Hoekstra v. Pershing County Sheriffs Office

District Court, D. Nevada·Decided September 3, 2025·No. 3:24-cv-00392·Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 HANNAH HALE HOEKSTRA, Case No. 3:24-cv-00392-MMD-CSD

7 Plaintiff, ORDER v. 8 PERSHING COUNTY SHERIFF’S 9 OFFICE, et al.

10 Defendants.

11 12 I. SUMMARY 13 This action arises from an incident which occurred at the Burning Man event 14 (“Burning Man”) in the desert of northwestern Nevada in August 2022. (ECF No. 6 (First 15 Amended Complaint or “FAC”).) Plaintiff Hannah Hoekstra, who worked as a volunteer 16 nurse for Burning Man’s Emergency Services Department, brings federal and state claims 17 based on allegations that she was illegally searched and detained by two Pershing 18 County Sheriff’s Office Deputies (“State Defendants”1) and Bureau of Land Management 19 (“BLM”) Ranger P. Zoltovetz (“Ranger Zoltovetz” or “Defendant”)). Now, before the Court 20 is Ranger Zoltovetz’s motion to dismiss the claims against him or, in the alternative, for 21 partial summary judgment. (ECF Nos. 23, 24 (“Motion”).)2 For the reasons discussed 22 below, the Court grants Defendant’s motion to dismiss in part and denies it in part. The 23 Court denies Defendant’s alternative request for summary judgment as moot. 24 /// 25 /// 26

27 1State Defendants include Pershing County and Pershing County Sheriff’s Office Deputies Donna Robinson and Daniel Boyer. 28 2Plaintiff responded (ECF Nos. 37, 38), and Ranger Zoltovetz replied (ECF No. 2 The following facts are adapted from the FAC. Burning Man is a large-scale week- 3 long cultural and art event held annually in the Black Rock Desert in northwestern 4 Nevada. (ECF No. 6 at 3.) Between August 28, 2022 and September 5, 2022, 5 approximately 75,000 people traveled to the temporarily erected “Black Rock City” to 6 attend Burning Man. (Id.) 7 Burning Man has its own Emergency Services Department (“ESD”), which consists 8 of volunteer licensed medical personnel “including, but not limited to, doctors, nurses, and 9 medics,… firefighters, communications staff, licensed counselors, a dedicated Crisis 10 Intervention Team (“CIT”), and logistics and planning support teams.” (Id. at 4.) Plaintiff 11 is a registered nurse who served as a volunteer member of ESD and the dedicated CIT 12 in 2022. (Id.) State Defendants—Pershing County and Pershing County Sheriff’s Office 13 (“PCSO”) Deputies Donna Robinson and Daniel Boyer—filed an answer to the FAC. (ECF 14 No. 17.) Plaintiff also sues Ranger Zoltovetz,” who she alleges was “at all times…. a 15 ranger or law enforcement officer employed by the United States Department of the 16 Interior, Bureau of Land Management and/or otherwise acting on behalf of the Pershing 17 County Sheriff.3” (ECF No. 6 at 1 n. 1.) Hoekstra alleges the following. 18 On August 31, 2022, at approximately 6:00 p.m., while wearing a yellow shirt 19 emblazoned “Emergency Services,” Plaintiff “was paged to respond to a female Burning 20 Man participant who requested assistance and emotional support regarding a 21 discomforting encounter with a male Burning Man participant in the male participant’s 22 private tent.” (Id. at 4.) As Hoekstra was speaking with the female participant in the private 23 tent, Deputy Robinson—dressed in plain clothing and not in uniform—opened the tent 24

25 3Plaintiff alleges, in full, that, “Upon information and belief, Defendant P. Zoltovetz (“Ranger Zoltovetz”), at all times relevant hereto, is and was a resident of Pershing County 26 and/or the State of Nevada and, at all times relevant hereto, was employed by or otherwise acting as an agent of the United States Department of the Interior, Bureau of 27 Land Management (the “BLM”), as a law enforcement officer or agent and was acting under color of law and the authority of the federal government within the course and scope 28 of said employment or agency by the BLM and/or otherwise also acting as a de facto agent for the Pershing County Sheriff.” (ECF No. 6 at 2.) 2 herself; Deputy Robinson identified herself as a PCSO Deputy but did not provide her full 3 name. (Id.) In response to Deputy Robinson’s identification, the female patient visibly 4 indicated that she did not wish to speak with her. (Id.) Plaintiff “exited the private tent and 5 offered to debrief and explain the events to Deputy Robinson.” (Id.) Deputy Robinson 6 continued to stand in the private tent’s entryway near the female patient. Plaintiff told 7 Deputy Robinson that she was facilitating trauma-informed care and would make all 8 reasonable efforts to connect the female patient with Deputy Robinson if necessary. (Id.) 9 Deputy Robinson replied that the female patient would have to “tell me that herself on 10 [her body] camera.” (Id.) Plaintiff offered to discuss the incident further, away from the 11 female patient, but Deputy Robinson interjected that she “had been doing her own job for 12 twenty-eight years” and threatened to arrest Hoekstra “for obstruction of [her] 13 investigation.” (Id. at 5-6.) 14 After Hoekstra requested to speak with her own supervisor, Deputy Robinson 15 instructed Deputy Daniel Boyer to detain and handcuff Plaintiff. (Id.) Deputy Boyer 16 handcuffed Plaintiff “with her arms behind her back” and informed her that she was under 17 arrest for “obstruction of an investigation,” further remonstrating her that he would “take 18 [her] to the ground and tase [her] if she did not comply.” (Id. at 6.) Deputies Robinson and 19 Boyer both stated that Plaintiff was not under arrest but was being temporarily detained. 20 (Id. at 6-7.) Deputy Boyer then pulled Plaintiff by her right arm approximately 50 feet to a 21 locked Pershing County Sheriff’s Department pickup truck. (Id.) 22 On the way to the truck, Ranger Zoltovetz began to pull Hoekstra by her left arm. 23 (Id.) Deputy Boyer detained Plaintiff beside the truck, as he was unable to unlock it. 24 Plaintiff alleges that as she was being pulled away, the female patient exited the tent and 25 said, “What are you doing? That woman was helping me!” (Id.) She further alleges that 26 Deputy Robinson responded, “My name is Donna, and I was raped too,” to which the 27 female patient began screaming to the gathered crowd, “I wasn’t raped, I wasn’t raped!” 28 2 Boyer stated, “I’ll need [that video] for the prosecution [of Plaintiff].” (Id.) 3 While she was detained at the truck, Plaintiff asked Deputy Boyer if the handcuffs 4 could be loosened because they were cutting into her wrists. (Id.) Deputy Boyer 5 “ostensibly attempted to loosen the handcuffs” but, after Ranger Zoltovetz examined the 6 handcuffs, they were retightened. (Id. at 7.) The handcuffs were later repositioned to 7 handcuff Plaintiff’s arms in front of her. Ranger Zoltovetz removed Plaintiff’s belongings, 8 which were buckled around her waist and warned her that if she did not provide her home 9 address, she would face additional charges. (Id.) Ranger Zoltovetz also approached a 10 bystander and “pressured him to discontinue filming,” despite Plaintiff’s request that he 11 continue to film the arrest. (Id.) 12 While Plaintiff was detained, the ESD Administrative Chief arrived at the scene; 13 Deputy Robinson told them that Hoekstra had been arrested for “obstruction of their 14 investigation.” (Id.) When asked why Sheriff’s deputies were present when no request or 15 call had been made, Deputy Robinson responded that she “did not know how she had 16 been informed of the events and only wanted to give the female patient a victim’s rights 17 packet.” (Id.) However, Deputy Robinson did not have a victim’s rights packet. (Id.) 18 Hoekstra was detained for approximately 40 minutes before being released without 19 criminal charges or citations. (Id. at 7-8.) She alleges that, as a result of the incident, she 20 experienced pain in her right shoulder, arm, and wrist, along with bruising and numbness, 21 for which she sought medical treatment. (Id.

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3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 HANNAH HALE HOEKSTRA, Case No. 3:24-cv-00392-MMD-CSD

7 Plaintiff, ORDER v. 8 PERSHING COUNTY SHERIFF’S 9 OFFICE, et al.

10 Defendants.

25 5Defendant cites the MOU’s provisions stating, among other things, that PCSO has authority to enforce state and local laws on BLM-administered public lands and that 26 PCSO and BLM “mutually agree to coordinate, cooperate, and provide assistance during special events occurring on public lands within Pershing County.” (ECF No. 26 at 5-6.) 27 Defendant also states that the MOU was entered on April 27, 2017 and expired in April 2022—five years after its execution—and thus was not in effect at the time of the incident. 28 (Id.) 2 camera footage of the incident. (ECF No. 23.) 3 On a motion to dismiss, the Court may consider materials “incorporated by 4 reference” into the complaint and may take judicial notice of “matters of public record.” 5 Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). If the Court otherwise 6 considers materials outside of the pleadings, the motion to dismiss is converted into a 7 motion for summary judgment. See Fed. R. Civ. P. 12(d). Here, none of the extrinsic 8 sources cited by Zoltovetz appear to be expressly incorporated by reference into the FAC, 9 and Defendant makes no argument as to why they are the proper subjects of judicial 10 notice, even after Plaintiff raises the issue in her opposition. Thus, for purposes of 11 Defendant’s Rule 12 dismissal arguments, the Court finds it inappropriate to consider 12 these extrinsic documents and videos. 13 B. Claim 1 – Bivens Claim for Unreasonable Search and Seizure in 14 Violation of the Fourth Amendment 15 Defendant first argues that he cannot be held liable for unreasonable search and 16 seizure in violation of the Fourth Amendment, as alleged in the first claim, because no 17 implied cause of action exists under Bivens v. Six Unknown Fed. Narcotics Agents, 403 18 U.S. 388 (1971). (ECF No. 23 at 9-15.) In particular, Defendant asserts that Bivens does 19 not extend to claims against a BLM officer “who assisted local deputies enforcing state 20 laws on federal property.” (Id. at 13.) For the reasons explained below, the Court agrees 21 6Defendant cites to the section of the Plan providing that “[PCSO] and BLM law 22 enforcement will be operating under an integrated command structure during the 2022 [Burning Man] event,” and that, “During law enforcement incidents at the event, the 23 agency with primary jurisdiction over the incident will assume the role of the lead agency” with the other agency providing support. (ECF No. 23 at 6.) Defendant further points to 24 the Plan’s provisions explaining that PCSO is responsible for enforcing Nevada state laws on BLM lands, while BLM is responsible for enforcing federal laws. (Id.) Defendant goes 25 on to assert that Ranger Zoltovetz was part of an integrated patrol unit consisting of one PCSO deputy and one BLM ranger. (Id.) 26 7Defendant cites as “undisputed” the Burning Man website’s statement that law 27 enforcement at Burning Man “consists of [Bureau of Land Management (“BLM”)] Rangers, who enforce federal laws, and the Pershing County Sheriff’s Office, which enforces state 28 and local laws.” (ECF No. 23 at 3-4.) 2 incident alleged.8 3 As a preliminary matter, Plaintiff does not clearly delineate between State 4 Defendants and Zoltovetz—a federal agency employee—in asserting her constitutional 5 claims, alleging only that all Defendants acted “under color of law and within the course 6 and scope of their individual employment by or agency of the Pershing County Sheriff 7 and the BLM” to violate her Fourth Amendment rights. (ECF No. 6 at 9 (emphasis added).) 8 Plaintiff also alleges in broad terms at the outset of the FAC that the Court has authority 9 over this action under both Bivens and Section 1983 (id. at 3) but does not reference 10 either basis directly in support of the first claim. This arguable ambiguity on the face of 11 the FAC regarding the source of Zoltovetz’s authority during the incident is significant: it 12 is well established that, in general, only individual officers acting under color of federal 13 law are liable under Bivens, while those acting under color of state law may instead be 14 liable under 42 U.S.C. § 1983. See, e.g., Butz v. Economou, 438 U.S. 478 (1978). In rare 15 circumstances, however, courts may find that a federal officer has operated under 16 authority of state law, and thus is liable under Section 1983 rather than under Bivens. 17 See, e.g., Cabrera v. Martin, 973 F.2d 735, 742 (9th Cir. 1992) (“Although federal officials 18 acting under federal authority are generally not considered to be state actors, they may 19 be liable under § 1983 if they are found to have conspired with or acted in concert with 20 state officials to some substantial degree”); see also Lindke v. Freed, 601 U.S. 187, 199- 21 200 (2024) (quoting United States v. Classic, 313 U.S.,326 (1941)) (“[T]he ’[m]isuse of 22 power, possessed by virtue of state law,’ constitutes state action.”); see also Farag v. 23 United States, 587 F. Supp. 2d 436, 450 (E.D.N.Y. 2008) (finding that “the Court may— 24 and does—construe plaintiffs' § 1983 claims as Bivens claims” where a city police officer 25 was deputized as a federal agent). 26 /// 27

28 8The Court accordingly does not address Defendant’s argument that he is entitled to qualified immunity even if a Bivens claim is allowed. (ECF No. 23 at 13.) 2 considering that the FAC may also be read as an attempt to assert an alternative Section 3 1983 claim against him. Plaintiff does not appear to contest Defendant’s reading of the 4 first claim as limited to Bivens liability as it pertains to Zoltovetz, despite arguing at length 5 elsewhere in her opposition that material issues of fact remain regarding whether 6 Zoltovetz acted under color of state law and despite explicitly requesting the Court to treat 7 Zoltovetz as an agent of Pershing County at the pleading stage for her state law claims. 8 The Court will thus assume, for purposes of evaluating the FAC, that Plaintiff has not 9 attempted to raise a Section 1983 claim against Zoltovetz in the first claim for relief. 10 In Bivens, the Supreme Court recognized an implied damages cause of action for 11 plaintiffs injured by federal officers who violated the Fourth Amendment’s prohibition 12 against unreasonable searches and seizures, despite the absence of any statute 13 conferring this right. See Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 14 403 U.S. 388 (1971) (finding that a complaint alleging that Federal Bureau of Narcotics 15 agents, acting under color of federal authority, conducted a warrantless entry and search 16 of petitioner’s apartment without probable cause, stated federal cause of action under the 17 Fourth Amendment for damages); see also Ziglar v. Abbasi, 582 U.S. 120, 121 (2017); 18 Carlson v. Green, 446 U.S. 14, 18 (1980); W. Ctr. for Journalism v. Cederquist, 235 F.3d 19 1153, 1156 (9th Cir. 2000). 20 “The purpose of Bivens is to deter individual federal officers from committing 21 constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). Following 22 Bivens, the Supreme Court has recognized parallel non-statutory damages remedies in 23 only limited additional circumstances. See Wilkie v. Robbins, 551 U.S. 537, 549-50(2007) 24 (citing Davis v. Passman, 442 U.S. 228 (1979) (permitting a Bivens claim where a 25 congressional staff member alleged wrongful termination based on sex); Carlson v. 26 Green, 446 U.S. 14 (1980) (permitting a Bivens claim against a prison official for failure 27 to provide proper medical treatment in violation of the Eighth Amendment)); see also 28 Malesko, 534 U.S. at 70. The Supreme Court “ha[s] consistently refused to extend Bivens 2 Servs. Corp., 534 U.S. at 68. A Bivens context is new if it is “different in a meaningful way 3 from previous Bivens cases.” Abbasi, 582 U.S. at 139. 4 Courts apply a two-step process when considering whether a Bivens claim exists 5 in a new arena: “First we must determine[ ] whether there is any alternative, existing 6 process for protecting the plaintiffs' interests . . . If there is such an alternative remedy, 7 our inquiry stops. If there is not, we proceed to the next step and ask[ ] whether there 8 nevertheless are factors counseling hesitation before devising such an implied right of 9 action.” Mirmehdi v. United States, 689 F.3d 975, 982 (9th Cir. 2012) (internal citations 10 and quotation marks omitted); Mejia v. Miller, 61 F.4th 663, 667 (9th Cir. 2023). In Egbert 11 v. Boule, the Supreme Court clarified that the relevant question under the second step is 12 whether “special factors indicate that the Judiciary is at least arguably less equipped than 13 Congress to weigh the costs and benefits of allowing a damages action to proceed.” 596 14 U.S. 482, 483 (2022) (declining to extend Bivens recovery to a Fourth Amendment 15 excessive force claim or First Amendment retaliation claim against a border patrol officer); 16 see also Mejia, 61 F.4th at 667. 17 Defendant argues that this case constitutes a “new context” and that the Bivens 18 remedy should not be extended. See Abbasi, 582 U.S. at 139-40 (describing non- 19 exhaustive circumstances, which may make a context “new” for purposes of applying 20 Bivens, including but not limited to “the rank of the officers involved; the constitutional 21 right at issue; the generality or specificity of the official action; the extent of judicial 22 guidance as to how an officer should respond to the problem or emergency to be 23 confronted, [or] the statutory or other legal mandate under which the officer was 24 operating”). The Court ultimately agrees that Plaintiff has not shown that Bivens extends 25 to the circumstances alleged here. 26 It is true that, like in Bivens, itself, Plaintiff alleges that Ranger Zoltovetz—an 27 individual officer operating under color of federal law—has violated the Fourth 28 Amendment’s prohibition against unreasonable searches and seizures. See Bivens, 403 2 federal power [… and] [i]t guarantees to citizens of the United States the absolute right to 3 be free from unreasonable searches and seizures carried out by virtue of federal 4 authority.”); see also Abbasi, 582 U.S. at 121 (holding that the core applications of Bivens 5 are “well-settled law”). But, the Court cannot avoid the meaningful differences here in the 6 “statutory or [] legal mandate under which [Zoltovetz] was operating,” especially given the 7 Supreme Court’s recent aversion to even minor extensions of Bivens. See Abbasi, 582 8 U.S. at 139-40; see also Egbert, 596 U.S. at 483. In this case, Ranger Zoltovetz’s 9 mandate as a BLM officer working jointly with state law enforcement in the unique context 10 of the Burning Man event on public lands is different from the mandate of a federal 11 narcotics officer conducting a search of a private home. See Mejia, 61 F.4th at 668-69 12 (finding the plaintiff did “not point to any reason to believe . . . that BLM has the same 13 mandate as agencies enforcing federal anti-narcotics law [as in Bivens]”). 14 Indeed, both the Supreme Court and the Ninth Circuit have explicitly declined to 15 recognize a Bivens remedy in the context of agents of the Department of the Interior, 16 including BLM officers. See Wilkie, 551 U.S. 537 (declining to recognize a Bivens remedy 17 where a landowner brought Fifth Amendment due process claims against BLM 18 employees, reasoning that allowing Bivens claims to proceed would inappropriately invite 19 challenges to broad spheres of legitimate government action); see also Mejia, 61 F.4th at 20 668 (distinguishing Fourth Amendment excessive force claims involving a high-speed 21 chase by BLM officers resulting in injury from Bivens claims on the basis that “[t]he entire 22 incident occurred on public lands managed by the BLM and the National Park 23 Service…where Mejia had no expectation of privacy”). In Mejia, the Ninth Circuit noted 24 that special factors counseled against implying a cause of action because, “[f]or example, 25 a Fourth Amendment excessive force claims against BLM officers would have 26 systemwide consequences for BLM's mandate to maintain order on federal lands.” Id. at 27 28 2 remedies, some of which are also available to Plaintiff here. Id. (citing Report Misconduct, 3 U.S. Dep't of the Interior, Bureau of Land Mgmt., https://www.blm.gov/programs/public- 4 safety-and-fire/law-enforcement/report-misconduct (last visited Feb. 23, 2023); 43 C.F.R. 5 § 20.103 (2025) (requiring BLM employees to “report directly or through appropriate 6 channels to the Office of Inspector General or other appropriate authority matters coming 7 to their attention which do or may involve violations of law or regulation by employees”)). 8 In short, assuming that Ranger Zoltovetz was acting under the color of federal law 9 and given the narrowness of the Bivens remedy and the caution required of the Court in 10 extending it, the Court finds Plaintiff has not stated a valid Bivens claim. The Court thus 11 dismisses the first claim for relief against Zoltovetz. 12 C. Claim 2 – Unreasonable Search and Seizure Under the Nevada 13 Constitution 14 Defendant next argues that federal employees acting under the color of federal 15 law are insulated from state constitutional claims, and because “Ranger Zohovetz is a 16 federal employee who was acting under the color of federal law,” he is “therefore [] 17 insulated from state constitutional claims based on the legal principles of sovereign 18 immunity and supremacy.” (ECF No. 41 at 7.) Here, Plaintiff argues that she has plausibly 19 alleged that Defendant was, in fact, acting under color of state law as a “de facto agent 20 for the Pershing County Sheriff.” (ECF No. 6 at 2; ECF No. 37 at 9-11.) She argues that 21 whether or not Defendant was acting under color of federal or state law “is a factual 22 question, yet to be determined,” rendering a Rule 12 motion premature. (ECF No. 37 at 23 9.) 24 The FAC, itself, can be read to allege that Zoltovetz was acting under color of state 25 “and/or” federal law. (ECF No. 6 at 1-2, 10.) Defendant points to the Plan and MOU to 26 9However, it is also true that an individual may have greater or distinct Fourth 27 Amendment protections in a location where they have set up camp for an entire week in temporary “Black Rock City”, as compared to other types of public spaces. In this sense, 28 the Court recognizes that the facts alleged here may bear a closer resemblance to Bivens than to those at issue in Mejia. 2 BLM enforces federal laws. Based on these documents, Defendant concludes that 3 Ranger Zoltovetz thus necessarily acted as a federal employee under color of federal law. 4 But, even if the Court were to consider these extrinsic documents, Defendant’s argument 5 is circular. The fact that a BLM officer is responsible for enforcing federal laws is not 6 illuminating as to whether they were in fact doing so. Moreover, Defendant also takes the 7 contradictory position that he was merely assisting the State Defendants in their state law 8 enforcement duties. Defendant also cites to case law which is consistent with the 9 proposition that a federal actor can be liable for state constitutional violations to the extent 10 they were acting under color of state law. See Durham v. Rapp, 64 F. Supp. 3d 740, 746 11 (D. Md. 2014). And Plaintiff alleges that she was detained for “obstruction of [PCSO’s] 12 investigation,” which makes it more plausible that Zoltovetz could have acted under state 13 authority. 14 The Court thus agrees with Plaintiff that, construing the allegations in the FAC in 15 the light most favorable to her and drawing all reasonable inferences in her favor, she has 16 sufficiently alleged that Zoltovetz was acting under the color of state law by substantially 17 collaborating with Pershing County officials to effectuate their state law responsibilities.10 18 Accordingly, the Court denies the Motion as to the second claim for relief. 19 D. Claims 3 and 4 – False Imprisonment and Intentional Infliction of 20 Emotional Distress 21 Defendant next argues that the FTCA applies to Plaintiff’s third and fourth causes 22 of action for false imprisonment and intentional infliction of emotional distress, once again 23 insisting that Ranger Zoltovetz was acting in the scope of his federal employment during 24 the incident. (ECF No. 24 at 19-20.) Zoltovetz asserts that the Court lacks subject matter 25 jurisdiction because Plaintiff fails to plead that she exhausted her administrative 26 remedies, as required under the FTCA. (Id.) Notably, in her opposition, Plaintiff does not 27 10“[W]hether particular conduct constitutes action taken under the color of state 28 law[] must focus on the actual nature and character of that action.” Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997). 2 argues, however, that the FTCA’s administrative exhaustion requirement does not apply 3 here because she has alleged that Defendant was acting under color of state law, by the 4 agency of Pershing County, or, at a minimum, that “genuine and material questions of 5 fact” exist as to whether Zoltovetz was acting within the scope of his federal employment. 6 (Id. at 2, 11). Plaintiff thus appears to concede that she brings claims 3 and 4 against 7 Ranger Zoltovetz only to the extent his actions were taken under color of state law and 8 outside the scope of his federal employment. Narrowing the claims accordingly, the Court 9 finds that the FTCA does not apply; however, the Court also finds that Plaintiff fails to 10 state sufficient facts to support these claims under state law. 11 The FTCA, 28 U.S.C. §§ 2671-2680, waives sovereign immunity for certain tort 12 claims asserted against the United States. Under the FTCA, the United States is liable 13 for personal injuries caused by the negligent or wrongful acts or omissions of employees 14 of the United States, acting within the scope of their employment, “under circumstances 15 where the United States, if a private person, would be liable to the claimant in accordance 16 with the law of the place where the act or omission occurred.” Id. § 1346(b)(1); see also 17 Tekle v. United States, 511 F.3d 839, 852 (9th Cir. 2007) (“Even if the conduct entails 18 uniquely governmental functions, the court is to examine the liability of a private person 19 in analogous situations.”). The FTCA “is exclusive of any other civil action or proceeding 20 for money damages by reason of the same subject matter against the employee whose 21 act or omission gave rise to the claim.” Id. § 2679(b)(1). Although intentional tort claims 22 are generally subject to an exception from the FTCA’s general waiver of sovereign 23 immunity, the FTCA specifically extends to permit claims “arising . . . out of assault, 24 battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” 25 when such acts are committed by “investigative or federal law enforcement officers” 26 acting “within the scope of their employment.” Id. § 2680; see also Millbrook v. United 27 States, 569 U.S. 50, 52-53 (2013) (citations omitted) (defining “investigative or law 28 enforcement officer” as “any officer of the United States who is empowered by law to 2 The Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1733, et 3 seq., authorizes the Secretary of the Interior to contract with local law enforcement 4 officials to “carry out his law enforcement responsibilities with respect to the public lands 5 and their resources,” 43 U.S.C. § 1733(c)(1)-(2), and to “cooperate with the regulatory 6 and law enforcement officials of any State or political subdivision thereof in the 7 enforcement of the laws or ordinances of such State or subdivision,” id. § 1733(d). 8 Defendant argues that he was acting within the scope of his employment by the 9 BLM when he “assisted PCSO deputies who were enforcing state law on federal property, 10 as permitted under FLPMA and the Plan.” (ECF No. 23 at 20.) He further argues that his 11 actions were not “a truly independent venture” outside the scope of his role as a BLM 12 employee. The Court relies on “principles of respondeat superior of the state in which the 13 alleged tort occurred,” here in Nevada, to determine whether an employee acted within 14 the scope of their employment. McLachlan v. Bell, 261 F.3d 908, 911 (9th Cir. 2001); see 15 also Grantham v. Durant, 471 F. Supp. 2d 1069, 1074 (D. Nev. 2006) (“The Court reviews 16 FTCA scope of employment determinations according to the principles of respondeat 17 superior of the state in which the alleged tort occurred… Under Nevada law, whether an 18 employee was acting within the scope of his or her employment for the purposes of 19 respondeat superior liability generally is a question of fact.”); NRS § 41.745(1) (providing 20 that an employer is not liable for an employee’s intentional actions if the individual’s 21 actions are “a truly independent venture” and “not committed in the course of the very 22 task assigned” and were “not reasonably foreseeable”). 23 Plaintiff counters that factual disputes exist as to whether Defendant was acting in 24 his capacity as a federal or state employee, acknowledging that, with regard to claims 3 25 and 4, she is “asserting, …state tort claims against Federal Defendant (and not the United 26 States)” where Defendants were acting under the “agency of the Pershing County Sheriff 27 and the BLM.” (ECF No. 37 at 12.) She appears to concede that, to the extent Defendant 28 was in fact acting in his federal capacity, the provision of the FTCA that waives sovereign 2 apply: “Federal Defendant accurately notes that, under relevant law, BLM agents, like 3 himself, are not ‘investigative or law enforcement officers’ as they are not empowered ‘to 4 execute searches, to seize evidence, or to make arrests for violations of Federal law.” (Id. 5 at 11-12.) Thus, to the extent Plaintiff’s false imprisonment and intentional infliction of 6 emotional distress claims are based on Zoltovetz’s actions as a federal employee, the 7 FTCA’s requirement for administrative exhaustion applies, and she is precluded from 8 pursuing these claims because they have not been exhausted. 9 However, to the extent Plaintiff’s claims are cabined to Zoltovetz’s actions outside 10 of his federal role, Plaintiff has not alleged how those actions—where Zoltovetz, though 11 employed by the BLM, was purportedly acting as an agent of Pershing County Sheriff’s 12 Office—fell outside the scope of his role with the BLM in this particular context. As noted 13 above, Plaintiff appears to concede that she asserts the tort claims against Ranger 14 Zoltovetz only to the extent his actions were taken under color of state law. Indeed, as 15 Defendant points out, the FAC alleges that each Defendant “respectively act[ed] under 16 color of law and within the course and scope of their individual employment by or agency 17 of the Pershing County Sheriff and the BLMA.” (ECF No. 6 at 12 (¶67), 13 (¶72.) 18 Accordingly, the Court will dismiss claims 3 and 4 but will grant Plaintiff leave to amend 19 to the extent Plaintiff can allege facts to state a plausible claim for relief based on 20 Zoltovetz’s conduct outside the scope of his federal employment. 21 IV. CONCLUSION 22 The Court notes that the parties made several arguments and cited to several 23 cases not discussed above. The Court has reviewed these arguments and cases and 24 determines that they do not warrant discussion as they do not affect the outcome of the 25 issues before the Court. 26 It is therefore ordered that Defendant’s motion to dismiss (ECF No. 23) is granted 27 in part and denied in part. The Motion is denied as to claim 2 and granted as to claims 1, 28 3 and 4. The Court dismisses claim 1 with prejudice. The Court dismisses claims 3 and 4 1 || without prejudice to Plaintiff seeking to exhaust her administrative remedies under the 2 || FTCA but grants Plaintiff leave to amend to the extent she asserts these tort claims 3 || against Defendant outside the scope of his federal employment. Should Plaintiff choose 4 || to amend these claims, she must do so within 15 days. 5 It is further ordered that Defendants’ motion for summary judgment (ECF No. 24) 6 || is denied as moot. 7 8 DATED THIS 3" Day of September 2025. 9 10 11 □□□□□□□□□□□□□□□□□□□□□□□□ UNITED STATES DISTRICT JUDGE

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Hoekstra v. Pershing County Sheriffs Office, (D. Nev. 2025).

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