                                                                           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                           NOT FOR PUBLICATION                              JAN 10 2012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).

                                         -2-
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,


                                         -3-
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


                                          -4-
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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