Case Information
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
* * *
HANNAH HALE HOEKSTRA, Case No. 3:24-cv-00392-MMD-CSD Plaintiff, ORDER v.
PERSHING COUNTY SHERIFF’S
OFFICE, et al.
Defendants. I. SUMMARY
This action arises from an incident which occurred at the Burning Man event (“Burning Man”) in the desert of northwestern Nevada in August 2022. (ECF No. 6 (First Amended Complaint or “FAC”).) Plaintiff Hannah Hoekstra, who worked as a volunteer nurse for Burning Man’s Emergency Services Department, brings federal and state claims based on allegations that she was illegally searched and detained by two Pershing County Sheriff’s Office Deputies (“State Defendants” [1] ) and Bureau of Land Management (“BLM”) Ranger P. Zoltovetz (“Ranger Zoltovetz” or “Defendant”)). Now, before the Court is Ranger Zoltovetz’s motion to dismiss the claims against him or, in the alternative, for partial summary judgment. (ECF Nos. 23, 24 (“Motion”).) [2] For the reasons discussed below, the Court grants Defendant’s motion to dismiss in part and denies it in part. The Court denies Defendant’s alternative request for summary judgment as moot.
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II. BACKGROUND
The following facts are adapted from the FAC. Burning Man is a large-scale week- long cultural and art event held annually in the Black Rock Desert in northwestern Nevada. (ECF No. 6 at 3.) Between August 28, 2022 and September 5, 2022, approximately 75,000 people traveled to the temporarily erected “Black Rock City” to attend Burning Man. ( Id .)
Burning Man has its own Emergency Services Department (“ESD”), which consists of volunteer licensed medical personnel “including, but not limited to, doctors, nurses, and medics,… firefighters, communications staff, licensed counselors, a dedicated Crisis Intervention Team (“CIT”), and logistics and planning support teams.” ( Id. at 4.) Plaintiff is a registered nurse who served as a volunteer member of ESD and the dedicated CIT in 2022. ( ) State Defendants—Pershing County and Pershing County Sheriff’s Office (“PCSO”) Deputies Donna Robinson and Daniel Boyer—filed an answer to the FAC. (ECF No. 17.) Plaintiff also sues Ranger Zoltovetz,” who she alleges was “at all times…. a ranger or law enforcement officer employed by the United States Department of the Interior, Bureau of Land Management and/or otherwise acting on behalf of the Pershing County Sheriff. ” (ECF No. 6 at 1 n. 1.) Hoekstra alleges the following.
On August 31, 2022, at approximately 6:00 p.m., while wearing a yellow shirt emblazoned “Emergency Services,” Plaintiff “was paged to respond to a female Burning Man participant who requested assistance and emotional support regarding a discomforting encounter with a male Burning Man participant in the male participant’s private tent.” ( Id. at 4.) As Hoekstra was speaking with the female participant in the private tent, Deputy Robinson—dressed in plain clothing and not in uniform—opened the tent uninvited and asked to come in. ( Id. at 5.) Plaintiff asked Deputy Robinson to identify herself; Deputy Robinson identified herself as a PCSO Deputy but did not provide her full name. ( Id. ) In response to Deputy Robinson’s identification, the female patient visibly indicated that she did not wish to speak with her. ( Id. ) Plaintiff “exited the private tent and offered to debrief and explain the events to Deputy Robinson.” ( Id. ) Deputy Robinson continued to stand in the private tent’s entryway near the female patient. Plaintiff told Deputy Robinson that she was facilitating trauma-informed care and would make all reasonable efforts to connect the female patient with Deputy Robinson if necessary. ( Id .) Deputy Robinson replied that the female patient would have to “tell me that herself on [her body] camera.” ( Id. ) Plaintiff offered to discuss the incident further, away from the female patient, but Deputy Robinson interjected that she “had been doing her own job for twenty-eight years” and threatened to arrest Hoekstra “for obstruction of [her] investigation.” ( Id. at 5-6.)
After Hoekstra requested to speak with her own supervisor, Deputy Robinson instructed Deputy Daniel Boyer to detain and handcuff Plaintiff. ( Id. ) Deputy Boyer handcuffed Plaintiff “with her arms behind her back” and informed her that she was under arrest for “obstruction of an investigation,” further remonstrating her that he would “take [her] to the ground and tase [her] if she did not comply.” ( Id. at 6.) Deputies Robinson and Boyer both stated that Plaintiff was not under arrest but was being temporarily detained. ( Id. at 6-7.) Deputy Boyer then pulled Plaintiff by her right arm approximately 50 feet to a locked Pershing County Sheriff’s Department pickup truck. ( Id. )
On the way to the truck, Ranger Zoltovetz began to pull Hoekstra by her left arm. ( Id. ) Deputy Boyer detained Plaintiff beside the truck, as he was unable to unlock it. Plaintiff alleges that as she was being pulled away, the female patient exited the tent and said, “What are you doing? That woman was helping me!” ( ) She further alleges that Deputy Robinson responded, “My name is Donna, and I was raped too,” to which the female patient began screaming to the gathered crowd, “I wasn’t raped, I wasn’t raped!” ( Id. ) While speaking to a bystander using a camera phone to film the incident, Deputy Boyer stated, “I’ll need [that video] for the prosecution [of Plaintiff].” ( Id. )
While she was detained at the truck, Plaintiff asked Deputy Boyer if the handcuffs could be loosened because they were cutting into her wrists. ( Id. ) Deputy Boyer “ostensibly attempted to loosen the handcuffs” but, after Ranger Zoltovetz examined the handcuffs, they were retightened. ( Id. at 7.) The handcuffs were later repositioned to handcuff Plaintiff’s arms in front of her. Ranger Zoltovetz removed Plaintiff’s belongings, which were buckled around her waist and warned her that if she did not provide her home address, she would face additional charges. ( Id. ) Ranger Zoltovetz also approached a bystander and “pressured him to discontinue filming,” despite Plaintiff’s request that he continue to film the arrest. ( Id. )
While Plaintiff was detained, the ESD Administrative Chief arrived at the scene; Deputy Robinson told them that Hoekstra had been arrested for “obstruction of their investigation.” ( Id. ) When asked why Sheriff’s deputies were present when no request or call had been made, Deputy Robinson responded that she “did not know how she had been informed of the events and only wanted to give the female patient a victim’s rights packet.” ( Id. ) However, Deputy Robinson did not have a victim’s rights packet. ( Id. )
Hoekstra was detained for approximately 40 minutes before being released without criminal charges or citations. ( Id. at 7-8.) She alleges that, as a result of the incident, she experienced pain in her right shoulder, arm, and wrist, along with bruising and numbness, for which she sought medical treatment. ( Id. at 8.) She also alleges that she has suffered mental and emotional distress and was subsequently diagnosed with post-traumatic stress disorder, for which she has received treatment and therapy. ( Id. )
Plaintiff brings four claims against all Defendants: (1) unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution; (2) unreasonable search and seizure in violation of the Nevada Constitution; (3) civil false imprisonment; and (4) intentional infliction of emotional distress. ( Id. at 8-14.) She seeks general and specific damages, as well as punitive damages and fees and costs. ( ) III. DISCUSSION
Ranger Zoltovetz now moves for dismissal under Federal Rules of Civil Procedure 12(b)(1) and (6), arguing that (1) Plaintiff’s first claim fails because there is no Bivens remedy available; (2) Plaintiff’s second claim fails because, as a federal agent, Zoltovetz cannot be held liable for a state constitutional violation; and (3) Plaintiff’s third and fourth claims fail because she did not exhaust her administrative remedies under the Federal Tort Claims Act (“FTCA”) before filing suit. [4] (ECF No. 23 at 1-2.) The Court addresses these arguments in turn.
A. Extrinsic Sources
Defendant cites several sources extrinsic to the FAC throughout his Motion, both in requesting dismissal under Rule 12 and in requesting partial summary judgment as to claims 3 and 4. These sources include (1) a Memorandum of Understanding (“MOU”) between BLM and PCSO [5] ; (2) a BLM and PCSO law enforcement operations plan (“Plan”) 1 [6] for the 2022 Burning Man event ; (3) the Burning Man organization website [7] ; and (4) body camera footage of the incident. (ECF No. 23.)
On a motion to dismiss, the Court may consider materials “incorporated by
reference” into the complaint and may take judicial notice of “matters of public record.”
Mack v. S. Bay Beer Distribs
.,
B. Claim 1 – Bivens Claim for Unreasonable Search and Seizure in Violation of the Fourth Amendment
Defendant first argues that he cannot be held liable for unreasonable search and seizure in violation of the Fourth Amendment, as alleged in the first claim, because no implied cause of action exists under Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971). (ECF No. 23 at 9-15.) In particular, Defendant asserts that Bivens does not extend to claims against a BLM officer “who assisted local deputies enforcing state laws on federal property.” ( Id. at 13.) For the reasons explained below, the Court agrees with Zoltovetz that Plaintiff fails to state a Bivens claim given the specific context of the incident alleged.
As a preliminary matter, Plaintiff does not clearly delineate between State
Defendants and Zoltovetz—a federal agency employee—in asserting her constitutional
claims, alleging only that
all
Defendants acted “under color of law and within the course
and scope of their individual employment by
or agency of
the Pershing County Sheriff
and
the BLM” to violate her Fourth Amendment rights. (ECF No. 6 at 9 (emphasis added).)
Plaintiff also alleges in broad terms at the outset of the FAC that the Court has authority
over this action under both
Bivens
and Section 1983 (
id.
at 3) but does not reference
either basis directly in support of the first claim. This arguable ambiguity on the face of
the FAC regarding the source of Zoltovetz’s authority during the incident is significant: it
is well established that, in general, only individual officers acting under color of federal law are liable under
Bivens
, while those acting under color of state law may instead be
liable under 42 U.S.C. § 1983.
See, e.g.
,
Butz v. Economou
,
///
Defendant argues that Plaintiff has failed to state a Bivens claim, without considering that the FAC may also be read as an attempt to assert an alternative Section 1983 claim against him. Plaintiff does not appear to contest Defendant’s reading of the first claim as limited to Bivens liability as it pertains to Zoltovetz, despite arguing at length elsewhere in her opposition that material issues of fact remain regarding whether Zoltovetz acted under color of state law and despite explicitly requesting the Court to treat Zoltovetz as an agent of Pershing County at the pleading stage for her state law claims. The Court will thus assume, for purposes of evaluating the FAC, that Plaintiff has not attempted to raise a Section 1983 claim against Zoltovetz in the first claim for relief.
In
Bivens
, the Supreme Court recognized an implied damages cause of action for
plaintiffs injured by federal officers who violated the Fourth Amendment’s prohibition
against unreasonable searches and seizures, despite the absence of any statute
conferring this right.
See Bivens v. Six Unknown Agents of Federal Bureau of Narcotics,
“The purpose of
Bivens
is to deter individual federal officers from committing
constitutional violations.”
Corr. Servs. Corp. v. Malesko
,
Courts apply a two-step process when considering whether a
Bivens
claim exists
in a new arena: “First we must determine[ ] whether there is any alternative, existing
process for protecting the plaintiffs' interests . . . If there is such an alternative remedy,
our inquiry stops. If there is not, we proceed to the next step and ask[ ] whether there
nevertheless are factors counseling hesitation before devising such an implied right of
action.”
Mirmehdi v. United States
,
Defendant argues that this case constitutes a “new context” and that the Bivens remedy should not be extended. See Abbasi , 582 U.S. at 139-40 (describing non- exhaustive circumstances, which may make a context “new” for purposes of applying Bivens , including but not limited to “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted, [or] the statutory or other legal mandate under which the officer was operating”). The Court ultimately agrees that Plaintiff has not shown that Bivens extends to the circumstances alleged here.
It is true that, like in
Bivens
, itself, Plaintiff alleges that Ranger Zoltovetz—an
individual officer operating under color of federal law—has violated the Fourth
Amendment’s prohibition against unreasonable searches and seizures.
See Bivens
, 403
U.S. at 392 (“[The] Fourth Amendment operates as a limitation upon the exercise of
federal power [… and] [i]t guarantees to citizens of the United States the absolute right to
be free from unreasonable searches and seizures carried out by virtue of federal
authority.”);
see also Abbasi
,
Indeed, both the Supreme Court and the Ninth Circuit have explicitly declined to
recognize a
Bivens
remedy in the context of agents of the Department of the Interior,
including BLM officers.
See Wilkie
,
In short, assuming that Ranger Zoltovetz was acting under the color of federal law and given the narrowness of the Bivens remedy and the caution required of the Court in extending it, the Court finds Plaintiff has not stated a valid Bivens claim. The Court thus dismisses the first claim for relief against Zoltovetz.
C. Claim 2 – Unreasonable Search and Seizure Under the Nevada Constitution
Defendant next argues that federal employees acting under the color of federal law are insulated from state constitutional claims, and because “Ranger Zohovetz is a federal employee who was acting under the color of federal law,” he is “therefore [] insulated from state constitutional claims based on the legal principles of sovereign immunity and supremacy.” (ECF No. 41 at 7.) Here, Plaintiff argues that she has plausibly alleged that Defendant was, in fact, acting under color of state law as a “ de facto agent for the Pershing County Sheriff.” (ECF No. 6 at 2; ECF No. 37 at 9-11.) She argues that whether or not Defendant was acting under color of federal or state law “is a factual question, yet to be determined,” rendering a Rule 12 motion premature. (ECF No. 37 at 9.)
The FAC, itself, can be read to allege that Zoltovetz was acting under color of state
“and/or” federal law. (ECF No. 6 at 1-2, 10.) Defendant points to the Plan and MOU to
argue that, at Burning Man, PCSO is responsible for enforcing state and local laws, while
BLM enforces federal laws. Based on these documents, Defendant concludes that
Ranger Zoltovetz thus necessarily acted as a federal employee under color of federal law.
But, even if the Court were to consider these extrinsic documents, Defendant’s argument
is circular. The fact that a BLM officer is responsible for enforcing federal laws is not
illuminating as to whether they were in fact doing so. Moreover, Defendant also takes the
contradictory position that he was merely assisting the State Defendants in their state law
enforcement duties. Defendant also cites to case law which is consistent with the
proposition that a federal actor can be liable for state constitutional violations to the extent
they were acting under color of state law.
See Durham v. Rapp
,
The Court thus agrees with Plaintiff that, construing the allegations in the FAC in the light most favorable to her and drawing all reasonable inferences in her favor, she has sufficiently alleged that Zoltovetz was acting under the color of state law by substantially collaborating with Pershing County officials to effectuate their state law responsibilities. Accordingly, the Court denies the Motion as to the second claim for relief.
D. Claims 3 and 4 – False Imprisonment and Intentional Infliction of Emotional Distress
Defendant next argues that the FTCA applies to Plaintiff’s third and fourth causes of action for false imprisonment and intentional infliction of emotional distress, once again insisting that Ranger Zoltovetz was acting in the scope of his federal employment during the incident. (ECF No. 24 at 19-20.) Zoltovetz asserts that the Court lacks subject matter jurisdiction because Plaintiff fails to plead that she exhausted her administrative remedies, as required under the FTCA. ( ) Notably, in her opposition, Plaintiff does not dispute that no administrative claim was filed under the FTCA. (ECF No. 38 at 2.) She argues, however, that the FTCA’s administrative exhaustion requirement does not apply here because she has alleged that Defendant was acting under color of state law, by the agency of Pershing County, or, at a minimum, that “genuine and material questions of fact” exist as to whether Zoltovetz was acting within the scope of his federal employment. ( Id. at 2, 11). Plaintiff thus appears to concede that she brings claims 3 and 4 against Ranger Zoltovetz only to the extent his actions were taken under color of state law and outside the scope of his federal employment. Narrowing the claims accordingly, the Court finds that the FTCA does not apply; however, the Court also finds that Plaintiff fails to state sufficient facts to support these claims under state law.
The FTCA, 28 U.S.C. §§ 2671-2680, waives sovereign immunity for certain tort
claims asserted against the United States. Under the FTCA, the United States is liable
for personal injuries caused by the negligent or wrongful acts or omissions of employees
of the United States, acting within the scope of their employment, “under circumstances
where the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.”
Id.
§ 1346(b)(1);
see also
Tekle v. United States
,
Defendant argues that he was acting within the scope of his employment by the
BLM when he “assisted PCSO deputies who were enforcing state law on federal property,
as permitted under FLPMA and the Plan.” (ECF No. 23 at 20.) He further argues that his
actions were not “a truly independent venture” outside the scope of his role as a BLM
employee. The Court relies on “principles of respondeat superior of the state in which the
alleged tort occurred,” here in Nevada, to determine whether an employee acted within
the scope of their employment.
McLachlan v. Bell,
Plaintiff counters that factual disputes exist as to whether Defendant was acting in his capacity as a federal or state employee, acknowledging that, with regard to claims 3 and 4, she is “asserting, …state tort claims against Federal Defendant (and not the United States)” where Defendants were acting under the “agency of the Pershing County Sheriff and the BLM.” (ECF No. 37 at 12.) She appears to concede that, to the extent Defendant was in fact acting in his federal capacity, the provision of the FTCA that waives sovereign immunity for intentional tort actions against federal law enforcement officers does not apply: “Federal Defendant accurately notes that, under relevant law, BLM agents, like himself, are not ‘investigative or law enforcement officers’ as they are not empowered ‘to execute searches, to seize evidence, or to make arrests for violations of Federal law.” ( Id. at 11-12.) Thus, to the extent Plaintiff’s false imprisonment and intentional infliction of emotional distress claims are based on Zoltovetz’s actions as a federal employee, the FTCA’s requirement for administrative exhaustion applies, and she is precluded from pursuing these claims because they have not been exhausted.
However, to the extent Plaintiff’s claims are cabined to Zoltovetz’s actions outside of his federal role, Plaintiff has not alleged how those actions—where Zoltovetz, though employed by the BLM, was purportedly acting as an agent of Pershing County Sheriff’s Office—fell outside the scope of his role with the BLM in this particular context. As noted above, Plaintiff appears to concede that she asserts the tort claims against Ranger Zoltovetz only to the extent his actions were taken under color of state law. Indeed, as Defendant points out, the FAC alleges that each Defendant “respectively act[ed] under color of law and within the course and scope of their individual employment by or agency of the Pershing County Sheriff and the BLMA.” (ECF No. 6 at 12 (¶67), 13 (¶72.) Accordingly, the Court will dismiss claims 3 and 4 but will grant Plaintiff leave to amend to the extent Plaintiff can allege facts to state a plausible claim for relief based on Zoltovetz’s conduct outside the scope of his federal employment.
IV. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.
It is therefore ordered that Defendant’s motion to dismiss (ECF No. 23) is granted in part and denied in part. The Motion is denied as to claim 2 and granted as to claims 1, 3 and 4. The Court dismisses claim 1 with prejudice. The Court dismisses claims 3 and 4 without prejudice to Plaintiff seeking to exhaust her administrative remedies under the FTCA but grants Plaintiff leave to amend to the extent she asserts these tort claims against Defendant outside the scope of his federal employment. Should Plaintiff choose to amend these claims, she must do so within 15 days.
It is further ordered that Defendants’ motion for summary judgment (ECF No. 24) is denied as moot.
DATED THIS 3 rd Day of September 2025.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
Notes
[1] State Defendants include Pershing County and Pershing County Sheriff’s Office Deputies Donna Robinson and Daniel Boyer.
[2] Plaintiff responded (ECF Nos. 37, 38), and Ranger Zoltovetz replied (ECF No. 41).
[3] Plaintiff 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 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 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 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.)
[4] Because the Court grants dismissal of the third and fourth claims, it denies as moot Defendant’s motion for summary judgment as to the merits of these—that there is no genuine dispute of material fact suggesting that Plaintiff could be entitled to relief for false imprisonment or intentional infliction of emotional distress.
[5] Defendant 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 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.) 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. ( )
[6] Defendant cites to the section of the Plan providing that “[PCSO] and BLM law 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 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 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 on to assert that Ranger Zoltovetz was part of an integrated patrol unit consisting of one PCSO deputy and one BLM ranger. ( )
[7] Defendant 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 and local laws.” (ECF No. 23 at 3-4.)
[8] The 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 . )
[9] However, it is also true that an individual may have greater or distinct Fourth 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, the Court recognizes that the facts alleged here may bear a closer resemblance to Bivens than to those at issue in Mejia .
[10] “[W]hether particular conduct constitutes action taken under the color of state
law[] must focus on the actual nature and character of that action.”
Strickland v. Shalala
,