the pleadings, and the
non-moving party does not have the benefit of 12(b)(6) safeguards. 	Id. 	Considering “matters
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outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1)” does
not “convert the 12(b)(1) motion to one for summary judgment.” Harris, 339 F.3d at 637 n.4.
Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its
very power to hear the case—there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case. 	In short, no presumptive truthfulness attaches to the plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.
Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). 	Plaintiff, as the party invoking
jurisdiction, bears the burden to establish it. See Green Acres Enters., Inc. v. United States, 418
F.3d 852, 856 (8th Cir. 2005).
Neuenfeldt does not specify whether he is a factually or facially challenging subject
matter jurisdiction. Neuenfeldt did not file any supporting affidavits or other evidence factually
attacking jurisdiction with regard the claims asserted against him, nor has he requested an
evidentiary 	hearing. 	Instead, 	Neuenfeldt 	argues 	that 	because 	Plaintiff 	has 	alleged 	that
Neuenfeldt was acting in his capacity as the Tribe’s Chief of Police at all times relevant to this
action, Plaintiff’s claims against him are barred by tribal sovereign immunity.
As discussed in more detail below, the fact that Neuenfeldt was acting at all times in his
capacity as the Tribe’s Chief of Police is insufficient, on its own, to invoke the doctrine of tribal
sovereign immunity. 	However, in the Court’s initial review of Neuenfeldt’s motion, the Court
found that Plaintiff had pleaded insufficient facts establishing subject matter jurisdiction over the
claims alleged against Neuenfeldt. 	Because it is plaintiff’s burden to establish jurisdiction, the
Court ordered the parties to provide additional factual information to aid the Court it its
jurisdictional analysis. 	The undisputed facts provided by the parties in response to the Court’s
order, along with the facts alleged in the Complaint, are sufficient to permit the Court to now
rule on the jurisdictional issue raised by Neuenfeldt in his motion to dismiss—that of tribal
sovereign immunity.
Rule 12(b)(6) Standard
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
factual allegations of a complaint are assumed true and construed in favor of the plaintiff, “even
if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is
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very remote and unlikely.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (internal
quotations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds' of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” 	Id. at 555 (internal citations omitted). 	The
complaint must allege facts, which, when taken as true, raise more than a speculative right to
relief. Id.; Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but has not ‘show[n]’—‘that the pleader is entitled to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed. R. Civ. P. 8(a)(2)). 	“Determining
whether a complaint states a plausible claim for relief is a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. (citation omitted).
When considering a motion to dismiss under Rule 12(b)(6), the court generally must
ignore materials outside the pleadings, but it may consider “‘some materials that are part of the
public record or do not contradict the complaint,’ as well as materials that are ‘necessarily
embraced by the pleadings.’” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.
1999) (citations omitted). 	In general, material embraced by the complaint include “documents
whose contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleadings.” Ashanti v. City of Golden Valley, 666 F.3d 1148,
1151 (8th Cir. 2012).
DISCUSSION
I. 	Sovereign Immunity
Neuenfeldt argues that because it is alleged and undisputed that at all relevant times, he
was acting in his capacity as the Tribe’s Chief of Police, Plaintiff’s claims against him are, in
essence, official capacity claims and are barred by tribal sovereign immunity.
As sovereign powers, federally-recognized Indian tribes possess immunity from suit in
federal court. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Alltel Commc’ns, LLC v.
DeJordy, 675 F.3d 1100, 1102 (8th Cir. 2012). In this case, Plaintiff is proceeding under Bivens
against Neuenfeldt in his individual capacity. 	However, “a plaintiff cannot circumvent tribal
immunity ‘by the simple expedient of naming an officer of the Tribe as a defendant, rather than
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the sovereign entity.’” 	Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008);
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997) (stating that in determining
whether a state official may be liable for money damages in his official capacity, courts should
not rely wholly on “the elementary mechanics of captions and pleading.”). In order to determine
if sovereign immunity applies, courts must ask whether lawsuits brought against officers or
employees of the tribe “represent only another way of pleading an action against an entity of
which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). If the court
answers that question in the affirmative, then the action is an official capacity action, and the
individual employee is entitled to sovereign immunity. See id. at 167.
An allegation, such as that made by Neuenfeldt, “that an employee [such a Neuenfeldt]
was acting within the scope of his employment at the time the tort was committed is not, on its
own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity.”
See Lewis v. Clarke, 137 S.Ct. 1285, 1288 (2017) (emphasis added). 	Instead, courts must
determine whether tribal sovereign immunity applies by evaluating whether the sovereign is the
“real party in interest.” Lewis, 137 S.Ct. at 1290. “[T]he general criterion for determining when
a suit is in fact against the sovereign is the effect of the relief sought.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 107 (1984). Thus,
[a] suit is against the sovereign if ‘the judgment sought would expend itself on the
public treasury or domain, or interfere with the public administration,’ or if the
effect of the judgment would be ‘to restrain the Government from acting or to
compel it to act.’
Pennhurst, 465 U.S. 89 at 102, n.11 (citing Dugan v. Rank, 372 U.S. 609, 620 (1963)); see also
Rochester Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006, 1012 (8th Cir. 1984) (“It is well
established that agents, even government agents, may be subject to liability either in tort or in
contract . . . ‘[T]he general criterion for determining when a suit is in fact against the sovereign
is the effect of the relief sought.’”). 	In determining whether relief sought in a suit nominally
addressed to the officer is relief against the sovereign, the Court in Larson v. Domestic &
Foreign Commerce Corp. stated:
In a suit against the officer to recover damages for the agent’s personal actions
that question is easily answered. The judgment sought will not require action by
the sovereign or disturb the sovereign’s property. 	There is, therefore, no
jurisdictional 	difficulty. 	The 	question 	becomes 	difficult 	and 	the 	area 	of
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controversy is entered when the suit is not one for damages but for specific relief:
i.e., the recovery of specific property or monies, ejectment from land, or
injunction either directing or restraining the defendant officer’s actions. 	In each
such case the question is directly posed as to whether, by obtaining relief against
the officer, relief will not, in effect, be obtained against the sovereign. 	For the
sovereign 	can 	act 	only 	through 	agents 	and, 	when 	the 	agents’ 	actions 	are
restrained, the sovereign itself may, through him, be restrained.
337 U.S. 682, 687-88 (1949).
Some circuits such as the Ninth and Tenth Circuit Court of Appeals have held that tribal
sovereign immunity never applies to a claim for damages against a tribal officer sued in his
individual capacity. 	See Pistor v. Garcia, 791 F.3d 1104, 1112 (9th Cir. 2015); Native Am.
Distrib. v. Seneca-Cayuga Tobacco Co, 546 F.3d 1288, 1296-97 (10th Cir. 2008). 	In Pistor v.
Garcia, the Ninth Circuit Court of Appeals noted that:
As a general matter, individual or “[p]ersonal-capacity suits seek to
impose personal liability upon a government official for [wrongful] actions he
takes under color of . . . law,” and that were taken in the course of his official
duties. 	By contrast, official capacity suits ultimately seek to hold the entity of
which the officer is an agent liable, rather than the official himself: they
“‘generally represent [merely] another way of pleading an action against an entity
of which an officer is an agent.’” 	For this reason, an officer sued in his official
capacity is entitled to “forms of sovereign immunity that the entity, qua entity,
may possess.” 	An officer sued in his individual capacity, in contrast, although
entitled to certain “personal immunity defenses, such as objectively reasonable
reliance on existing law,” cannot claim sovereign immunity from suit, “so long as
the relief is sought not from the [government] treasury but from the officer
personally.”
791 F.3d 1104, 1112 (9th Cir. 2015). The court concluded “[t]hese same principles fully apply
to tribal sovereign immunity.” Id. The court stated that “[a]lthough [t]ribal sovereign immunity
extends to tribal officials when acting in their official capacity and within the scope of their
authority, tribal defendants sued in their individual capacities for money damages are not entitled
to sovereign immunity, even though they are sued for actions taken in the course of their official
duties.” 	Id. (internal quotation and citations omitted). 	Citing language from the Tenth Circuit
Court of Appeals, the court in Pistor stated that:
The general bar against official-capacity claims . . . does not mean that tribal
officials are immunized from individual-capacity suits arising out of actions they
took in their official capacities . . . . Rather, it means that tribal officials are
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immunized 	from 	suits 	brought 	against 	them 	because 	of 	their 	official
capacities—that is, because the powers they possess in those capacities enable
them to grant the plaintiffs relief on behalf of the tribe.
Id. (quoting Native Am. Distrib., 546 F.3d at 1296).
In Pistor, the court stated that in following this rule articulated by the Tenth Circuit, it
held in Maxwell v. County of San Diego that two paramedics employed by a tribe, who allegedly
provided grossly negligent care to a shooting victim, were not entitled to tribal sovereign
immunity from a state tort action brought against them in their individual capacities. Pistor, 791
F.3d at 1113 (citing Maxwell, 708 F.3d 1075, 1081, 1089-90 (9th Cir. 2013)). 	Conducting a
“remedy-focused analysis,” the court in Maxwell explained:
Tribal sovereign immunity derives from the same common law principles that
shape 	state 	and 	federal 	sovereign 	immunity. 	Normally, 	a 	suit 	like 	this
one—brought against individual officers in their individual capacities—does not
implicate sovereign immunity. 	The plaintiff seeks money damages not from the
state treasury but from the officer[s] personally. 	Due to the essential nature and
effect of the relief sought, the sovereign is not the real, substantial party in
interest.
Id. (citing Maxwell, 708 F.3d at 1087-88). The court in Pistor noted that Maxwell cautioned
that:
In any suit against tribal officers, we must be sensitive to whether “the judgment
sought would expend itself on the public treasury or domain, or interfere with the
public administration, or if in effect the judgment would be to restrain the
[sovereign] from acting, or to compel it to act.”
Id. (citing Maxwell, 708 F.3d at 1088).
The Pistor court stated that the Maxwell court cited Cook v. AVI Casino Enterprises, Inc.,
548 F.3d 718, 725 (9th Cir. 2008), and Hardin v. White Mountain Apache Tribe, 779 F.2d 476
(9th Cir. 1985) as examples of lawsuits where the tribal sovereign was the real party in interest.
Id. In Cook, the plaintiffs’ object was to reach the public treasury through a respondeat superior
ruling. 	Id. (citing Maxwell, 708 F.3d at 1088; Cook, 548 F.3d at 727). 	The tribe in Cook was
thus “the ‘real substantial party in interest,’” and the suit against the tribal officers in their
official capacities was therefore barred by sovereign immunity principles. 	Id. (citing Maxwell,
708 F.3d at 1088; Cook, 548 F.3d at 727). The court stated that likewise, in Hardin, sovereign
immunity barred the plaintiff from litigating a case against high-ranking tribal counsel members
seeking to hold them individually liable for voting to eject the plaintiff from tribal land. 	Id.
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(citing Hardin, 779 F.2d at 478). 	To hold otherwise, the court stated, would interfere with the
tribe’s internal governance. 	Id. 	(“‘Hardin was in reality an official capacity suit,’ barred by
sovereign immunity, because the alternative, to “[h]old[ ] the defendants liable for their
legislative functions[,] would . . . have attacked ‘the very core of tribal sovereignty.’”) (quoting
Maxwell, 708 F.3d at 1089). The court in Pistor stated that:
Mawell’s caution about masked official capacity suits aside, it remains “the
general rule that individual officers are liable when sued in their individual
capacities.” So long as any remedy will operate against the officers individually,
and not against the sovereign, there is “no reason to give tribal officers broader
sovereign immunity protections than state or federal officers.”
Id.
This Court is hesitant to conclude, as does the Ninth and Tenth Circuits, that the general
principles of sovereign immunity always apply to define the boundaries of tribal sovereign
immunity. Without a doubt, a state or federal law enforcement officer sued for damages in his or
her individual capacity for allegedly violating a person’s constitutional rights would generally
not be entitled to claim sovereign immunity, but would only be entitled only to personal
immunity 	defenses. 	See 	Hafter 	v. 	Melo, 	502 	U.S. 	21, 	30-31 	(1991) 	(“[T]he 	Eleventh
Amendment does not erect a barrier against suits to impose ‘individual and personal liability’ on
state officials under § 1983.”); 	Mehrkens v. Blank, 556 F.3d 865, 869 (8th Cir. 2009) (“In
Bivens, the Supreme Court established a right of individuals to sue individual federal agents for
damages for unconstitutional conduct in [certain circumstances].”). 	However, as the Supreme
Court recently stated in Upper Skagit Indian Tribe v. Lundgren, “immunity doctrines lifted from
other contexts do not always neatly apply to Indian tribes.” 138 S.Ct. 1649, 1654 (2018) (citing
Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998) (“[T]he immunity possessed
by Indian tribes is not coextensive with that of the States.”).
There is nothing in Supreme Court or Eighth Circuit precedent that compels this Court to
conclude that a tribal official is precluded from invoking the defense of tribal sovereign
immunity to a claim for money damages alleged against the officer in his individual capacity if
such claim arises from the officer exercising the tribe’s inherent sovereign powers. 	While a
money judgment would not pull from the tribal treasury, the Court concludes that permitting
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such a claim would have the effect of interfering with a tribe’s inherent powers of self-government.
In Lewis v. Clarke, the Supreme Court examined whether a member of the Mohegan
Tribe of Indians of Connecticut was entitled to sovereign immunity because he was acting within
the scope of his employment as a driver for the Tribe’s casino when the accident occurred. 137
S.Ct. 1285 (2017). 	The plaintiffs had filed suit against the tribal employee in his individual
capacity in Connecticut state court. 	Id. at 1290. On appeal, the Supreme Court stated that the
fact that “an employee was acting within the scope of his employment at the time the tort was
committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal
sovereign immunity.” 	Id. at 1288 (emphasis added). 	The Court applied general common-law
principles of sovereign immunity2 to evaluate the defendant’s sovereign immunity defense. 	Id.
at 1291. In doing so, the Court stated that it must look beyond the caption to determine whether
the “remedy sought is truly against the sovereign.” Id. at 1290.
2 	The Court in Lewis stated that:
The identity of the real party in interest dictates what immunities may be available.
Defendants in an official‐capacity action may assert sovereign immunity. An officer in an individual‐
capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for
example, absolute prosecutorial immunity in certain circumstances. But sovereign immunity “does
not erect a barrier against suits to impose individual and personal liability.”
There is no reason to depart from these general rules in the context of tribal sovereign
immunity.
Lewis, 137 S.Ct. at 1291.
Upon reading this language, one might be led to believe that the Supreme Court intends tribal sovereign
immunity to be coextensive with the principals of state and federal sovereign immunity. However, as discussed above,
the Supreme Court recently stated in Upper Skagit Indian Tribe v. Lundgren, “immunity doctrines lifted from other
contexts do not always neatly apply to Indian tribes.” 138 S.Ct. at 1654 (citing Kiowa Tribe of Okla., 523 U.S. at 1654
(“[T]he immunity possessed by Indian tribes is not coextensive with that of the States.”). Additionally, in Lewis, the
Court stated not that tribal sovereign immunity never extends to a tribal employee acting within the scope of his or
her employment, but rather that such fact “is not, on its own,” sufficient to bar a suit against the employee on the basis
of tribal sovereign immunity. See, Lewis, 137 S.Ct. at 1288. That the tribal employee in Lewis was engaged in
commercial activity of the Tribe off the reservation was an important fact that the Court noted when concluding that
tribal sovereign immunity did not extend to the employee’s actions. See id. at 1292. In fact, as noted in their separate
concurrences, Justice Thomas and Justice Ginsburg expressed their view that tribal immunity should not extend at all
to suits arising out of a tribe’s commercial activities conducted beyond tribal territory. Id. at 1294.
As noted by the Supreme Court in Upper Skagit Indian Tribe, “[d]etermining the limits on the sovereign
immunity held by Indian tribes is a grave question; the answer will affect all tribes, not just the one before us.” 138
S.Ct. at 1654. Without further guidance from the Supreme Court or the Eighth Circuit Court of Appeals, the Court’s
analysis of existing legal authority leads it to conclude that individual capacity claims arising from a tribal officer
exercising a tribe’s inherent sovereign powers are barred under the doctrine of tribal sovereign immunity. However,
individual capacity claims where the tribal officer is going about a tribe’s commercial ventures is subject to further
analysis depending on the facts of the case.
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The Lewis Court concluded that tribal sovereign immunity did not extend to the tribal
employee’s actions. Id. at 1291. It is important to note that the tribal employee in Lewis was not
exercising the Tribe’s inherent powers of self-government. 	In concluding that tribal sovereign
immunity did not extend to the employer’s actions, the court found significant the fact that the
lawsuit was brought against an employee of the tribe’s casino while he was operating a vehicle
on state, not tribal lands, and that any damages judgment would not operate against the Tribe.
Id. The Court stated that this is “simply a suit against Clarke to recover for his personal actions,
which ‘will not require action by the sovereign or disturb the sovereign’s property.’” 	Id.
(quoting Larson, 337 U.S. at 687). 	In their separate concurrences, Justice Thomas and Justice
Ginsburg expressed the view that tribal immunity should not extend to suits arising out of a
tribe’s commercial activities conducted beyond tribal territory. Id. at 1294.
By contrast, in Lantry v. McMinn, the court concluded that tribal sovereign immunity
extended to a tribal police officer who was executing a tribal search warrant, signed by a tribal
judge, on a house owned by a tribal member and located on the Reservation. Civ. No. 08-638,
2010 WL 11629661 at *9 (D. Nev. Mar. 4, 2010). 	The court acknowledged that Indian tribes
have inherent power to enforce their criminal laws against tribe members. Id. at *8. Because the
officer was acting within the scope of the Tribe’s inherent authority, the court concluded that he
was entitled to the benefit of tribal immunity for the claims asserted against him. 	See id.
Similarly, in Dry v. United States, the Tenth Circuit Court of Appeals held that tribal sovereign
immunity extended to actions by tribal law enforcement officers who were “act[ing] as agents of
the Tribe pursuant to their inherent sovereign power to exercise criminal jurisdiction over
intratribal offenses.” 235 F.3d 1249, 1255 (10th Cir. 2000).
In Stanko v. Oglala Sioux Tribe, a pro se plaintiff brought a § 1983 action against various
tribal officers seeking damages for violations of his constitutional and civil rights. Civ. No 17-
5008, 2017 WL 4217113 (D.S.D. Sept. 20, 2017) (J. Viken). 	The plaintiff in Stanko was
traveling on federally-maintained highway on reservation land when he was allegedly arrested,
detained, assaulted, battered, and robbed by tribal officers. 	Id. at *2. 	The plaintiff filed a
lawsuit, naming as defendants the Tribe and various tribal officers in their individual and official
capacities. 	With regard to the individual capacity claims against the tribal defendants, the
district court held that the plaintiff failed to state a § 1983 claim because “[a]s separate
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sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained
by 	those 	constitutional 	provisions 	framed 	specifically 	as 	limitations 	on 	federal 	or 	state
authority.” Id. at *5 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); Talton v.
Mayes, 163 U.S. 376, 384 (1896)).
On appeal, the Eighth Circuit Court of Appeals in Stanko disagreed with the district
court’s reasoning, stating that the cases cited by the district court did “not establish that tribal
officers cannot be sued individually for violating the constitutional rights of non-Indians while
on tribal lands. 	Non-Indian United States citizens do not shed their constitutional rights at an
Indian reservation’s border.” Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 698 (8th Cir. 2019).
However, the court affirmed the district court’s decision to dismiss the plaintiff’s § 1983 claim
for failure to state a claim because the plaintiff failed to allege that the individual defendants
were acting under color of state law, as § 1983 requires. Id.
While the Eighth Circuit in Stanko held that tribal officers can be sued individually for
violating the constitutional rights of non-Indians while on tribal lands, the court did not
specifically address the issue of tribal sovereign immunity, nor did it suggest that tribal
sovereign immunity may never bar individual capacity suits against tribal officers, particularly
when they are exercising the inherent sovereign powers of the Tribe.
Neuenfeldt cites Whiting v. Martinez, Civ. No. 15-3017, 2016 WL 297434 (D.S.D. Jan.
22, 2016) (J. Lange) in support of his argument that Plaintiff’s claim for damages against him is
precluded by tribal sovereign immunity since he was acting in his capacity as an employee of the
the Tribe’s police department. 	In Whiting, a pro se plaintiff sued for money damages a police
officer employed by the Tribe’s police department, a magistrate judge employed with the Tribe,
and a tribal prosecutor in their individual and official capacities under 28 U.S.C. § 1331 and
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). 2016 WL 297434, at *1.
The plaintiff alleged a claim against the tribal police officer for false imprisonment, alleging that
he was wrongly imprisoned when the tribal officer falsely stated that he was resisting arrest. Id.
The plaintiff also alleged that as a result of his subsequent incarceration, he was deprived of his
liberty and due process in violation of the Fifth Amendment. 	Id. 	The plaintiff alleged that the
Tribe’s magistrate judge and tribal prosecutor were acting under color of law when each stated
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that the plaintiff committed offenses of resisting arrest and disorderly conduct after reviewing
the evidence and tribal complaint against him. Id.
The court in Whiting held that the plaintiff’s claims against the defendants in their
individual capacities could not stand because the facts suggested that defendants were employed
by the Tribe and were acting within their official authority at all times relevant to the lawsuit.
Id. at *3. 	It is important to note that two of the three defendants, the magistrate judge and the
tribal prosecutor, were alleged to have been acting within their prosecutorial and judicial
functions—and were thus engaged in the tribe’s inherent sovereign functions. 	It also appears
that the tribal police officer was exercising the Tribe’s inherent powers to enforce its criminal
laws since the plaintiff stated that he was sentenced for his offenses in tribal court. Id.; see also
Civ. No. 15-3017, Docket 1.
In sum, in determining whether tribal sovereign immunity bars a claim for damages
against Neuenfeldt depends on whether or not Neuenfeldt was exercising the inherent sovereign
powers of the Tribe. 	If so, the Court concludes that permitting such a claim to proceed would
have the effect of interfering with the Tribe’s powers of self-government.
In the present case, it is alleged that Bourassa was driving a vehicle with Plaintiff and
Ten Eyck as passengers when they were stopped by Neuenfeldt, acting in his capacity as the
Tribe’s Chief of Police, Moody County Deputy Sheriffs, the South Dakota Highway Patrol, and
the City of Flandreau Police Department. Doc. 21, ¶¶ 6, 13. In the supplemental responses filed
with the Court, the parties concurred that the stop was not on tribal land, but occurred on a road
abutting a non-tribally-owned, rural property near Dells Rapids, South Dakota. 	Docs. 27-29.
Neuenfeldt arrived at the property to assist Moody County Sheriff’s Deputies responding to a
security check at the property. Docs. 27-29. It is alleged that Neuenfeldt and the other officers
knew Bourassa’s identity at the time of the stop, that Neuenfeldt threatened to take Bourassa to
jail, and that Bourassa was actively being monitored by the South Dakota Parole Board through a
GPS ankle bracelet. 	Doc. 21, ¶¶ 14, 18-19. 	Plaintiff alleges that Neuenfeldt, an uncertified
deputy from the Moody County Sheriff’s Office, and an officer from the South Dakota Highway
Patrol, all initiated pursuit once Bourassa fled in his vehicle. Doc. 21, ¶¶ 14-16.
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It is undisputed that Indian tribes have the inherent power to enforce their criminal laws
against Indians within the boundaries of the reservation3 . 	United States v. Lara, 541 U.S. 193,
199 (2004); United States v. Wheeler, 435 U.S. 313, 323-26 (1978). 	Tribes generally do not
have criminal jurisdiction over non-Indians, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
212 (1978), although tribal police have the authority to detain non-Indians who commit crimes
within Indian country until they can be turned over to the appropriate state or federal authorities,
Duro v. Reina, 495 U.S. 676, 696-97 (1990) (“The tribes [ ] possess [ ] traditional and
undisputed power to exclude persons whom they deem to be undesirable from tribal lands.
Tribal law enforcement authorities have the power to detain those who disturb public order on
the reservation, and if necessary, to eject them. Where jurisdiction to try and punish an offender
rests outside the tribe, tribal officers may exercise their power to detain the offender and
transport him to the proper authorities.”); United States v. Terry, 400 F.3d 575, 579 (8th Cir.
2005) (explaining that tribal officers have the authority “to detain non-Indians whose conduct
disturbs the public order on their reservation”).
In the present case, Neuenfeldt encountered Plaintiff when assisting Moody County
Sheriff’s Deputies in conducting a security check for possible trespassing at a non-tribally-
owned, rural property. Although Neuenfeldt was acting in his capacity as a Tribal police officer
at all times pertinent to this case, the Court concludes that Neuenfeldt was not exercising the
inherent sovereign powers of the Tribe. The parties agree that the stop was not on tribal land and
that neither Plaintiff, Bourassa, nor Ten Ecyk were Indians. Docs. 27-29. Plaintiff furthermore
alleges that the “pursuit was never on tribal land.” Doc. 21, ¶ 33.s. 	Neuenfeldt’s motion to
dismiss on the basis of tribal sovereign immunity is thus denied.
II. 	Federal Tort Claims Act
Neuenfeldt alleges that that to the extent the Court considers him to be a federal
employee for purposes of the negligence claim against him, the United States is the proper party
under the Federal Tort Claims Act (“FTCA”). 	Plaintiff’s negligence claim is alleged against
“Defendants” collectively. Doc. 21, ¶¶ 30-39.
3 The Sixth Circuit has ruled that tribes have inherent authority to prosecute their members for off‐reservation
conduct where necessary to protect tribal self‐government or control internal relations. See Kelsey v. Pope, 809
F3d 849 (6th Cir. 2016).
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“The Federal Tort Claims Act is a limited waiver of sovereign immunity, making the
Federal Government liable to the same extent as a private party for certain torts of federal
employees acting within the scope of their employment.” Audio Odyssey, Ltd. v. United States,
255 F.3d 512, 516 (8th Cir. 2001) (quoting United States v. Orleans, 425 U.S. 807, 813 (1976)).
“Under the FTCA, the United States is liable, as a private person, 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 under the scope of his office or employment.’” 	Western Nat.
Mut. Ins. Co. v. United States, 964 F.Supp. 295, 297 (D. Minn. 1997) (quoting 28 U.S.C. §
1346(b)). 	The remedy provided by the FTCA for injuries resulting from the activities of
[Federal] Government employees “is exclusive of any other civil action or proceeding for money
damages.” United States v. Smith, 499 U.S. 160, 162 (1991) (quoting 28 U.S.C. § 2679(b)(1)).
The Federal Tort Claims Act “accords federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in the course of their official duties.”
Osborn v. Haley, 549 U.S. 225, 229 (2007) (citing 28 U.S.C. § 2679(b)(1)); see also United
States v. Smith, 499 U.S. 160, 161-62 (1991). 	Under the FTCA, “an action against the United
States is the only remedy for injuries caused by federal employees acting within the scope of
their employment.” 	Anthony v. Runyon, 76 F.3d 210, 212-13 (8th Cir. 1996). 	The purpose of
the FTCA is “to shield covered employees not only from liability but from suit” and to place the
“cost and effort of defending the lawsuit . . . on the Government’s shoulders.” Osborn, 549 U.S.
at 248, 252.
When a federal employee is sued, the Attorney General has the authority to certify that
the employee “was acting within the scope of his office or employment at the time of the
incident out of which the claim arose.” 	28 U.S.C. § 2679(d)(1). 	Under the FTCA’s
implementing regulations, the United States Attorney for the district court in which the civil
action at issue is brought “is authorized to make the statutory certification that the Federal
employee was acting within the scope of his office or employment with the Federal Government
at the time of the incident out of which the suit arose.” 28 C.F.R. § 15.4(a).
The statutory certification, “although subject to judicial review, is prima facie evidence
that the employee’s challenged conduct was within the scope of employ.” Brown v. Armstrong,
949 F.2d 1007, 1012 (8th Cir. 1991); see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
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434 (1995). 	A plaintiff opposing the certification bears the burden of “com[ing] forward with
specific facts rebutting the government’s scope-of-employment certification.” Brown, 949 F.2d
at 1012; see also Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (“The Attorney General’s
decision 	regarding 	scope 	of 	employment 	certification 	is 	conclusive 	unless 	challenged.
Accordingly, the party seeking review bears the burden of presenting evidence and disproving
the Attorney General’s decision to grant or deny scope of employment certification by a
preponderance of the evidence.”).
On March 18, 2019, the United States Attorney filed a Certification of Scope of
Employment pursuant to 28 C.F.R. § 15.4, Doc. 12, certifying that Neuenfeldt was an employee
of the federal government and was acting within the scope of his office or employment at the
time of the alleged conduct with respect to Counts I and III of the Amended Complaint alleging
negligence and common law assault and battery, Doc. 21. 4
Plaintiff does not rebut the Government’s scope-of-employment certification in this case.
In fact, in his brief in opposition to Neuenfeldt’s Motion to Dismiss, Plaintiff voices his
agreement with Neuenfeldt’s argument that the United States, rather than he, is the proper
defendant for Plaintiff’s FTCA claim. Doc. 23 at 6 (“Despite the United States being the proper
defendant for Plaintiff’s FTCA claim, which Plaintiff is in agreement with, Neuenfeldt fails to
address the actual cause of action alleged against him and how it is improper—i.e., Plaintiff’s
cause of action under Bivens.”). Because the United States is already a named defendant in this
case, the proper relief is to dismiss the FTCA claim against Neuenfeldt, as he is no longer a
proper defendant to that claim.
While Plaintiff’s negligence claim and claim for assault and battery will be dismissed
against Neuenfeldt, they will be dismissed without prejudice. 	The regulation which addresses
withdrawal of the Certification states that “[a] certification under this section may be withdrawn
if a further evaluation of the relevant facts or the consideration of new or additional evidence
calls for such action.” 28 C.F.R. § 15.4(c). The United States has not attempted to withdraw its
Certification although it has expressed in its Answer to Amended Complaint that it:
4 25 U.S.C. § 2804(f)(1)(A) provides that while acting pursuant to a section 638 contract, “a person who is not
otherwise a Federal employee shall be considered to be . . . an employee of the Department of the Interior” for
purposes of the FTCA. 25 U.S.C. § 2804(f); 5 U.S.C. § 3374(c)(2).
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[D]enies paragraph 4 [of the Amended Complaint] to the extent it asserts that
Flandreau Santee Sioux Tribal employees, whose actions are alleged to have
contributed to and/or caused the accident at issue, are deemed federal employees
pursuant to the FTCA. 	The United States avers that the United States Attorney
for the District of South Dakota has provided a certification of scope of
employment related to Officer Neuenfeldt for two counts (Counts [I] and [III]) in
the original Complaint based on information then available to the United States,
and the United States would refer to that filing.
Doc. 22, ¶ 4. Dismissal of the negligence and assault and battery claims against Neuenfeldt will
therefore be without prejudice in the event that the United States subsequently withdraws the
certification. See Burell v. Rossamo, Civ. No. 13-877, 2014 WL 7178012, *3-4 (M.D. Fla. Dec.
16, 2014) (dismissing claims against federal employee without prejudice in FTCA case
considering possible need for later reinstatement of claims against individual if the United States
withdraws certification); Becker v. Fannin Cty., Ga., Civ. No. 09-0047, 2012 WL 3113908, at
*7-9 (N.D. Ga. Jul. 3, 2012) (allowing resubstitution of individual defendant after United States
withdraw certification in FTCA case).
III. 	Bivens Claim
In his Bivens claim, Plaintiff alleges that Neuenfeldt, acting under color of federal law,
violated his rights under the Fourth Amendment to be free from unreasonable searches and
seizures and deprived him of his right to life and liberty under the Fifth Amendment without due
process of law. Doc. 21, ¶¶ 40-52.
In 	most 	cases, 	an 	FTCA 	action 	is 	the 	exclusive 	civil 	remedy 	available 	against
government employees acting within the scope of their employment. 	28 U.S.C. § 2679(b)(1).
The Act includes an exception, however, for claims “brought for a violation of the Constitution
of the United States.” 28 U.S.C. § 2679(b)(2)(A). The exception permits plaintiffs to bring both
an FTCA claim as well as a Bivens claim against the individual defendants. See, e.g., Sanchez v.
McLain, 867 F.Supp.2d 813, 820 (S.D. W. Vir. 2011).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,
the Supreme Court recognized “an implied private right of action for damages against federal
officers alleged to have violated a citizen’s constitutional rights.” 	Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009). A Bivens claim requires a violation of constitutional rights “by a federal agent
acting under color of his authority.” Bivens, 403 U.S. at 389.
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Plaintiff alleges that Neuenfeldt is a federal actor for Bivens purposes because he is
considered a federal employee by virtue of a section 638 contract entered into by and between
the Tribe and the Federal Government pursuant to the Indian Self-Determination and Education
Assistance Act (referred to as “ISDEAA” or “Public Law 98-638”).
In the present case, Neuenfeldt, acting in his capacity as Chief of Tribal Police,
encountered Plaintiff when he responded to a call from Moody County Sheriff’s department to
assist them when they discovered trespassers while conducting a security check on a non-
tribally-owned, rural property. Pursuant to the Indian Law Enforcement Reform Act (“ILERA”),
the “Secretary may authorize a law enforcement officer of [a Federal, tribal, State, or other
Government agency]” to perform any activity the Secretary may authorize under section 2803”
of ILERA. 	25 U.S.C. § 2804(a)(2). 	The Secretary has the authority to enforce state law
pursuant to a request for a state or local law enforcement agency, 25 U.S.C. § 2803(8), and that
authority can be delegated to an Indian tribe pursuant to a 638 Contract. Strei v. Blaine, Civ. No.
12-1095, 2013 WL 6243881 at *6 (D. Minn. Dec. 3, 2013) (citing United States v. Schrader, 10
F.3d 1345, 1350 (8th Cir. 1993)); United States v. Zieglar, 136 F.Supp.2d 981, 987 (D.S.D.
2001) (J. Kornmann) (“To trigger the authority granted by § 2803(8), there must be some kind of
“request”, made by a state/local agency, for assistance from a BIA officer or a criminal or
regulatory matter which the agency has jurisdiction over.”). 	This delegation includes authority
to enter into cooperative law agreements such as the Law Enforcement Assist Agreement
between Flandreau Santee Sioux Tribal Police and Moody County, South Dakota, that the
Government referenced in its Certification of Scope of Employment. 	See Strei, 2013 WL
6243881, at *7 (citing 25 U.S.C. § 2803(8); Schrader, 10 F.3d at 1350); see also Allender v.
Scott, 379 F.Supp.2d 1206, 1215-16 (D.N.M. 2005) (holding that section 2803(8) of ILERA
authorizes the Secretary “to assist with the enforcement of State law through cooperative
agreement and cross-commissioning[.]”).
The fact that Neuenfeldt was acting within the scope of a section 638 contract the Tribe
had with the Federal Government does not necessarily render him a federal actor for Bivens
purposes. Neuenfeldt argues that allowing a Bivens action to proceed against him, a tribal law
enforcement officer, would extend Bivens to a new category of defendant which the Supreme
Court has cautioned against doing. Doc. 24 at 5-6. 	The Supreme Court has expressly granted
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Bivens remedies in only three cases: Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446
U.S. 14 (1980). In Bivens, the Court provided a damages remedy under the Fourth Amendment
to persons who had been subjected by federal officers to unreasonable searches and seizures.
403 U.S. at 397. 	The Court then held under Davis v. Passman that the Fifth Amendment Due
Process Clause gave a plaintiff a damages remedy for gender discrimination. 	442 U.S. at 248.
Most recently, the Court in Carlson v. Green held that the Eighth Amendment’s Cruel and
Unusual Punishments Clause gave a decedent’s estate a damages remedy when federal jailers
failed to treat decedent’s asthma, resulting in his death. 446 U.S. at 25.
Since its decision in Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court “has had
to decide in several different instances whether to imply a Bivens action . . . [a]nd in each
instance it has decided against the existence of such an action.” 	Minneci v. Pollard, 565 U.S.
118, 124 (2012); see also Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) (“Since
Carlson we have consistently refused to extend Bivens liability to any new context or new
category of defendants.”). The Court stated that:
In 30 years of Bivens jurisprudence we have extended its holding only twice, to
provide an otherwise nonexistent cause of action against individual officers
alleged to have acted unconstitutionally, or to provide a cause of action for a
plaintiff who lacked any alternative remedy for harms caused by an individual
officer’s unconstitutional conduct.
Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001).
In FDIC v. Meyer, one of the Bivens cases that arose subsequent to Carlson, the plaintiff
brought a Bivens action against the Federal Savings and Loan Insurance Corporation claiming
that discharge from his job as a senior officer of that institution deprived him of his Fifth
Amendment Due Process Rights. 510 U.S. 471 (1994). The Court declined to extend Bivens to
permit a suit against a federal agency even though Congress had waived the agency’s sovereign
immunity. 	Id. at 484-86. 	In a Correctional Servs. Corp. v. Malesko, the Court noted that in
Meyer, it emphasized that “the purpose of Bivens is to deter the officer,” not the agency. 	534
U.S. 61, 69 (2001) (citing Meyer, 510 U.S. at 485). 	The Court reiterated its reasoning in the
Meyer opinion that “if given the choice, plaintiffs would sue a federal agency instead of an
individual who could assert qualified immunity as an affirmative defense. 	To the extent
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aggrieved parties had less incentive to bring a damages claim against individuals, “the deterrent
effects of the Bivens remedy would be lost.” Id. (citing Meyer, 510 U.S. at 485).
In Minneci v. Pollard, a prisoner at a federal facility operated by a private company filed
a pro se complaint alleging a Bivens claim against several employees of the facility alleging that
they had deprived him of adequate medical care in violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment. 	565 U.S. 118 (2012). 	The plaintiff argued
that his Bivens action against the prison employees was permissible under Carlson which
recognized an Eighth Amendment-based Bivens action by a federal prisoner against prison
personnel. 	Id. at 126. 	The Court stated that Carlson was distinguishable because the federal
prisoner in Carlson sought damages from personnel employed by the government, not personnel
employed by a private firm. 	Id. 	The Court stated that “the potential existence of an adequate
‘alternative, existing process’ differs dramatically in the two sets of cases.” 	Id. 	Whereas
prisoners ordinarily cannot bring state-law tort actions against individual employees of the
Federal Government because the Federal Government is substituted as a defendant under the
FTCA, prisoners ordinarily can bring state-law tort actions against employees of a private firm.
Id. The Court held that it could not imply a Bivens remedy in cases such as plaintiff’s:
[W]here, as here, a federal prisoner seeks damages from privately employed
personnel working at a privately operated federal prison, where the conduct
allegedly amounts to a violation of the Eighth Amendment, and where that
conduct is of a kind that typically falls within the scope of traditional state tort
law (such as the conduct involving improper medical care at issue here). . . .
Id. at 131.
In the present case, Court concludes that Plaintiff may proceed to litigate his Bivens
action against Neuenfeldt. 	The Supreme Court has repeatedly acknowledged that “the purpose
of Bivens is to deter individual federal officers from committing constitutional violations.”
Malesko, 534 U.S. at 70. 	Unlike in Minneci, under the facts of this case, there is no adequate
alternative to deter an individual in Neuenfeldt’s position from committing constitutional
violations. As this Court has already ruled, state law tort claims alleged against Neuenfeldt must
proceed against the United States under the Federal Tort Claims Act. 	As the Supreme Court
stated in Carlson, “[b]ecause the Bivens remedy is recoverable against individuals, it is a more
effective deterrent than the FTCA remedy against the United States.” 446 U.S at 21.
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The Court finds this case distinguishable from some of the other cases that have declined
to extend Bivens liability to tribal employees acting pursuant to a section 638 contract. In Goss
v. United States, the plaintiff brought a Bivens claim against a podiatrist employed by a tribal
health care corporation that had a 638 contract with the federal government and was providing
health services on the Navajo reservation. 	353 F.Supp.3d 878, 882 (2018). 	The district court
stated that the fact that the tribal organization works under a contract with the federal
government does not transform the defendant employee into a federal employee for all purposes.
Id. at 890. 	In dismissing the plaintiff’s Bivens claim, the court stated that while the defendant
was a federal employee for purposes of the FTCA and was thus protected from liability from
claims related to the provision of medical services, the defendant was otherwise an employee of
a tribal organization and not subject to a Bivens claim. Id. The Bivens claim was for negligent
supervision of another employee of the tribal organization.
In Boney v. Valline, 597 F.Supp.2d 1167 (D. Nev. 2009), an arrestee brought a Bivens
action against a tribal police officer, seeking damages for the officer’s alleged violation of her
Constitutional rights in connection with her arrest and son’s death. 	The defendant had been
dispatched to investigate a call by the plaintiff that her ex-husband was driving intoxicated on
the Reservation. 	Id. at 1170. 	Upon arriving at the ex-husband’s residence, the defendant
encountered the plaintiff’s ex-husband and her son. 	Id. 	The plaintiff’s son became angry,
yelling at the defendant, and the incident culminated with the defendant employing deadly force
against the son. Id.
The plaintiff argued that the defendant in Boney was a federal actor or acting under color
of federal law when he shot her son because the Tribe was in a section 638 contract with the BIA
to provide law enforcement on the Reservation. Id. at 1172. One of the factors the court looked
at in determining whether the federal government could be held liable for the tribal officer’s
conduct was whether he was performing a function that was traditionally within the exclusive
prerogative of the federal government. 	Id. at 1175. 	Examining the facts of the case, the court
found that the defendant was not performing a function exclusive to the federal government but
rather was “acting under the Tribe’s inherent tribal sovereignty” in enforcing its criminal laws
against tribal members. Id. at 1178.
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Contrary to the Goss and Boney cases, although Neuenfeldt was acting in his capacity as
the Tribe’s Chief of Police, his authority to assist with state law matters off tribal land
specifically derived from the section 638 contract entered into by and between the Tribe and the
Federal Government. 	Tribal police do not otherwise have authority to assist with state law
matters on non-tribal land. Accordingly, Neuenfeldt was acting under color of federal, not tribal
law. 	See Polk Cty. v. Dodson, 454 U.S. 312, 317-18 (1981) (stating that a person acts under
color of federal law by “exercising power possessed by virtue of [federal law] and made possible
only because the wrongdoer is clothed with the authority of [federal] law.”). 	Because
Neuenfeldt was acting under color of federal law, and because there are no alternative remedies
under state law to deter an individual in Neuenfeldt’s position from violating constitutional
rights of others, Plaintiff may proceed in litigate his Bivens claim against Neuenfeldt.
IV. 	Count IV – Second Claim for Relief for Supervisorial Responsibility for Violations of
the Civil Rights Under Color of Law (Bivens Action)
In case there is any confusion, the Court does not find that Neuenfeldt is named as a
defendant 	in 	Count 	IV 	of 	Plaintiff’s 	Amended 	Complaint 	alleging 	a 	Bivens 	action 	for
“supervisorial responsibility for violations of the civil right under color of law.” Doc. 21, ¶¶ 56-
63. 	In this claim, Plaintiff alleges that Defendants implemented and maintained customs,
policies, and/or practices to encourage the use of excessive force by Defendant Neuenfeldt” and
that “Defendant participated in, courage, foster, condoned, and ratified the conduct of Defendant
Neuenfeldt when [he] used excessive force in the pursuit and injuring Plaintiff Micah Roemen.”
Doc. 21, ¶¶ 57-58. 	The Court concludes that this claim is alleged against named defendants,
“Unknown Supervisory Personnel of the United States,” in their individual capacities under
Bivens.
Accordingly, it is hereby ORDERED that Neuenfeldt’s Motion to Dismiss, Doc. 8, is
GRANTED IN PART AND DENIED IN PART as follows:
(1) Counts I and III of the Amended Complaint alleging negligence and common law
assault and battery shall be DISMISSED WITHOUT PREJUDICE against defendant
Neuenfeldt; Counts I and III shall proceed against defendant United States of
America; and
(2) The Motion to Dismiss Count II of the Amended Complaint alleging a Bivens claim
against defendant Neuenfeldt is DENIED; and
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(3) To the extent Neuenfeldt’s motion seeks to dismiss Count IV of the Amended
Complaint alleging a claim for relief for “supervisorial responsibility for violations of
the civil right color of law (Bivens action),” his motion is DENIED for lack of
standing; the allegations in Count IV allege that Plaintiff suffered an injuries as a
result 	of 	customs, 	policies 	and 	practices 	of 	defendants 	Unknown 	Supervisory
Personnel of the United States, and not as a result of customs, policies and practices
of Neuenfeldt’s.
Dated this 28th day of May, 2020.
BY THE COURT:
________________________________
Lawrence L. Piersol
ATTEST: 	United States District Judge
MATTHEW W. THELEN, CLERK
______________________________
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