Erwine v. United States ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MICHAEL ERWINE, Case No. 3:24-cv-00045-MMD-CSD 7 Plaintiff, ORDER v. 8 UNITED STATES OF AMERICA, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Michael Erwine sued Defendants Sheriff Benjamin Trotter and Churchill 13 County, the United States of America, Michel Hall, John Leonard, Zachary Westbrook, 14 and Gene Burke for alleged violations of his rights under the federal and state 15 Constitution, and Nevada state law, generally arising out of his tenure and termination as 16 a police officer with first Churchill County and later the Washoe Tribe of Nevada and 17 California. (ECF No. 59 (“FAC”).) Before the Court is the United States of America’s 18 motion to dismiss Erwine’s remaining claims1 against it.2 (ECF No. 66 (“Motion”).)3 As 19 further explained below, the Court grants the Motion because Erwine failed to exhaust his 20 administrative remedies pertinent to his remaining claims against the United States. 21 1Erwine stipulated with the Washoe Tribe Defendants and the United States to 22 dismiss three of his claims against them. (ECF No. 91.) 23 2Erwine responded (ECF No. 72) and the United States replied (ECF No. 76). 24 3The Court will address Defendants Michel Hall, John Leonard, Zachary 25 Westbrook (collectively, the “Washoe Tribe Defendants”)’s motion to dismiss (ECF No. 62) and related motion to supplement it (ECF No. 105) in one or more separate orders. 26 Gene Burke joined what the Court construes as Washoe Tribe Defendants’ motion to 27 dismiss—he labelled it ECF No. 40, but he seems to have been referring to ECF No. 62. (ECF No. 81.) The pending motions seeking reconsideration and stays of discovery will 1 II. BACKGROUND 2 The Court incorporates by reference its description of the allegations in both 3 Erwine’s original complaint and operative FAC from its prior order granting Erwine’s 4 motion for leave to file an amended complaint. (ECF No. 58 at 2-3.) Those factual 5 allegations remain the pertinent factual allegations before the Court. 6 Only Trotter and Churchill County opposed Erwine’s motion to amend, arguing that 7 amendment would be futile. (Id. at 3-4.) Under the liberal standard governing motions to 8 amend, the Court found that amendment would not necessarily be futile and granted 9 Erwine leave to amend his complaint. (Id. at 4-6.) Because the Court granted Erwine 10 leave to file an amended complaint, it denied then-pending motions to dismiss filed by the 11 Washoe Tribe Defendants and the United States as moot. (Id. at 7.) 12 The pending Motion followed shortly after Erwine filed his amended complaint. 13 III. DISCUSSION 14 The United States moves to dismiss Erwine’s two remaining claims against it for 15 failure to properly exhaust administrative remedies under the Federal Tort Claims Act, 28 16 U.S.C. §§ 1346(b)(1), 2401(b), 2402, 2671-2680 (“FTCA”), alternatively arguing that he 17 has failed to plausibly state a claim for either tortious discharge or bad faith discharge of 18 employment when his claims are evaluated along with the employment documents 19 reflecting his termination by the Washoe Tribe, which are properly incorporated by 20 reference into his claims. (ECF No. 66 at 2.) The United States further argues Erwine 21 seeks certain remedies that are not available under the FTCA. (Id.) Erwine does not 22 dispute the authenticity of the ‘Form 95’ he submitted to the Department of the Interior 23 (“DOI”) before filing this case—which the United States attached as an exhibit to its 24 Motion—but instead contends its contents adequately put the DOI on notice of the claims 25 he asserts against the United States in this case. (ECF No. 72 at 4.) The Court disagrees. 26 Indeed, because the Court agrees with the United States that Erwine’s Form 95 did not 27 put adequately put the DOI on notice of his tortious and bad faith discharge claims based 28 on a purported refusal to obey unlawful orders, the Court will grant the United States’ 1 Motion for failure to properly exhaust administrative remedies and declines to address the 2 remaining arguments the United States raises in its Motion. 3 Erwine alleges in the Form 95 that his due process rights were violated when he 4 was fired by the Washoe Tribe. (ECF No. 66-2 at 2, 4-5.) It does not mention tortious or 5 bad faith discharge. (Id.) Nor does it mention that he was fired for failure to follow unlawful 6 orders. (Id.) The most Erwine says about the reasons he was fired is that he, “had not 7 been found to have committed any misconduct which would warrant termination under 8 the Tribe’s policies.” (Id. at 5.) This does not state that he was fired for refusing to obey 9 unlawful orders, which is the primary factual contention underlying his tortious and bad 10 faith discharge claims. (ECF No. 59 at 43-45.) 11 But proper exhaustion under the FTCA requires: (1) a “written statement 12 sufficiently describing the injury to enable the agency to begin its own investigation and 13 (2) a sum certain damages claim.” Corey v. McNamara, 409 F. Supp. 2d 1225, 1228 (D. 14 Nev. 2006), aff’d, 265 F. App’x 555 (9th Cir. 2008) (quoting Blair v. Internal Revenue 15 Service, 304 F.3d 861, 864 (9th Cir. 2002)). As described above, Erwine’s Form 95 does 16 not sufficiently describe the injuries he alleges underlying his remaining claims against 17 the United States to enable the DOI to begin an investigation into them. Erwine only 18 alleges violations of his due process rights in his Form 95. (ECF No. 66-2 at 2, 4-5.) As 19 the United States argues, “[t]hat is a different right (with a different source for the right) 20 than the state tort law claims asserted in the First Amended Complaint.” (ECF No. 66 at 21 6.) Alleging a due process violation does not put the DOI on reasonable notice of tortious 22 or bad faith discharge under state law based on firing Erwine after he allegedly failed to 23 obey unlawful orders. Erwine has accordingly failed to exhaust these claims. The United 24 States’ Motion is granted as to Erwine’s tortious and bad faith discharge claims. And as 25 those are the two remaining claims against the United States, the United States is 26 dismissed from this case. 27 /// 28 /// IV. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several 3|| cases not discussed above. The Court has reviewed these arguments and cases and 4|| determines that they do not warrant discussion as they do not affect the outcome of the 5|| Motion before the Court. 6 It is further ordered that the United States’ motion to dismiss (ECF No. 66) is 7 || granted. 8 It is further ordered that the United States of America is dismissed from this case. 9 DATED THIS 6" Day of November 2024. 10 12 □□□□□□□□□□□□□□□□□□□□□ 13 CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28