Case 3:12-cv SU Document 17 Filed 12/19/12 Page 1 of 17 Page ID#: 68

Transcription

1 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 1 of 17 Page ID#: 68 Michael C. Lewton, OSB No Internet mlewton@cosgravelaw.com Thomas W. Brown, OSB No Internet tbrown@cosgravelaw.com COSGRAVEVERGEER KESTERLLP Telephone: (503) Facsimile: (503) for Defendants The Confederated Tribes of the Warm Springs Reservation of Oregon and Tod Henry Kerr UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION Estate of Grace Kalama, by and through Her personal representative, Debbie Scott, Estate of Sean Starr, by and through his personal representative, Ramona Starr, Valerie Suppah, by and through her personal representative, Lucille Suppah, and Ladamere Kalama, by and through his conservator, Elmer Scott, Plaintiffs, Case No. 3:12-cv SU MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON AND TOD HENRY KERR S MOTION TO DISMISS (ORAL ARGUMENT REQUESTED) v. Jefferson County, a political subdivision of the State of Oregon; Jason Michael Evan; The Confederated Tribes of the Warm Springs Reservation of Oregon; Tod Henry Kerr and Does (1 through 5), Defendants. I. INTRODUCTION This action arises from an accident involving a car driven by April Scott-Kalama (Scott-Kalama) and a car driven by defendant Warm Springs Tribal Police Officer Tod Henry Kerr (Kerr) on U.S. Route 26 in Jefferson County, Oregon. The passengers in Page 1 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

2 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 2 of 17 Page ID#: 69 Scott-Kalama s car either died or were hurt in the accident, which followed shortly after Scott-Kalama fled a traffic stop conducted by defendant Jefferson County Sheriff Deputy Jason Evan (Evan). Plaintiffs allege two claims for relief one based on federal civil rights violations and one based on common law negligence. All of plaintiffs claims against defendants Confederated Tribes of the Warm Springs Reservation of Oregon (the Tribe) and Kerr should be dismissed (or possibly stayed) because: 1. This court lacks subject matter jurisdiction over plaintiffs claims against the Tribe and Kerr. Indian tribes are domestic dependent nations that may not be sued absent Congressional authorization or an express waiver by the tribe. Employees of an Indian tribe acting in their scope of employment are protected by the tribe s immunity if the remedy sought from the employee will operate against the tribe. Plaintiffs complaint fails to show any waiver or abrogation of the Tribe s immunity. Additionally, plaintiffs are attempting to hold the Tribe vicariously liable for actions taken by Kerr in his official capacity as a tribal employee. Both the Tribe and Kerr are thus immune from suit. 2. This court should refrain from exercising jurisdiction over plaintiffs claims against the Tribe and Kerr. Interests of intergovernmental comity between the United States and tribal sovereigns require that actions brought in federal court that appear to arise under tribal court jurisdiction must be dismissed or stayed while plaintiffs pursue all available tribal court remedies. Here, plaintiffs raise claims based on alleged activity carried out by the Tribe and Kerr, at least in part, on tribal land. Therefore, a colorable claim of tribal court jurisdiction exists over plaintiffs claims against the Tribe and Kerr. Plaintiffs Page 2 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

3 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 3 of 17 Page ID#: 70 fail to allege that they have exhausted their remedies in that court. Until they do, their claims against the Tribe and Kerr should be dismissed or stayed. 3. Plaintiffs first claim for relief alleging federal civil rights violations fails to state a claim upon which relief may be granted. A complaint must contain sufficient facts to support a facially plausible claim for relief. Plaintiffs fail to include sufficient facts to support any of the alleged constitutional violations referred to in their first claim for relief. Accordingly, plaintiffs first claim must be dismissed. II. FACTUAL BACKGROUND Without confirming or denying plaintiffs allegations, and for the purposes of these motions and the supporting memorandum only, the Tribe and Kerr rely on the facts as stated in plaintiffs complaint. III. ARGUMENT A. Sovereign Immunity This court lacks subject matter jurisdiction over plaintiffs claims against the Tribe and Kerr because of tribal sovereign immunity. The court should therefore dismiss plaintiffs complaint under Fed. R. Civ. P. 12(b)(1). i. Motion to dismiss standard A motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(1) (Rule 12(b)(1)) addresses the court's subject matter jurisdiction. Because it is presumed that a case lies outside the court s jurisdiction, the burden is on the party asserting jurisdiction to show that the court has subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). Rule 12(b)(1) motions may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court may consider extrinsic evidence. Page 3 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

4 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 4 of 17 Page ID#: 71 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). An assertion of sovereign immunity is properly raised as a Rule 12(b)(1) motion. Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, (9th Cir. 2007). ii. The Tribe is immune from all of plaintiffs claims Indian tribes may not be sued in federal court absent Congressional authorization or an express waiver by the tribe. Puyallup Tribe, Inc. v. Dep't of Game of State of Wash., 433 U.S. 165, , 97 S. Ct. 2616, 53 L. Ed. 2d 667 (1977); Kiowa Tribe of Okla. v. Mfg. Techs, Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1988). Immunity is not dependent upon a distinction between on-reservation and offreservation conduct[;] it applies in both contexts. Ingrassia v. Chicken Ranch Bingo & Casino, 676 F. Supp. 2d 953, 957 (E.D. Cal. 2009) (citing Kiowa, 523 U.S. at ). The plaintiff bears the burden of showing that there has been a waiver by the tribe or Congressional abrogation of tribal sovereign immunity. Id. at 956; see Tosco Corp. v. Communities For A Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (a federal court must dismiss a complaint that fails to show the existence of whatever is essential to federal court jurisdiction). Finally, because sovereign immunity is jurisdictional in nature, its recognition by the courts is mandatory. Puyallup Tribe, 433 U.S. at 173. In this case, the Tribe is a federally-recognized Indian tribe. 72 Fed. Reg (2007). Accordingly, the Tribe is entitled to sovereign immunity absent abrogation by Congress or an express waiver by the tribe. The complaint does not allege a waiver or Congressional abrogation of the Tribe s immunity. Thus, plaintiffs have failed to carry their burden of showing they have a right to sue the Tribe. Accordingly, the court should dismiss plaintiffs claims against the Tribe for lack of subject matter jurisdiction. Page 4 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

5 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 5 of 17 Page ID#: 72 iii. The Tribe s immunity bars all of plaintiffs claims against Kerr Tribal immunity protects individual tribal employees acting within their official capacity and the scope of their employment if the remedy that the plaintiff seeks will operate against the tribe. Maxwell v. County of San Diego, 697 F.3d 941, 953 (9th Cir. Sept. 13, 2012); Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008). A remedy will operate against a tribe if the tribe is the real, substantial party in interest. Id. In Cook, tribal immunity protected low-ranking, individual tribal employees from a suit for money damages because the plaintiff sought to hold the tribe vicariously liable for the actions of those employees. See 548 F.3d at 727 (holding that plaintiffs cannot circumvent tribal immunity through a mere pleading device ). Here, plaintiffs allege that Kerr acted within his official capacity and in the scope of his employment as a Warm Springs Tribal Police Officer. Complaint, 11. Plaintiffs also seek to hold the Tribe vicariously liable for Kerr s actions. Id. 29, 31, 33, 37, 45. As in Cook, the Tribe is the real party in interest and its immunity properly extends to Kerr. Accordingly, the court should dismiss plaintiffs claims against Kerr. iv. Conclusion Because plaintiffs have failed to allege a waiver or Congressional abrogation of the Tribe s sovereign immunity, that immunity bars all of plaintiffs claims against the Tribe. Additionally, the Tribe s immunity bars all of plaintiffs claims against Kerr because a remedy against Kerr would operate against the Tribe. For both reasons, the court lacks subject matter jurisdiction over plaintiffs claims against the Tribe and Kerr and, therefore, should dismiss those claims. Page 5 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

6 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 6 of 17 Page ID#: 73 B. Exhaustion of Tribal Court Remedies In the alternative to the court dismissing plaintiffs claims against the Tribe and Kerr on the basis of sovereign immunity, the court should dismiss or stay this action until plaintiffs exhaust their available tribal remedies. i. Exhaustion standard Interests of comity between the United States and tribal sovereigns require that actions brought in federal court, which appear to arise under tribal court jurisdiction, must be stayed or dismissed pending a jurisdictional determination by the tribal court. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14-15, 107 S. Ct. 971, 94 L. Ed. 2d 10 (1987); see also Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, , 105 S. Ct. 2447, 85 L. Ed. 2d 818 (1985) (holding that the inquiry over whether the tribal court has jurisdiction should be conducted in the first instance in the Tribal Court itself ); Burlington N. R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991) (while while the exhaustion requirement is mandatory, a district court has discretion whether to dismiss or stay the proceeding pending exhaustion of tribal remedies). In other words, exhaustion of tribal court remedies is mandatory when there is a colorable question as to whether the dispute either arises on the reservation or involves a reservation affair. Crawford v. Genuine Parts Co., Inc., 947 F.2d 1405, 1407 (9th Cir. 1991) (quoting Stock W. Corp. v. Taylor, 942 F.2d 655, 661 (9th Cir. 1991) on reh'g, 964 F.2d 912 (9th Cir. 1992)); see also Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 920 (9th Cir. 2008) (colorable question of tribal court jurisdiction when plaintiffs and defendants were tribal members and at least some key events occurred on reservation). Page 6 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

7 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 7 of 17 Page ID#: 74 ii. There is a colorable question that the dispute in this case arises on the reservation and involves reservation affairs According to plaintiffs complaint, while the collision underlying their complaint occurred outside of the Tribe s reservation, plaintiffs are suing the Tribe and Kerr based on conduct that occurred, at least in part, on the reservation. Plaintiffs allege that Kerr was within the boundaries of the reservation and acting in his capacity as a tribal police officer while monitoring the activities of Defendant Evans [sic] during the search for the burglary suspects and when Evan stopped Scott-Kalama s car. Complaint, 26. Additionally, plaintiffs allege that the Tribe failed to adequately train and supervise its tribal police officers. Id. 29. These allegations implicate on-reservation conduct. They also involve reservation affairs in that they require an examination of the Tribe s administration of its police department. See Stock W. Corp., 942 F.2d at 662 (noting that an action clearly involves reservation affairs when it directly implicate[s] tribal interests on the reservation ). Accordingly, there is a colorable question that the Warm Springs tribal court has jurisdiction over this dispute. iii. None of the exceptions to the exhaustion requirement apply in this case Exhaustion of tribal remedies is not required when tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction. Crow Tribe, 471 U.S. at 856 n. 21. Here, none of the exceptions apply. Plaintiffs have the burden to allege and prove bad faith or motive to harass for the first exception to apply. 1 A & A Concrete, Inc. v. White Mountain Apache Tribe, It is unsettled whether the bad faith exception applies narrowly to the actions of a tribal court alone, or broadly to the actions of the litigants as well as to those of the Page 7 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

8 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 8 of 17 Page ID#: 75 F.2d 1411, 1417 (9th Cir. 1986). Here, there has been no assertion of jurisdiction by the Tribe s court, obviating any claim of bad faith or harassment on the part of that court. Moreover, the Tribe and Kerr assert the Tribe court s jurisdiction at the outset of litigation. See Crawford, 947 F.2d at 1408 (finding no bad faith or harassment even when the assertion of tribal jurisdiction was made for the first time only three weeks before trial). Thus, the bad faith exception does not apply. The Warm Springs tribal jurisdiction extends to the claims plaintiffs make against the Tribe and Kerr. Warm Springs Tribal Code (WSTC) (2)(a) (providing jurisdiction over claims involving an Indian defendant found upon the Reservation. ); Id to (providing procedure for bringing tort claims in Tribe s court). Thus, the second exception is also inapplicable. Finally, the third exception futility generally applies only when a tribe does not have a functioning court system. Felix S. Cohen, Handbook of Federal Indian Law 7.04[3] (2012 ed.); see also Boozer v. Wilder, 381 F.3d 931, 936 (9th Cir. 2004) (so concluding). Here, the Tribe has a functioning court system and an established procedure for injured parties to bring claims against the Tribe and tribal employees. WSTC to tribal court. Grand Canyon Skywalk Dev., LLC v. "SA' NYU WA, 2012 WL *2 (D. Ariz. Mar. 26, 2012) (unpublished) (comparing the narrow and broad views but finding that the exception is meant to apply primarily to actions of the Tribal Court and not the litigants); compare Landmark Golf Ltd. P'ship v. Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169, 1176 (D. Nev. 1999) (applying narrow view) with Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 2008) (applying broad view). Under either view, for the reasons that follow, the bad faith exception does not apply in this case. 2 The fact that a case has not been filed in tribal court does not affect application of the third exception. Sharber v. Spirit Mountain Gaming Inc., 343 F.3d 974, 976 (9th Cir. 2003). Page 8 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

9 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 9 of 17 Page ID#: 76 iv. Conclusion There is a colorable question that the Warm Springs tribal court has jurisdiction over plaintiffs claims. None of the exhaustion exceptions apply. Accordingly, this court must either dismiss or stay the action until plaintiffs exhaust their available tribal court remedies. C. Failure to State a Claim Upon Which Relief May be Granted (Plaintiffs First Claim for Relief) In the alternative to the court dismissing plaintiffs claims on the basis of sovereign immunity, or dismissing or staying plaintiffs claims pending exhaustion of their available tribal court remedies, pursuant to Fed. R. Civ. P. 12(b)(6), the court should dismiss plaintiffs first claim for relief alleging multiple federal constitutional violations for failure to state a claim upon which relief may be granted. i. Motion to dismiss standard A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Rule 12(b)(6)) tests the legal sufficiency of the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). For a Rule 12(b)(6) motion, all well-plead and non-conclusory factual allegations are presumed to be true and are viewed in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A Rule 12(b)(6) motion requires the court to engage in a two-pronged approach. Iqbal, 556 U.S. at 681. First, the court must identify allegations that merely recite legal conclusions and are therefore not entitled to the assumption of truth. Id. Next, the court must analyze the factual allegations in the complaint to determine if they plausibly suggest an entitlement to relief. Id. If they do not, the court must dismiss the complaint. Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); see Page 9 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

10 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 10 of 17 Page ID#: 77 also id. (the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. ) ii. Plaintiffs cannot state a claim for relief under 42 U.S.C against the Tribe and Kerr In the first claim for relief, plaintiffs allege that the Tribe and Kerr caused them to be deprived of their constitutional rights under the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments, entitling plaintiffs to money damages under 42 U.S.C 1983 (Section 1983). Complaint, 31. To state a Section 1983 claim, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right. Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). 3 Plaintiffs raise each alleged constitutional violation with the kind of bare legal conclusions that the Supreme Court categorically rejected in Iqbal. See Complaint, 31 (confirming statement). Accordingly, these conclusory allegations are not entitled to the assumption of truth and should be disregarded by the court. Moreover, even considering any well-plead facts, as a matter of law, none of the constitutional provisions cited by plaintiffs apply in the context of an accidental car crash during a police chase. a. unreasonable seizure (Fourth Amendment) Plaintiffs first claim that Tribe and Kerr committed a seizure by excessive force, thus violating the Fourth Amendment. Complaint, 31(a). A seizure is a governmental termination of freedom of movement through means intentionally applied[.] Jensen, 145 F.3d at 1083 (internal quotations omitted); see also Brower v. County of Inyo, For the reasons that follow, plaintiffs fail to allege facts that plausibly make out any civil rights violation. Therefore, the Tribe and Kerr do not address whether plaintiffs have alleged facts that plausibly establish that these defendants were acting under the color of state law, something the Tribe and Kerr will do later if necessary. Page 10 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

11 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 11 of 17 Page ID#: 78 U.S. 593, , 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989) (no seizure occurs when a suspect crashes their car during a police chase because the Fourth Amendment addresses misuse of power, not the accidental effects of otherwise lawful government conduct ); County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (no seizure occurs when police unintentionally crashed into motorcyclist during pursuit). Plaintiffs do not allege that Kerr intended to crash into Scott-Kalama s car or otherwise intended to terminate the movement of anyone involved in the accident. Thus, this part of plaintiffs first claim for relief should be dismissed. b. punishment without trial by jury (Fifth, Sixth, Eighth and Fourteenth Amendment) Plaintiffs next claim that the Tribe and Kerr subjected them to punishment without a trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Complaint, 31(b). The only federal constitutional provision included in this part of plaintiffs complaint that provides a relevant jury trial right, the Sixth Amendment, applies by its express terms only to criminal prosecutions. US Const, Amend VI. 4 It does not then apply to pre-arrest police conduct. Thus, this part of plaintiffs first claim for relief should be dismissed. 4 The Fifth Amendment provides a right not to be indicted for a capital or infamous crime except by a grand jury. US Const, Amend V. Nothing in plaintiffs complaint provides a plausible factual basis for a Section 1983 claim based on the claimed denial by the Tribe and Kerr of plaintiffs right to indictment by grand jury in this case. Moreover, even if plaintiffs truly mean to allege a claim of cruel and unusual punishment under the Eighth Amendment, they could not do that because that Amendment applies only in the post-conviction context. Bell v. Wolfish, 441 U.S. 520, 579, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Page 11 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

12 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 12 of 17 Page ID#: 79 c. intrusion of bodily security and integrity (Ninth and Fourteenth Amendments) Plaintiffs next claim that the Tribe and Kerr denied them the right to be free from intrusions of their bodily integrity and personal security in violation of the Ninth and Fourteenth Amendments. Complaint, 31(c). The Ninth Amendment is not a basis for substantive rights. Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986). The Fourth Amendment, rather than the Fourteenth Amendment, provides the right to be free from intrusions on bodily security in the narrow context of harassing and abusive behavior that rises to the level of an unreasonable seizure[.] Fontana v. Haskin, 262 F.3d 871, 879 (9th Cir. 2001). But such a claim is simply an alternative way to raise an excessive force claim when intentional police conduct may not otherwise constitute excessive force. Id. Here, again, plaintiffs don t allege any facts showing that Kerr intended for the collision with Scott s car to happen. Accordingly, this part of plaintiffs first claim for relief should be dismissed. d. restraint of liberty without a warrant (Fifth and Fourteenth Amendments) Plaintiffs next claim that defendants the Tribe and Kerr restrained them without a warrant and unreasonably in violation of the Fifth and Fourteenth Amendments. Complaint, 31(d). The Fifth Amendment does not have a warrant clause. See Andresen v. Maryland, 427 U.S. 463, 477, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) (so observing); US Const, Amend V. The Fourth Amendment does, but a claim based on it requires facts supporting the existence of a seizure. See Brower, 489 U.S. at (so concluding). As noted, plaintiffs do not include such facts in their complaint. Nor can paragraph 31(d) be construed as properly pleading a due process claim under the Fifth and Fourteenth Amendments. To be such a claim, plaintiffs would have Page 12 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

13 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 13 of 17 Page ID#: 80 to allege facts supporting that Kerr intended to cause the plaintiffs harm for a purpose unrelated to the goal of making an arrest. Lewis, 523 U.S. at 849. As noted, plaintiffs don t allege Kerr intended to cause any harm, let alone harm unrelated to the goal of making an arrest. Accordingly, this part of plaintiffs first claim for relief should be dismissed. e. denial of equal protection of the laws (Fifth and Fourteenth Amendments) Plaintiffs also claim that the Tribe and Kerr denied them equal protection of the laws in violation of the Fifth and Fourteenth Amendments. Complaint, 31(e). The Fourteenth Amendment provides that states may not deprive persons of equal protection of the laws. 5 US Const, Amend XIV. But a plaintiff bringing an equal protection claim against state police must allege either (1) that the police acted with an intent to discriminate against the plaintiff based upon race, nationality, or alienage, or (2) that the police intended to treat the plaintiff differently from others similarly situated without a rational basis. Alexander v. City & County of Honolulu, 545 F. Supp. 2d 1122, 1131 (D. Haw. 2008) (citing Washington v. Davis, 426 U.S. 229, , 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)). Here, plaintiffs fail to allege facts supporting any of the elements required for an equal protection-based claim under Section Specifically, they do not allege that the Tribe or Kerr intentionally discriminated against them, that they are members of any suspect class, or that the defendants intended to treat them differently from others. Accordingly, this part of plaintiffs first claim for relief should be dismissed. 5 Although the Fifth Amendment does not have an equal protection clause, the due process clause of the Fifth Amendment prohibits federal actors from denying individuals equal protection of the laws just as the Fourteenth Amendment does for state actors. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975). Plaintiff does not allege any facts supporting that the Tribe and Kerr were federal actors. Page 13 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

14 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 14 of 17 Page ID#: 81 f. the complaint fails to allege facts showing a plausible due process violation against The Tribe or Kerr Because plaintiffs constitutional allegations are conclusory and irrelevant, the court must turn to the factual allegations contained in the complaint to see if they support a plausible claim for relief. Doing so supports that plaintiffs have failed to show a plausible violation of the only constitutional provision that could apply in this context the substantive due process aspect of the Fourteenth Amendment. See Lewis, 523 U.S. at 836 (claims of excessive police force that do not amount to a Fourth Amendment seizure must be analyzed under the due process clause of the Fourteenth Amendment). As alleged, an accident occurred when Scott-Kalama s and Kerr s cars collided as Kerr travelled generally southbound on highway 26 to assist Defendant Evans [sic] and that Defendant Kerr T-boned Plaintiffs car.... Complaint, 27. Plaintiffs claim that Kerr acted negligently, recklessly, and with willful and wanton disregard for [their] rights and safety[.] Id. at 28. A substantive due process claims requires (1) a governmental deprivation of life, liberty, or property, and (2) an executive abuse of power that is so egregious it shocks the conscience. Lewis, 523 U.S. at 846. To satisfy the second element in the context of an excessive force claim stemming from police pursuit, a plaintiff must show that the police had a purpose to cause harm unrelated to the legitimate object of arrest. Id. at 849. Plaintiffs do not allege any facts that plausibly show that Kerr had such a purpose. See Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (allegations of negligence, recklessness, and even willful and wanton disregard by the police during a pursuit do not make out a Section 1983 due process claim); accord Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, (9th Cir. 1998) (police officers did violate injured bystander s due process rights when they accidentally shot Page 14 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

15 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 15 of 17 Page ID#: 82 him because they did not intend to commit any harm unrelated to the legitimate use of force); Bingue v. Prunchak, 512 F.3d 1169, 1177 (9th Cir. 2008) (holding that the intent to harm standard from Lewis applies to emergency and non-emergency high-speed police chases alike); Funez v. Guzman, 687 F. Supp. 2d 1214, 1228 (D. Or. 2009) (negligence on the part of state officials, whether simple or gross, is not sufficient to establish liability for a due-process violation). Because there is no respondeat superior liability for entities under Section 1983, plaintiffs may only hold a public entity liable based on a policy or custom that inflicted the constitutional injury. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). 6 Here, plaintiffs allege that the Tribe failed to adequately train and supervise its tribal police officers. Complaint, 29. They do not allege a policy or custom of the Tribe that inflicted an actionable due process-based injury. Moreover, plaintiffs have not plead any facts showing that the failure to train [Kerr] amounts to deliberate indifference to the rights of persons with whom the police come into contact, Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)), a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of its actions. Bd. of County Com'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 410, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). In sum, plaintiffs do not allege any plausible substantive due process claim against the Tribe or Kerr. Accordingly, their first claim for relief must be dismissed. 6 Defendants do not concede that the Tribe is a public entity for the purposes of a claim under Monell and will, if necessary, address that issue later in the case. Page 15 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

16 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 16 of 17 Page ID#: 83 g. Summary Plaintiffs first claim for relief fails to state a claim upon which relief may be granted against the Tribe and Kerr. Accordingly this claim against both the Tribe and Kerr should be dismissed under Rule 12(b)(6). IV. CONCLUSION Plaintiffs complaint against the Tribe and Kerr should be dismissed based on the Tribe and Kerr s sovereign immunity. In the alternative, the court should dismiss or stay the claims against the Tribe and Kerr while plaintiffs exhaust their tribal court remedies. Finally, if the court denies the Tribe and Kerr s motions to dismiss based on sovereign immunity or their motion to dismiss/stay based on exhaustion of tribal remedies, plaintiffs first claim for relief against the Tribe and Kerr should be dismissed. CERTIFICATE OF COMPLIANCE This brief complies with the applicable word-count limitation under LR 7-2(b) because it contains 4,966 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of authorities, signature block, and any certificates of counsel. DATED: December 19, 2012 COSGRAVEVERGEER KESTERLLP /s/ Michael C. Lewton Michael C. Lewton, OSB No Internet mlewton@cosgravelaw.com Thomas W. Brown, OSB No Internet tbrown@cosgravelaw.com COSGRAVEVERGEER KESTERLLP Telephone: (503) Facsimile: (503) for The Confederated Tribes of the Warm Springs Reservation of Oregon and Tod Henry Kerr Page 16 - MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED

17 Case 3:12-cv SU Document 17 Filed 12/19/12 Page 17 of 17 Page ID#: 84 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANTS THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON AND TOD HENRY KERR S MOTION TO DISMISS on the date indicated below by: mail with postage prepaid, deposited in the US mail at Portland, Oregon, hand delivery, facsimile transmission, overnight delivery, electronic filing notification. William L. Ghiorso The Ghiorso Law Firm 495 State Street, Suite 500 Salem, OR Of for Plaintiffs Robert E. Franz, Jr. Law Offices of Robert Franz, Jr. 730 B. Street P.O. Box 62 Springfield, OR Of for Defendants Jefferson Cty and Jason Evan DATED: December 19, 2012 /s/ Michael C. Lewton Michael C. Lewton Thomas W. Brown Page 1 - CERTIFICATE OF SERVICE