Glasgow v. Nebraska

• Citation: 819 F.3d 436
• Decision Date: 08 April 2016
• Docket Number: No. 15–1755.,15–1755.
• Parties: Velita GLASGOW, Special Administrator of the Estate of Curtis Bradford, Plaintiff–Appellant v. State of NEBRASKA, Department of Corrections; Robert Houston, Retired Director, Department of Corrections, in his official and individual capacities; Dr. Cameron White, Behavioral Health Administrator for the Department of Corrections, in his official and individual capacities; Correct Care Solutions; Dr. Randy Kohl, in his official and individual capacities; City of Omaha, John Doe Defendants 1–100, in their individual and official capacities; County of Douglas, John Doe Defendants 1–100, in their individual and official capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

819 F.3d 436

Velita GLASGOW, Special Administrator of the Estate of Curtis Bradford, Plaintiff–Appellant

v.State of NEBRASKA, Department of Corrections; Robert Houston, Retired Director, Department of Corrections, in his official and individual capacities; Dr. Cameron White, Behavioral Health Administrator for the Department of Corrections, in his official and individual capacities; Correct Care Solutions; Dr. Randy Kohl, in his official and individual capacities; City of Omaha, John Doe Defendants 1–100, in their individual and official capacities; County of Douglas, John Doe Defendants 1–100, in their individual and official capacities, Defendants–Appellees.

No. 15–1755.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 18, 2015.

Filed: April 8, 2016.

William R. Harris, Jr., argued, Timothy L. Ashford and Judith A. Wells, on the brief, Omaha, NE, for appellant.

Meghan M. Bothe, argued, Timothy K. Dolan, on the brief, Omaha, NE, for Appellees County of Douglas, John Doe Defendants 1–100.

David A. Lopez, AAG, argued, Ryan Post, AAG, on the brief, Lincoln, NE, for Appellees Houston, Kohl, White, State of Nebraska, Dept. of Corrections.

Jonathan J. Papik, argued, Omaha, NE, Andrew D. Strotman, on the brief, Lincoln, NE, for Appellee Correct Care Solutions.

Ryan J. Wiesen, argued, Omaha, NE, for Appellees City of Omaha, John Doe Defendants 1–100.

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

RILEY, Chief Judge.

Nikko Jenkins was released from prison on July 30, 2013, after serving ten and one-half years of a twenty-one-year sentence. In August 2013, he killed four people in Omaha, Nebraska, including Curtis Bradford. Following Bradford's death, his mother, Velita Glasgow, filed suit under 42 U.S.C. §§ 1981, 1983, and 1988 and state law against the State of Nebraska and several Department of Corrections (department) officials, including Robert Houston, the former director of the department; Cameron White, "the behavioral health administrator"; and Dr. Randy Kohl, the "Deputy Director of Health Services" (collectively, department officials). Glasgow also sued Douglas County and 100 John Does (county); the City of Omaha and 100 John Does (city); and Correct Care Solutions (CCS), a private contractor that provided psychiatric services to prisoners. Glasgow alleged, among other claims, violation of Bradford's substantive due process rights under the Fourteenth Amendment to the United States Constitution and state law negligence claims under the Nebraska State Tort Claims Act (STCA), Neb.Rev.Stat. § 81–8,209 et seq. The district court¹ granted the defendants' motions to dismiss Glasgow's claims, and Glasgow appeals. We affirm.²

I. BACKGROUND³

In her complaint, Glasgow alleged that Houston and White decided to release Jenkins from prison before Jenkins had served his full sentence even though they knew Jenkins was mentally ill and extremely dangerous. Glasgow pled that "[s]ometime in spring of 2013, Defendant Houston directed Defendant White ... to [r]educe the inpatient treatment program from 10 months to 6 month [sic]" and "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 Glasgow, 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."

Glasgow claimed this decision was contrary "to the established policies, practices or customs governing treatment and incarceration ... given Jenkins' consistent history of psychotic behavior and continuing efforts of trying to get himself committed to the Lincoln Regional Center for a mental health evaluation and treatment." Glasgow also cited letters Jenkins wrote while in prison "stating that if he was released he would kill."

Glasgow's complaint alleged the "Defendants ... act[ed] with deliberate indifference to Curtis Bradford's constitutional rights" because they

a. Fail[ed] 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. Fail[ed] 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. Fail[ed] 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 engagement in other conduct which violate[d] established policies, procedures and/or rules.

Glasgow also suggested "[t]he State of Nebraska by and through its employees, contractors[,] agents and officers had a duty to Curtis Bradford" because they knew Jenkins "intended to murder persons at random." According to Glasgow, "[b]ecause the State of Nebraska processed [sic] this knowledge and released Nikko Jenkins from custody, it assumed a duty to Curtis Bradford." Glasgow stated CCS "owed a duty to the citizens of Nebraska to correctly evaluate and treat all inmates under their care," and CCS's breach of this duty resulted in Bradford's death. Glasgow alleged the city and county and their respective employees were aware of the danger Jenkins presented and failed to prevent Jenkins's attack on Bradford.

In all, the various defendants filed four motions to dismiss, and the district court granted the motions. See Fed.R.Civ.P. 12(b)(1), (6). The district court dismissed Glasgow's claims against the county, the city, and CCS for failure to state a claim upon which relief could be granted because "the amended complaint is simply devoid of any plausible allegation against these defendants."

The district court also dismissed Glasgow's state and federal claims against the State of Nebraska and the department officials. It rejected Glasgow's argument the defendants waived their immunity defenses by removing the identical case Glasgow filed in state court to federal court, where the state case was dismissed as redundant. The district court dismissed Glasgow's § 1983 claims against the State of Nebraska and the department officials in their official capacities because those claims failed to state a claim under § 1983 and were barred by the Eleventh Amendment to the United States Constitution. The district court dismissed Glasgow's § 1983 claims against the department officials in their individual capacities because Glasgow "failed to plead that Bradford 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 Glasgow's state law claims against the department officials in their individual capacities because they were acting "solely within the scope of their employment" when the challenged conduct occurred, and thus relief against them was available, if at all, only in their official capacities under the STCA. Cf. Bohl v. Buffalo County, 251 Neb. 492, 557 N.W.2d 668, 673–74 (1997) (per curiam). The district court dismissed Glasgow's state law claims against the department officials in their official capacities because Glasgow withdrew the claims from the Nebraska Risk Manager before expiration of the statutorily-required six months. See Neb.Rev.Stat. § 81–8,213. The district court alternatively dismissed Glasgow's official-capacity claims insofar as they fell within the discretionary-function exception to the STCA's immunity waiver. See Neb.Rev.Stat. § 81–8,219(1). Finally, the district court determined Glasgow failed to state a claim for negligence because no legal duty was shown. See, e.g., Gaytan v. Wal–Mart, 289 Neb. 49, 853 N.W.2d 181, 192 (2014). Glasgow appeals.

II. DISCUSSION

"We review a district court's grant of a motion to dismiss de novo." Christiansen v. W. Branch Comm. Sch. Dist., 674 F.3d 927, 933–34 (8th Cir.2012).

A. Glasgow's Claims Against the City, the County, and CCS

We affirm the district court's dismissal of Glasgow's claims against the city, the county, and CCS. Glasgow forfeited any argument the district court's dismissal of her claims against these defendants was in error because she does not mention these defendants in her appeal brief. See, e.g., Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir.2008) ("Claims not raised in an opening brief are deemed waived.").⁴

B. Glasgow's Claims Against the Department Officials

As a preliminary matter, we reject Glasgow's assertion that "Appellees by removing the Appellant's state tort claims to District Court and alleging that it [sic] was identical to the federal claim have waived their Eleventh Amendment immunity." Glasgow brought identical suits in both federal and state court. The defendants removed the state case to federal court where the district court dismissed the state case as redundant. As the district court correctly explained when Glasgow argued waiver, the pending case was never removed, because it was originally brought in federal court. Therefore, there could be no forfeiture or waiver arising from removal.

1. Glasgow's § 1983 Claims

Glasgow argues "[t]he [d]istrict [c]ourt erred in dismissing the individual claims against [the department officials] under 42 U.S.C. § 1983, 1988(a)."⁵

An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was "clearly established" at the time of the challenged conduct.... [A] defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it.

Plumhoff v. Rickard, 572 U.S. ––––, ––––, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, ––––, 131 S.Ct. 2074,...