Kruger v. Nebraska

• Decision Date: 07 April 2016
• Docket Number: No. 15–1427.,15–1427.
• Citation: 820 F.3d 295
• Parties: Michael–Ryan KRUGER, Special Administrator of the Estate of Andrea Kruger, Plaintiff–Appellant v. State of NEBRASKA; Robert Houston, Retired Director, Department of Correctional Services, in his official and individual capacities; Cameron White, Behavioral Health Administrator, Department of Correctional Services, in his official and individual capacities; Dr. Randy Kohl, in his official and individual capacities; Department of Corrections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

820 F.3d 295

Michael–Ryan KRUGER, Special Administrator of the Estate of Andrea Kruger, Plaintiff–Appellant

v.State of NEBRASKA; Robert Houston, Retired Director, Department of Correctional Services, in his official and individual capacities; Cameron White, Behavioral Health Administrator, Department of Correctional Services, in his official and individual capacities; Dr. Randy Kohl, in his official and individual capacities; Department of Corrections, Defendants–Appellees.

No. 15–1427.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 18, 2015.

Filed: April 7, 2016.

Rehearing and Rehearing En Banc Denied May 11, 2016.

James C. Zalewski, argued, Vincent M. Powers and Kathleen Marie Neary, on the brief, Lincoln, NE, for Plaintiff–Appellant.

David A. Lopez, AAG, argued, Ryan Post, AAG, on the brief, Lincoln, NE, for Defendants–Appellees.

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

RILEY, Chief Judge.

Nikko Jenkins was released from prison in July 2013 after serving ten and one-half years of a twenty-one-year sentence. About three weeks after his release, he killed four people in Omaha, Nebraska, including Andrea Kruger. After Andrea's death, her husband, Michael–Ryan Kruger, as special administrator for Andrea's estate, sued in the District Court of Douglas County, Nebraska, the State of Nebraska; the Department of Corrections (department); three department officials; Correct Care Solutions (CCS), a private contractor the department retained to provide prison psychiatric services to inmates including Jenkins; and CCS employee Dr. Natalie Baker. The department officials named were Robert Houston, the former department director; Cameron White, Ph.D., the department's Behavioral Health Administrator; and Dr. Randy Kohl, the department's Deputy Director of Health Services (collectively, department officials). In his second amended complaint, Kruger named only the State of Nebraska and the department officials.

Kruger alleged deliberate indifference, violation of Andrea's substantive due process rights under the Fourteenth Amendment to the United States Constitution, see 42 U.S.C. §§ 1983, 1988(a), and state law negligence claims under the Nebraska State Tort Claims Act (STCA), Neb.Rev.Stat. § 81–8,209 et seq. After the case was removed to federal court, see 28 U.S.C. §§ 1441, 1446, the district court¹ granted the state and department officials' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(3), (6).² Kruger appeals. We affirm.³

I. BACKGROUND ⁴

Kruger's complaint alleged “the State of Nebraska released Jenkins, a violent and dangerous criminal, from incarceration” before he had served his full term even though “Jenkins repeatedly exhibited signs of serious mental health issues.” According to Kruger, Dr. Baker evaluated Jenkins numerous times between 2009 and 2013, and Jenkins repeatedly told Dr. Baker about his delusional and violent thoughts. Jenkins informed Dr. Baker “he had been hearing the voice of an Egyptian god who told him to harm others” and “he often had violent thoughts, and fe[lt] he w[ould] hurt others when released.” Kruger also pled “Jenkins repeatedly told staff evaluators he did not want to be released into the community because he will kill people.” Less than six months before Jenkins's release, Dr. Baker reported Jenkins “had a mental illness” and he “was an imminent danger to hurt somebody.” She recommended a civil commitment. Jenkins's family, friends, and Jenkins himself made repeated requests for civil commitment to the Johnson County (Nebraska) Attorney. Jenkins stated to department employees “he wanted to be committed someplace to get mental help because he would kill people if he did not receive the mental help and was released.”

Kruger alleged “[s]ometime in spring of 2013, ... Houston gave White a list of inmates ... and told him to change all clinical recommendations from inpatient to outpatient treatment so that [the inmates] would be eligible for release from the Department.” According to Kruger, Jenkins was on this list of inmates, so “White changed the recommendation on Jenkins from inpatient to outpatient treatment, which accelerated his release from the Department.”

Kruger also alleged that in the months before Jenkins's release, the Johnson County Attorney and the State's Public Counsel were investigating whether to pursue having Jenkins civilly committed upon his release. During this time, department employees met with the Public Counsel to discuss Jenkins. Dr. Mark Weilage, the department's Assistant Behavioral Health Administrator, spoke by phone with the Deputy Johnson County Attorney about Jenkins. No defendants ever disclosed Dr. Baker's evaluation—which, according to Kruger, could have provided a medical basis for civil commitment—during the meeting with the Public Counsel, the phone call with the Deputy County Attorney, or at any other time.

Kruger charged the defendants with “acting with deliberate indifference to Andrea Kruger's constitutional rights” by

a. Failing to properly enforce, apply, interpret, calculate, implement and comply with the rules, regulations, policies, procedures and laws regarding the detainment, sentencing, detention, incarceration, commitment and release of inmates.

b. Failing to properly comply with rules, regulations, policies, procedures and/or laws with respect to “good time” credited to inmates for good behavior while incarcerated.

c. Failing to deduct and/or alter “good time” credit from an inmate's sentence after the inmate had exhibited violent and/or insubordinate conduct during the inmate's term of incarceration and/or engaged in other conduct, which violates established policies, procedures, and/or rules.

In support of his state law negligence claim against the state, Kruger alleged the defendants “had a duty to Andrea Kruger in that ... [t]he magnitude of the risk of harm to Andrea Kruger was great as Nikko Jenkins had informed employees, contractors, officers and/or agents of the ... State of Nebraska that he intended to commit murders.” Further, “[t]he State was the only entity that had the opportunity and ability to exercise care to protect Andrea Kruger by not releasing Nikko Jenkins,” and it was foreseeable Jenkins would harm Kruger if he were released.

The original defendants removed the case to federal court. After Kruger amended his complaint, the state and the department officials moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), (6). The district court granted the motion, deciding the state and the department officials in their official capacities were immune from suit and Kruger failed to state a claim. First, the district court rejected Kruger's assertion that the defendants waived their immunity defenses by removing the case to federal court. The district court then dismissed Kruger's § 1983 claims against the state and the department officials in their official capacities because suits against state officials in their official capacity are actually suits against the state and states are not “persons” who may be sued for money damages under § 1983. The district court dismissed Kruger's § 1983 claims against the department officials in their individual capacities because “Kruger failed to plead that Andrea [Kruger] was deprived of a right secured by the Constitution and laws of the United States,” as required to state a claim under § 1983.

The district court dismissed Kruger's state law claims against the department officials in their individual capacities because the challenged actions undisputedly were taken “solely within the scope of their employment,” which meant Kruger would have to comply with the STCA. See Bohl v. Buffalo County, 251 Neb. 492, 557 N.W.2d 668, 673 (1997). Finally, the district court dismissed Kruger's state law claims against the department officials in their official capacities because their actions fell within the discretionary function exception to the STCA's immunity waiver. See Neb.Rev.Stat. § 81–8,219(1). Kruger appeals.

II. DISCUSSION

We review de novo the district court's ruling on a motion to dismiss. See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933–34 (8th Cir.2012).

A. Section 1983 Claims

1. Waiver

First, we address Kruger's assertion “the defendants have waived the sovereign immunity defense by removing this case from state court.” Kruger asserts more generally that the defendants “waived any immunity defenses.” Kruger relies on Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), a case in which state officials removed the plaintiff's state and federal claims against them in their personal and official capacities to federal court. The state then argued it was immune from suit in federal court under the Eleventh Amendment even though “a state statute had waived sovereign immunity from state-law suits in state court.” Id. The Supreme Court rejected this argument, concluding a state may not remove a case to federal court and then attempt to assert immunity that would not have been available in state court. Id. at 619–20, 122 S.Ct. 1640. The Lapides court explained its holding was limited “to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings.” Id. at 617–18, 122 S.Ct. 1640. The Lapides court's decision itself does not necessarily apply to federal claims or state claims in which the state has not waived immunity in state courts. See id.

The fact that the defendants' removal of this case to federal court may have waived their Eleventh Amendment immunity from suit in federal court with respect to any state law claims for which the state had waived immunity in state court does not necessarily mean they waived their other immunities: sovereign immunity from state law claims for which the state has not waived immunity and qualified immunity from the § 1983 claims against the...