United States District Court, D. South Dakota, Western Division
KEVIN R. APPLE, SR., Plaintiff,
RYAN CHARGING CLOUD, Law Enforcement Officer at Oglala Sioux Tribe, Department of Public Safety; MILTON BIANAS, Law Enforcement Officer at Oglala Sioux Tribe, Department of Public Safety; DEREK PUCKETT, Law Enforcement Officer at Oglala Sioux Tribe, Department of Public Safety; KEN FRANKS, Law Enforcement Officer at Oglala Sioux Tribe, Department of Public Safety; UNKNOWN TRIBAL/FEDERAL OFFICER, Law Enforcement Officer at Oglala Sioux Tribe, Department of Public Safety; 4 UNKNOWN NAMES OF FEDERAL/TRIBAL CORRECTIONAL OFFICERS, Correctional Officers at Adult Offenders Facility, Pine Ridge, S.D., Oglala Sioux Tribe, Defendants.
ORDER FOR FURTHER DEVELOPMENT OF THE RECORD
VERONICA L. DUFFY, Magistrate Judge.
This matter is before the court pursuant to plaintiff Kevin R. Apple, Sr.'s complaint under 28 U.S.C. § 1331 and Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971). See Docket No. 1. Mr. Apple subsequently amended his complaint on December 6, 2013. See Docket No. 26. He alleges that various federal/tribal law enforcement and correctional officers violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights as set forth in the United States Constitution while arresting and detaining him. Id . Mr. Apple seeks $7, 001, 616 in money damages. Id . The defendants filed a combination answer and a motion to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (6). The motion was originally filed without the support of a written memorandum of law in support of the motion. See Docket No. 33. Eleven days later, defendants filed a brief in support of the portion of their pleading that constituted a motion. See Docket No. 37.
A. Defendants' Subject Matter Jurisdiction Challenge
It is axiomatic that this court must have subject matter jurisdiction before it may entertain this action. See Lang v. Napolitano , 596 F.3d 426, 429 (8th Cir. 2010) (district court erred because it should have dismissed plaintiff's claim where the court lacked subject matter jurisdiction without reaching the merits of those claims); Carton v. Gen. Motor Acceptance Corp. , 611 F.3d 451, 455 (8th Cir. 2010) (determination of subject matter jurisdiction as to the amount in controversy under 28 U.S.C. § 1332 must be addressed at the outset).
Federal courts are courts of limited jurisdiction-they may adjudicate only those cases within their articulated jurisdiction under Article III of the Constitution or a valid statute enacted pursuant to Article III. Marbury v. Madison , 1 Cranch 137, 173-80 (1803). A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) challenges the court's authority and competence to hear the case pending before it. 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FED. PRACTICE & PROCEDURE § 1350, at 64 (3d ed. 2004) (hereinafter "WRIGHT & MILLER"); Yankton Sioux Tribe v. United States Army Corps of Engineers , 194 F.Supp.2d 977, 983 (D.S.D. 2002). The issue of a federal court's subject matter jurisdiction, or lack thereof, is central to the tenants of judicial federalism, the distribution of judicial power between state and federal courts. 5B WRIGHT & MILLER § 1350, at 120-33. "[B]ecause jurisdiction is a threshold question, judicial economy demands that the issue be decided at the outset rather than deferring it until trial, as would occur with [the] denial of a summary judgment motion." Osborn v. United States , 918 F.2d 724, 729 (8th Cir. 1990).
"A party challenging subject matter jurisdiction under Rule 12(b)(1) must attack either the facial or factual basis for jurisdiction." Middlebrooks v. United States, Civ. No. 13-4033-KES, 2014 WL 1123488, at *1 (D.S.D. Mar. 20, 2014) (citing Osborn , 918 F.2d at 729 n.6). "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Precision Press, Inc. v. MLP U.S.A., Inc. , 620 F.Supp.2d 981, 986 (N.D. Iowa 2009) (quoting Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir. 1993) (internal quotation marks omitted)). In a facial challenge, "the nonmoving party receives the same protections as it would if defending a motion to dismiss under Rule 12(b)(6)." Middlebrooks, 2014 WL 1123488, at *1 (citing Osborn , 918 F.2d at 729).
A "factual attack challenges the factual basis for subject matter jurisdiction, and the court considers matters outside the pleadings without giving the nonmoving party the benefit of the Rule 12(b)(6) safeguards." Id . (citing Osborn , 918 F.2d at 729). In a defendant's factual attack on the jurisdictional allegations contained in the plaintiff's complaint, the court "may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute." Precision Press , 620 F.Supp.2d at 986 (quoting Titus , 4 F.3d at 593 (citing Land v. Dollar , 330 U.S. 731, 735 n.4 (1947))) (internal quotation marks omitted). "The proper course is for the defendant to request an evidentiary hearing on the issue." Id . (quoting Titus , 4 F.3d at 593 (citing Osborn , 918 F.2d at 730)) (internal quotation marks omitted). The party seeking to establish the court's subject matter jurisdiction bears the burden of proving that jurisdiction in fact exists. Middlebrooks, 2014 WL 1123488, at *1 (citing Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977)). This court agrees with the analysis of the Eighth Circuit and the Mortensen court that following a factual jurisdictional challenge under Rule 12(b)(1):
[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. 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 , 918 F.2d at 730 (quoting Mortensen , 549 F.2d at 891).
In this case, the defendants did not indicate whether they were facially or factually challenging the subject matter jurisdiction of Mr. Apple's complaint. Similarly, although the defendants filed one supporting affidavit and one police report with the court, neither they nor the plaintiff requested an evidentiary hearing. If the attack is intended as a facial challenge, the court finds that Mr. Apple's complaint, on its face, alleges sufficient facts to confer subject matter jurisdiction on this court.
Mr. Apple has filed suit under 28 U.S.C. § 1331 and Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971) alleging that tribal/federal officers took actions against him which violated his civil liberties as guaranteed by the Constitution of the United States. These allegations, if true, establish federal question jurisdiction over Mr. Apple's complaint.
Therefore, the court interprets the defendants' Rule 12(b)(1) motion to dismiss as a factual challenge to the court's subject matter jurisdiction. Accordingly, the court must determine, at the outset, whether it has competent subject matter jurisdiction to hear Mr. Apple's complaint. The court's examination under Rule 12(b)(1) is not constrained to only those allegations contained in the pleadings.
The court is mindful that the pleadings of pro se litigants, "however inartfully pleaded" are to be held "to less stringent standards than formal pleadings drafted by lawyers." Atkinson v. Bohn , 91 F.3d 1127, 1129 (8th Cir. 1996) (citing Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam)). Nevertheless, the court must not assume the role of advocate for the pro se litigant nor "rewrite a complaint to include claims that were never presented." Barnett v. Hargett ...