Unpublished Disposition, 888 F.2d 130 (9th Cir. 1986)

MEMORANDUM^* 

The district court granted summary judgment in favor of defendants and appellees, Robert Wilcox ("Wilcox"), John Hoppe ("Hoppe"), and the United States, on appellant Rex Huesties' ("Huesties") claims for civil rights and due process violations pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 and the Federal Tort Claims Act ("FTCA"). Huesties contends that he was wrongfully, and without due process, discharged from his position with the Umatilla Tribal Police Department and deprived of his police certification. We affirm.

STATEMENT OF UNCONTROVERTED FACTS

Huesties was employed as a patrolman for the Umatilla Tribal Police Department from April 1984 until his dismissal in October 1986. Wilcox was the former Department chief of police. Hoppe was Standards and Certification Coordinator for the Oregon Bureau on Police Standards and Training ("BPST"). The United States is being sued on behalf of the Bureau of Indian Affairs ("BIA").

In November 1985, Huesties submitted to the BPST an application for intermediate police certification. CR 122 at 84. In reviewing this application, Hoppe discovered certain inconsistencies and inaccuracies. Id. In February 1986, Hoppe telephoned Wilcox to discuss these discrepancies. Id. at 83. Among other things Hoppe expressed his belief that Huesties had falsified his records, the Department was generally dissatisfied with Huesties' performance, and Huesties should be disciplined. Id. Hoppe also noted that this would be difficult owing to Huesties' being married to an Indian. Id. at 85. Eventually the problems were cleared up and Huesties was issued an intermediate certification in May 1986.

Meanwhile in March 1986, eight of the eleven subordinate patrol and dispatch personnel of the Department, including Huesties, signed a letter of complaint about misconduct and violations of law by the supervisory staff, including Wilcox. The letter was addressed to Ken Hall ("Hall"), Chairman of the Board of the Trustees of the Umatilla Indian Tribe ("the Board of Trustees"), and a copy was sent to William Sandoval ("Sandoval"), Superintendent of the BIA, Umatilla Agency ("the Agency"). ER 26.

Sandoval and Hall met with each of the complainants in April 1986, CR 144 at 90, and Mark Werner ("Werner"), Supervisory Criminal Investigator for the BIA, was called in to conduct an investigation. Id. at 92-93. Werner found numerous violations of procedure, bad judgment, and improprieties, but no civil rights violations. Id. at 57-59.

Hall issued a memorandum reprimanding Wilcox, among others. ER 29. However, the rank and file employees who had filed the original complaint were unhappy with the penalties imposed and demanded more action. As a result, the Board of Trustees passed Resolution 86-61, which authorized further hearings to be conducted by Charles Tracy ("Tracy"), a professor at Portland State University. CR 122 at 115-118.

On August 31, 1986, between the time when Tracy had been assigned to conduct hearings and the time his report was issued, Robert Hornbuckle ("Hornbuckle"), a sergeant in the Department, recommended that disciplinary action be taken against Huesties for refusing to assume some task assigned to him. CR 122 at 144. On September 12, 1986, Huesties wrote to Wilcox regarding Hornbuckle's August 31 letter, and stated that he wished to "compromise on this situation." ER 31. In another memorandum to Wilcox dated September 26, 1986, Huesties expressed his desire to file a "formal grievance." ER 32.

On September 8, 1986, after conducting hearings, Tracy issued a report which found that Wilcox and other Department officers had violated Department procedures. CR 122 at 119-39. In addition, the report found that Huesties had been untruthful, and recommended that he be dismissed. Id. at 134.

In an October 7, 1986 memorandum from Wilcox, Huesties was notified that he had been suspended from his position with the Department and that he would be terminated as of October 11, 1986. CR 122 at 151. On October 15, 1986, Huesties wrote to Hall concerning his termination, and requested a "formal Grievance" pursuant to Sec. 5.6.3 of the Tribal Policy and Procedures Manual. CR 122 at 153.

Huesties' police certification was revoked in hearings before the BPST. Huesties challenged this decision in Oregon state court, which upheld the revocation.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 108 S. Ct. 198 (1988). The appellate court's review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c). Id. Summary judgment in favor of the moving party is appropriate if the opposing party fails to: (1) produce evidence to support the existence of all essential elements on which he bears the burden of proof; and (2) show that all disputes about material facts or necessary inferences from the facts could reasonably be resolved in favor of either party by the trier of fact. See California Architectural Bldg. Prods., 818 F.2d at 1468; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Matsushita v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

Review of a district court's determination of subject matter jurisdiction under the discretionary function exception to the Federal Tort Claims Act is de novo. Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1499 (9th Cir. 1989). A district court's factual findings on jurisdictional issues must be accepted unless they are clearly erroneous. Bruce v. United States, 759 F.2d 755, 758 (9th Cir. 1985).

DISCUSSION

The district court found that Huesties was not an Indian for purposes of his Secs. 1981 and 1985 claims, and that he failed to raise a triable issue of conspiracy to deprive him of his civil rights within the meaning of Sec. 1985(3). Because we agree that no triable issue exists as to conspiracy, it is unnecessary to determine whether the court correctly resolved the matter of Huesties' status as a member of a protected class.

To state a claim under Sec. 1985(3), plaintiff must show that the alleged conspiracy was motivated by some racial or class-based, invidiously discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102-04, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). "A civil conspiracy occurs when the parties have reached 'a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement.' " Transgo v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1020 (9th Cir. 1985) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 809-810, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946)), cert. denied, 474 U.S. 1059 (1986). "A conspiracy must be looked at as a whole, and acts which are in themselves legal lose that character when they become constituent elements of an unlawful scheme." Id. at 1020-21.

Appellant argues that the telephone conversation between Hoppe and Wilcox, and testimony from several members of the police department to the effect that Wilcox was known to have been bigoted against Indians, suffices. In the telephone conversation with Wilcox, Hoppe indicated dissatisfaction with Huesties' performance and explained that the "problem" with taking disciplinary action against him was that

he's married to an Indian girl and it makes it kind of tough because of that Indian association he can go to the Tribal Employment Right Office over here and raise all kinds of hell with us if he doesn't screw up so bad, you know, as to cause us to dismiss him.

CR 122 at 85. From this statement, it would be unreasonable for a jury to infer that Hoppe was seeking Wilcox's advice or assistance with respect to his desire to discipline or dismiss Huesties because Huesties is an Indian. Rather, the conversation indicated only that Hoppe wished to discipline or dismiss Huesties for other reasons (such as a bad attitude or untruthfulness), and had the belief that he would have some difficulty in doing so because Huesties is married to an Indian. Even assuming there is sufficient evidence of Wilcox's class-based invidiously discriminatory animus, there is none that Hoppe acted with, or harbored, racial or class-based animus. While co-conspirators are jointly liable for the acts of their co-conspirators, see, e.g., Beltz Travel Service v. Int'l Air Transport Assoc., 620 F.2d 1360, 1367 (9th Cir. 1980), plaintiff must establish evidence that the conspiracy, as opposed to merely a single member of the conspiracy, had the requisite animus. See, e.g., Taylor v. Federal Home Loan Bank Board, 661 F. Supp. 1333 (N.D. Tex. 1986) ("To satisfy [the requirement that plaintiff allege a conspiracy motivated by racial or class-based animus], it is not sufficient to allege a discriminatory animus against an individual."). Accordingly, the district court did not err in determining that no triable issue of fact remained with respect to this issue.

Huesties' due process claim rests on two grounds: (1) that he was entitled to a right to appeal under Umatilla Tribal Police General Order Sec. 310.010.45; and (2) that he was entitled to a pre-termination hearing under 25 C.F.R. Sec. 11.304(k) (3).

Section 310.010.45 of the Umatilla Tribal Police General Order provides that, " [i]f the Chief of Police sustains the complaint, the accused member shall be informed, in writing, of the right to appeal." Section 310.020.20 provides that: "A disciplinary appeal is a statement in writing from the member explaining the objection to the disciplinary action in question, in lieu of a signature. The appeal should be submitted to the Chief of Police." Huesties contends that he requested an appeal three times: his September 12 memorandum to Wilcox, his September 26 memorandum to Wilcox, and his October 15 memorandum to Hall.

None of these memoranda constitutes a request for appeal within the meaning of the regulations. Both the September 12 memorandum and the September 26 memorandum were written before the termination and concern disciplinary actions unrelated to the termination which lies at the heart of this case. The October 15 memorandum was founded on "Tribal Policy and Procedures Manual Sec. 5.6.3.," rather than the Tribal Police General Order, which is the applicable regulation; and it was directed to Ken Hall, rather than to Wilcox, as section 310.020.20 requires. Given Huesties' failure to comply with the regulations, there is no basis upon which to find a deprivation of process due under Sec. 310.010.45.

Section 11.304(k) provides that:

Prior to taking an adverse action against any employee, the contractor under Part 271 of this chapter or grantee under Part 272 of this chapter shall take the following steps:

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(3) Set a hearing date not less than 15 days after the employee has been given the written statement of allegation.

This regulation imposes a condition on the tribal law enforcement program's entitlement to receive funding from the Bureau of Indian Affairs. It contemplates termination of the contract unless the contractor complies; it does not create a right that is privately enforceable. In any event the written notice given to Huesties advised him of his right to a hearing within 15 days if he requested one. Having failed to do so, there was no denial of due process.

Huesties' claim against the United States is based on the BIA Superintendent's failure to notify the FBI regarding the allegations of Wilcox's alleged civil rights violations, as he was required to do under 25 C.F.R. Sec. 11.304(n) (3), and to perform various other ministerial duties prescribed in 25 C.F.R. Sec. 11.301-04. The government contends that the acts of the BIA Superintendent fall within the discretionary function exception.

Title 25 C.F.R. Sec. 11.304(n) (3) provides that:

If the chief law enforcement officer is accused of a civil rights violation, the report of the allegation shall be transmitted directly to the agency superintendent, who shall take the actions required by paragraph (n) (2) of this section.

Paragraph (n) (2) in turn provides that:

Not later than seven days after being notified of the allegation, the chief law enforcement officer shall take the following actions:

(i) Notify the Federal Bureau of Investigation, the agency superintendent or contracting officer's representative, and the tribal council.

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Huesties had no protectible interest in having the Superintendent refer the complaint to the FBI. The comments to the regulations explain that

[referral to the FBI] is needed because there have been recurrent reports that complaints of civil rights violations by Indian police are not fully and thoroughly investigated. These regulations authorize no one to conduct an investigation. They merely assure that those persons who do have authority to make investigations are promptly informed of civil rights violations complaints.

Whether Huesties may have benefited from having the allegations of misconduct referred to the FBI is speculative; there is no requirement that the FBI, once informed of a complaint, do anything. The record reflects no evidence that referral would have made any difference in the decision to terminate Huesties. Accordingly, the district court's dismissal of this claim was proper and it is unnecessary to address the discretionary function exception.

AFFIRMED.