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Many v. United States

United States District Court, D. South Dakota, Central Division

July 7, 2017




         Plaintiff Rhonda Uses Many is the Administratrix of the Estate of Brittany Buffalo and Waco Buffalo. Uses Many has sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that the negligence of a Cheyenne River Sioux Tribe (CRST) Police Department employee during a high-speed vehicle pursuit caused the deaths of Brittany and Waco. Doc. 1. The United States filed an answer denying liability, Doc. 7, and then filed a motion to dismiss for lack of jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively, a motion for summary judgment under Rule 56(c), Doc. 16. Uses Many opposed this motion, and both parties submitted additional materials outside the pleadings. Docs. 18-19, 22-25. For the reasons explained below, this Court grants the United States' motion to dismiss.

         I. Facts

         Around 1:00 a.m. on the morning of July 11, 2013, Brittany was driving a vehicle on South Dakota Highway 212 on the Cheyenne River Sioux Indian Reservation. Doc. 1 at ¶6; Doc. 18 at ¶2; Doc. 24 at ¶2. Also in the vehicle were Shon'do Talks and Waco, Brittany's brother. Doc. 1 at ¶ 6. Meanwhile, CRST police officer Terry Long Mandan was in his patrol vehicle at the junction of Highways 63 and 212, facing west. Doc. 18 at ¶2; Doc. 24 at ¶2. Brittany made a wide turn onto Highway 63, almost traveling into the west ditch, before swerving towards the centerline and then onto the west white fog line. Doc. 1 at ¶ 7; Doc. 18 at ¶2; Doc. 24 at ¶2. Officer Long Mandan observed the wide turn and swerving, and then followed the vehicle for at, least a quarter mile, before activing his overhead flashers to stop the vehicle for careless driving. Doc. 18 at ¶ 3; Doc. 24 at ¶ 3. Officer Long Mandan did not know at the time who was in the vehicle, or have any knowledge of crimes committed other than careless driving.[1] Doc. 23 at ¶ 3; Doc. 19-1 at 3.

         Brittany did not stop the vehicle, and instead sped up, prompting Officer Long Mandan to turn on his lights and siren and to begin pursuing the vehicle. Doc. 1 at ¶ 7; Doc. 18 at ¶¶ 4-5; Doc. 24 at ¶¶ 4-5. Talks later told Officer Long Mandan that he and Waco had told Brittany to stop for the police vehicle, but that she kept going. Doc. 18 at.¶ 20; Doc. 24 at ¶ 20. Officer Long Mandan made contact with dispatch during the pursuit, but there was no supervisor on duty. Doc. 18 at ¶¶ 5, 7; Doc. 24 at ¶¶ 5, 7.

         The pursuit lasted for eleven miles, with the vehicles reaching speeds well above 100 miles per hour. Doc. 1 at ¶ 8; Doc. 18 at ¶¶ 6, 11; Doc. 24 at ¶¶ 6, 11. During the pursuit, Brittany's vehicle traveled in the opposite lane at times. Doc. 18 at ¶ 6; Doc. 24 at ¶ 6. The pursuit met one vehicle on Highway 63, which pulled over, allowing the vehicles to pass. Doc. 18 at ¶ 9; Doc. 24 at ¶ 9. During the pursuit, Officer Long Mandan's vehicle never made contact with Brittany's vehicle, staying 50 to 100 yards away. Doc. 18 at ¶ 10; Doc. 24 at ¶ 10. As Brittany's vehicle was traveling south, in the direction of off-reservation.Stanley County, Officer Long Mandan asked dispatch to contact higher command, either Lieutenant Chad Olson or Chief of Police Burton In The Woods, but neither were on duty. Doc. 18 at ¶ 12; Doc. 24 at ¶ 12. Officer Long Mandan advised dispatch to have an ambulance on standby before the pursuit came to an end. Doc. 19-1 at 6; Doc. 23 at ¶ 6.

         Around 1:18 a.m., Brittany's vehicle traveled towards the west ditch near a curve in the road, overcorrected, swerved towards the east ditch, rolled over and down a hill to the east of the highway, and stopped on its roof. Doc. 1 at ¶8; Doc. 18 at ¶¶ 13-14; Doc. 24 at ¶¶ 13-14.. Officer Long Mandan requested an ambulance at the scene, and after approaching helped Talks out of the front passenger window. Doc. 18 at ¶¶ 15-17; Doc. 24 at ¶¶ 15-17. Officer Long Mandan requested extrication equipment from dispatch after seeing Waco partially ejected and pinned underneath the vehicle. Doc. 18. at ¶ 18; Doc. 24 at ¶ 18. Officer Long Mandan then located Brittany lying motionless approximately 100 feet from the vehicle. Doc. 18 at ¶ 19; Doc. 24 at ¶ 19. Ambulances transported Brittany, Waco, and Talks to the Indian Health Service Hospital in Eagle Butte, and later autopsy examinations revealed that Brittany and Waco died from blunt force trauma injuries. Doc. 1 at ¶ 8; Doc. 18 at ¶¶ 21-22; Doc. 24 at ¶¶ 21-22. A toxicology report indicated that Brittany had alcohol in her system at the time of death. Doc. 18 at ¶¶ 23-24; Doc. 24 at ¶¶ 23-24. An accident reconstruction done by the South -Dakota Highway Patrol surmised that Brittany was driving the vehicle at 131 miles per hour when the rollover occurred. Doc. 18 at ¶ 25; Doc. 24 at ¶ 25.

         On March 18, 2014, Uses Many filed an administrative tort claim, seeking $1, 500, 000 in damages; Uses Main was given notice of the claim's denial on September 17, 2014. Doc. 1 at ¶ 13. On March 11, 2015, Uses Many filed this suit against the United States, seeking the same amount plus costs for the deaths of Brittany and Waco, who were 26 and 23 years of age at the time of their deaths. Doc. 1. Uses Many alleges that the negligence of Officer Long Mandan in the course of the high speed pursuit by "[f]ailing to use proper protocol to engage a vehicle stop, " "[f]ailure to follow proper protocol regarding vehicle pursuit, " "[f]ailure to follow instruction to end high speed pursuit, " "[f]ailure to recognize dangers of high speed pursuit, " and other facts caused the deaths of Brittany and Waco. Doc. 1 at ¶ 9.

         After filing, an answer, Doc. 7, the United States filed a motion to dismiss under Rule 12(b)(1) or 12(b)(6), and a motion for summary judgment under Rule 56(c) in the alternative. Doc. 16. The United States argues that Officer Long Mandan's actions during the pursuit were the product of discretion, which is an exception to tortuous conduct for which the United States can be liable for under the FTCA. Doc. 17 at 6. The United States also argues that Uses Many failed to state a claim upon which relief can be granted because she did not show the existence of any duty that Officer Long Mandan held towards Brittany and Waco under South Dakota state negligence law. Doc. 17 at 13. Finally, in the alternative, the United States argues that Officer Long Mandan was not negligent, and did not violate any applicable duty of care, entitling it to summary judgment. Doc. 17 at 14. Along with this motion, the United States filed a statement of undisputed facts, and several supporting documents. Docs. 18-19, 19-1-19-6. Uses Many opposed dismissal, arguing that CRST policy requires supervisory oversight during pursuits, and because no supervisor was available, the pursuit should not have occurred. See Doc. 22. Uses Many also responded to the United States' statement of undisputed facts, filed her own statement of undisputed material facts, and included several supporting documents. Docs. 22, 22-1-22-3, 23, 24. The United States' reply focuses on the lack of an analogous private right of action under state law for Officer Long Mandan's allegedly negligent conduct. Doc. 25.

         II. Motion to Dismiss Standard

         The United States asserts lack of federal court subject matter jurisdiction and failure to state a claim for which relief can be granted, moving to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Questions of the existence of federal jurisdiction under Rule 12(b)(1) must be decided first, and are for the court to decide alone, regardless of whether the issues involve questions of law or fact. Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). A Rule 12(b)(1) challenge to subject matter jurisdiction can be either facial or factual in nature. Id. at 729 n.6. A facial challenge to federal jurisdiction limits the court to considering the allegations in the plaintiffs complaint, and it must view the allegations in the light most favorable to the plaintiffs. See Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). A factual challenge to federal jurisdiction gives the court the freedom "to weigh the evidence and satisfy itself as to the existence of its power to hear the case, " and it need not view the evidence in the light most favorable to the non-moving party. See Osborn, 918 F.2d at 729 n.6, 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

         The United States has submitted evidence outside of the initial pleadings in support of its Rule 12(b)(1) motion, mounting a factual challenge to this Court's subject matter jurisdiction by contending that Officer Long Mandan was acting in a discretionary function. Doc. 17 at 3, 5-8; Docs 19, 19-1-19-6. This Court can thus "look outside the pleadings in order to determine whether subject matter jurisdiction exists." Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005); see also Lightning Fire v. United States, No. 3:15-CV-03015-RAL, 2017 WL 1944105, at *2-3 (D.S.D. May 9, 2017). The decision to grant the United States' motion to dismiss can be based on: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). By bringing suit and seeking to establish jurisdiction, Uses Many retains the burden of showing that this Court has jurisdiction. See Great Rivers Habitat Alliance v. FEMA. 615 F.3d 985, 988 (8th Cir. 2010); Riley v. United States. 486 F.3d 1030, 1032 (8th Cir. 2007).

         III. Discussion

         Under the FTCA, the United States is "liable to the same extent' as a private party for certain torts of federal employees acting within the scope of their employment." United States v. Orleans, 425 U.S. 807, 813 (1976). The FTCA thus waives, in a limited fashion, the sovereign ' immunity of the United States. See Mader v. United States. 654 F.3d 794, 797 (8th Cir. 2011). The FTCA waives the United States' sovereign immunity for "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, under circumstances where the United States, if a private person, would b6 liable to the claimant in accordance with the law of the place where the act or omission occurred, " 28 U.S.C. ยง 1346(b)(1). The ...

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