State ex rel. Jacob v. Bohn
| Citation | 271 Neb. 424,711 N.W.2d 884 |
| Decision Date | 14 April 2006 |
| Docket Number | No. S-04-1410.,S-04-1410. |
| Parties | STATE of Nebraska ex rel. Steven M. JACOB, appellant, v. Suzanne E. BOHN et al., appellees. |
| Court | Supreme Court of Nebraska |
Steven M. Jacob, pro se.
Jon Bruning, Attorney General, and Maureen Hannon, for appellees.
Steven M. Jacob filed an action in the district court for Lancaster County against Suzanne E. Bohn, Harold Clarke, and Frank Hopkins (collectively the Appellees). Jacob was identified as an inmate at the Nebraska State Penitentiary, Bohn was identified as the mental health administrator for the Nebraska Department of Correctional Services (DCS), Clarke was identified as the director of DCS, and Hopkins was identified as the assistant director of DCS. Jacob sought a writ of mandamus requiring Bohn to provide him with copies of certain of his mental health records. Jacob also sought judgment against the Appellees pursuant to 42 U.S.C. § 1983 (2000) for having denied him access to his mental health records. Finally, Jacob sought a declaratory judgment requiring Clarke to promulgate and file certain administrative regulations. The district court granted the Appellees' motion to dismiss Jacob's action for failure to state a claim for relief. Jacob appeals. We affirm.
In 1991, Jacob underwent certain mental health evaluations conducted by DCS as a part of the inmate classification procedure. The records of such tests were maintained by Bohn as the mental health administrator for DCS. On August 7, 2003, Jacob made a written request of Bohn for a copy of such mental health records. Having received no response, on September 3, Jacob filed an informal grievance and was told that Bohn had received his request and was in the process of responding to it. Jacob subsequently filed grievances as part of DCS' formal appeal process. Jacob filed a "step one" grievance on September 17 and a "step two" grievance on September 26. In response to the step two grievance, Hopkins, on behalf of Clarke, stated on October 22 that "[y]our comments regarding [DCS'] policies for providing inmates with access to their mental health records are noted."
On November 20, 2003, Jacob filed his initial action for writ of mandamus in district court seeking an order requiring Bohn to provide him a copy of his mental health records. Jacob alleged that he was not being treated by any physician, psychologist, or mental health practitioner at the time he had requested his records on August 7 or at the time he filed his action. Jacob alleged that he had a right to a copy of his records pursuant to Neb. Rev.Stat. § 83-178 (Cum.Supp.2004), Neb. Rev.Stat. § 71-8403 (Reissue 2003), and DCS' administrative regulation No. 115.23 (AR 115.23), dated November 11, 2002. Jacob alleged that such statutes and regulation gave him a right to obtain a copy of his records, and he sought mandamus ordering Bohn to provide a copy of the requested records or to show cause why she should not provide such copy.
Jacob also included a "Second Cause of Action" pursuant to 42 U.S.C. § 1983 in which he sought judgment against the Appellees for violating his civil rights. Jacob alleged that § 71-8403(2) created in him a property interest in the requested records. He alleged that Bohn had violated his property interest and that Clarke and Hopkins had given tacit approval to her failure to provide the records to Jacob. For relief, Jacob sought nominal damages and costs of the action.
On April 5, 2004, Jacob sought leave to amend his complaint. He asserted that he had recently learned that AR 115.23 had not been promulgated or filed with the Secretary of State. He therefore sought leave to amend to set forth a cause of action for declaratory judgment in which he would seek a declaration that he had a right pursuant to Neb.Rev.Stat. §§ 83-4,111 and 83-4,112 (Reissue 1999) to have AR 115.23, titled "Mental Health Services," and administrative regulation No. 116.01 (AR 116.01), dated December 12, 1994, titled "Inmate Rights," promulgated. Jacob was given leave to amend. On May 7, 2004, Jacob filed an amended complaint including a third cause of action for declaratory judgment. This amended complaint is the operative complaint on appeal.
On May 21, 2004, the Appellees filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(1) and (6) (rev.2003). Following a hearing, on June 25, the court entered an order sustaining the motion on the basis that Jacob had failed to state a cause of action. The court determined that the language of § 83-178(2) made the release of mental health records of an inmate discretionary and that therefore, mandamus was not available to obtain such records. The court further determined that because there was no mandatory duty under § 71-8403(1) to provide mental health records, Jacob had no protected interest at stake and therefore no cause of action under 42 U.S.C. § 1983. Finally, the court determined that because AR 115.23 contained virtually the same language as § 71-8403(1), Jacob's request for a declaratory order requiring the promulgation of AR 115.23 and AR 116.01 was "pointless." The court therefore ordered that the Appellees' motion to dismiss be sustained, but gave Jacob 21 days to file a second amended complaint. Jacob did not file a second amended complaint. On November 4, the court entered an order dismissing Jacob's action. Jacob appeals the dismissal.
Jacob asserts that the district court erred in (1) finding that Bohn had no duty to provide him a copy of his mental health records, (2) finding that he had no protected interest in his mental health records and therefore no cause of action under 42 U.S.C. § 1983, and (3) dismissing his action for declaratory judgment.
A district court's grant of a motion to dismiss for failure to state a claim under rule 12(b)(6) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595, 694 N.W.2d 625 (2005).
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
Whether to entertain an action for declaratory judgment is within the discretion of the trial court. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
Jacob Was Not Entitled to Mandamus.
Jacob asserts that the district court erred in concluding that because Bohn had no absolute duty to provide him a copy of his mental health records, he was not entitled to mandamus. We determine that neither § 83-178(2), § 71-8403, nor AR 115.23 creates in Jacob a clear right to access to his mental health records or a clear duty on the part of Bohn to provide such records, and we therefore conclude that the district court did not err in determining that Jacob was not entitled to mandamus.
Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of the law. Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002). The general rule is that an act or duty is ministerial if there is an absolute duty to perform in a specified manner upon the existence of certain facts. Id. In a mandamus action, the party seeking mandamus has the burden of proof and must show clearly and conclusively that such party is entitled to the particular thing the relator asks and that the respondent is legally obligated to act. Id.
Jacob sought mandamus against Bohn. Jacob alleged that pursuant to §§ 83-178(2) and 71-8403 and AR 115.23, he had a right to obtain, and Bohn had a duty to provide to him, a copy of his mental health records. In order to obtain mandamus, Jacob needed to show clearly and conclusively that under such statutes and regulation or otherwise, he was entitled to access his mental health records and that Bohn was legally obligated to provide such records. Section 83-178(2) provides in part:
An inmate may obtain access to his or her medical records by request to the provider pursuant to sections 71-8401 to 71-8407 notwithstanding the fact that such medical records may be a part of his or her individual [DCS] file. [DCS] retains the authority to withhold mental health and psychological records of the inmate when appropriate.
Section 71-8403 provides in part:
(1) A patient may request a copy of the patient's medical records or may request to examine such records. Access to such records shall be provided upon request pursuant to sections 71-8401 to 71-8407, except that mental health medical records may be withheld if any treating physician, psychologist, or mental health practitioner determines in his or her professional opinion that release of the records would not be in the best interest of the patient unless the release is required by court order. The request and any authorization shall be in writing and shall be valid...
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