Jordon S. Kushner, LAW OFFICE OF JORDAN S. KUSHNER, for plaintiff.
Jessica E. Schwie, Leonard J. Schweich, and Vicki A. Hruby, JARDINE, LOGAN & O'BRIEN, PLLP, for defendants Scot Blaine, Kevin Miller and County of Becker.
Richard M. Dahl, MADIGAN, DAHL & HARLAN, PA; and Lonnie F. Bryan, UNITED STATES ATTORNEY'S OFFICE, Assistant Attorney General, for defendants John McArthur and Merlin Deegan.
C. Nicholas Vogel, VOGEL LAW FIRM; and Robert G. Manly, VOGEL LAW FIRM, for defendants Nichole Myree Hensen and Joseph Merz.
MEMORANDUM OPINION AND ORDER AFFIRMING THE JULY 11, 2013 ORDER OF THE MAGISTRATE JUDGE
JOHN R. TUNHEIM, District Judge.
Plaintiff Nathan Strei brings claims against five Defendants in this action, including tort claims against John McArthur and Merlin Deegan in both their official capacities as White Earth tribal police officers and their personal capacities. McArthur and Deegan moved to substitute the United States as the proper defendant for the common law tort claims brought against them, pursuant to the Federal Tort Claims Act ("FTCA"). The Magistrate Judge granted the motion for substitution, and Strei objects. The Court finds that the Magistrate Judge's determination that McArthur and Deegan were acting within the scope of their employment as federal employees at the time of the events giving rise to Strei's tort claims was neither erroneous nor contrary to law. Therefore, the Court will affirm the Magistrate Judge's July 11, 2013 order.
Strei brings various common law tort, state statutory, and federal statutory claims against Defendants. ( See Am. Compl., Jan. 12, 2013, Docket No. 38.) These claims arise out of the November 5, 2011 arrest and removal of Strei from real property in which he claims he had a possessory right, as well as his subsequent detention and criminal prosecution related to the incident. ( Id. ¶ 1.)
I. THE UNDERLYING DISPUTE BETWEEN STREI AND HENSEN
Strei alleges that while he and Defendant Hensen were involved in a "significant relationship" they jointly purchased a home ("the home" or "the property"). ( Id. ¶ 11.) The property is located within the boundaries of both the White Earth Reservation and Becker County. (Tr. at 5-6, July 23, 2013, Docket No. 63.) After Hensen terminated the relationship, Strei continued to reside in the home until Hensen filed an unlawful detainer action against Strei in Becker County District Court. ( Id. ¶¶ 12-13.) The court dismissed Hensen's action and refused to evict Strei from the home. ( Id. ¶ 13.) Following the dismissal of her action, Hensen and Defendant Merz, her boyfriend at the time, allegedly changed the locks on the home and posted no trespassing signs on the property. ( Id. ¶ 14.) Hensen and Merz also began contacting law enforcement requesting that they remove Strei from the property. ( Id. ¶¶ 15-16.) In October 2011, Hensen and Merz allegedly met with Deegan, an officer with the White Earth Police Department, and informed Deegan that Strei was trespassing. ( Id. ¶ 17.) In response, Deegan and another officer came to the property, but left without taking further action after Strei showed the officers documentation establishing his claim of ownership in the property. ( Id. )
II. STREI'S ARREST
On November 1, 2011, White Earth Police Investigator McArthur received an email from Becker County Deputy Scot Blaine regarding the property. (Exs. Regarding Mem. in Supp. of Substitution, Ex. 5 at 9:4-12, May 1, 2013, Docket No. 51.) The email alerted McArthur that if the White Earth Police Department received a call regarding the property, they should respond and arrest Strei for misdemeanor trespassing if they found him on the property. (Substitution Ex. 6.) McArthur caused the email to be forwarded to the entire White Earth Police Department. (Substitution Ex. 3 at 53:15-54:8; Substitution Ex. 5 at 9:17-10:4.)
On November 5, 2011, Deegan returned to the property while on duty after receiving a call from White Earth dispatch informing him that Hensen had called to report that Strei was in the home. (Substitution Ex. 3 at 43:5-15, 44:16-23; Substitution Ex. 5 at 12:24-13:16.) Deegan searched the home for firearms then made a phone call to McArthur to ascertain whether the directive to arrest Strei was still in effect. (Substitution Ex. 3 at 56:3-58:7; Substitution Ex. 5 at 13:9-14:12; Am. Compl. ¶¶ 19-20.) McArthur called Blaine who confirmed that the information communicated in the November 1 email was still accurate and that Strei could be placed under arrest and taken into custody. (Substitution Ex. 5 at 14:13-20.) McArthur then called Deegan, and directed him to proceed with an arrest if Strei refused to leave the property. ( Id. at 15:1-18; Substitution Ex. 3 at 60:23-61:11.)
Strei refused to leave the property and Deegan arrested Strei and transported him to the Becker County Jail. (Am. Compl. ¶¶ 19-20; Substitution Ex. 3 at 60:4-11, 63:7-64:19, 66:13-14.) Deegan later wrote a report of the incident for the White Earth Police Department files. (Substitution Ex. 4.)
III. SCOPE OF WHITE EARTH POLICE ...