Cole Ex Rel. Estate of Bearcrane v. Oravec

FILED
NOT FOR PUBLICATION JAN 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EARLINE COLE, as an individual and as No. 10-35710
personal representative of the Estate of
Steven Bearcrane; CLETUS COLE, as an D.C. No. 1:09-cv-00021-RFC-
individual and as personal representative CSO
of the Estate of Steven Bearcrane;
VERONICA SPRINGFIELD, as an
individual and as personal representative MEMORANDUM *
of the Estate of Robert Springfield; P. B.,
minor child; V. S., minor child,
Plaintiffs - Appellees,
v.
MATTHEW ORAVEC, in his individual
capacity,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted August 4, 2011
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and M. SMITH, Circuit Judges, and BENITEZ, District
Judge.**
Defendant-Appellant Matthew Oravec, an agent with the Federal Bureau of
Investigation, appeals from the district court’s denial of his qualified immunity
motion in this Bivens action 1 brought on behalf of two deceased Native American
men. The Appellees are relatives of the two deceased men – Steven Bearcrane and
Robert Springfield. The Appellees allege that Oravec violated their right to equal
protection when he failed to conduct a sufficiently thorough investigation of the
two deaths out of an alleged animus toward Native Americans.
To state a violation of equal protection, the Appellees must demonstrate both
differential treatment and discriminatory motive. Wayte v. United States, 470 U.S.
598, 608-09 (1985) (citations omitted). Reviewing de novo, see Dunn v. Castro,
621 F.3d 1196, 1198 (9th Cir. 2010), we conclude the district court properly denied
qualified immunity because the amended complaint states a valid claim against
Oravec with regard to the investigation into Steven Bearcrane’s death. However,
because the allegations made on deceased Robert Springfield’s behalf are not
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
1
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
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sufficient, we reverse that portion of the court’s decision and remand with leave to
amend.
1. The amended complaint sufficiently alleges differential treatment with
regard to the Bearcrane investigation. It alleges that contrary to standard
procedures, agent Oravec provided Bearcrane’s family with less investigatory
services than he would have provided to a non-Native American victim’s family.
These allegations, viewed together with the non-conclusory allegations regarding
the poor provision of law enforcement services to Native Americans on the
reservations, allow the court “to draw the reasonable inference” that agent Oravec
conducted the Bearcrane investigation differently than he would have conducted an
investigation of a similarly situated non-Native American victim. See Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009).
The amended complaint also sufficiently alleges discriminatory motive. It
alleges that despite the fact that Bearcrane’s death was ruled a homicide, the non-
Native American man admitted to shooting Bearcrane, and there was evidence
negating the claim of self-defense, Oravec failed to properly investigate the case.
Moreover, it alleges that Oravec consistently closed cases involving Indian victims
without adequate investigation, and that he has been heard to make improper
remarks about female Native American victims of sexual assault. Viewed together,
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these allegations “plausibly suggest” the differential treatment was due to the fact
that Bearcrane was a Native American and his killer was not, and that agent Oravec
acted with an animus toward Native Americans when he conducted the allegedly
poor investigation into Bearcrane’s death. See Iqbal, 129 S. Ct. at 1951; see also
Elliot-Park v. Manglona, 592 F.3d 1003, 1006-07 (9th Cir. 2010).
2. On the other hand, the amended complaint does not contain sufficient non-
conclusory allegations of differential treatment as to the Springfield investigation.
There are no allegations that Oravec conducted the Springfield investigation any
differently than he would have conducted any other investigation. Even viewed
together with the allegations of differential treatment of Native Americans in
general, the allegations as to the Springfield investigation are “merely consistent
with” Oravec’s liability, and therefore “stop[] short of the line between possibility
and plausibility of entitlement to relief.” See Iqbal, 129 S. Ct. at 1949 (citation and
internal quotation marks omitted).
3. The Appellees seek leave to amend if any part of their complaint against
Oravec is dismissed. The court “should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Here, the allegations “strongly suggest” the
complaint can be saved by amendment. See Balistreri v. Pacifica Police Dep’t,
901 F.2d 696, 701 (9th Cir. 1990) (as amended). We therefore remand to allow the
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Appellees leave to amend their complaint with regard to the Springfield
investigation.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part; and REMANDED.
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