John Maxwell MONTIN, Plaintiff-Appellant v. Y. Scott MOORE, M.D.; Mario Scalora, Ph.D.; Mary Paine, Ph.D., Defendants-Appellees Stephen Paden, M.D., Defendant Lisa Woodward, Ph.D., Defendant-Appellee Chin Chung, M.D.; Marco Baquero, M.D.; Eugene Oliveto, M.D., Defendants Ann Evelyn, M.D.; Dinesh Karumanchi, M.D.; Rajeev Chaturvedi, M.D.; Joanne Murney, Ph.D.; Sherri Browning, Ph.D.; Lorrene Jurgens, Nurse Practitioner; Mindy Abel, Psy.D., Defendants-Appellees Cynthia Petersen, Nurse Practitioner; James Allison, Ph.D., Defendants Corrine McCoy, Program Manager; Jennifer Cimpl, Psy.D.; Shannon Black, Psy.D.; Zakaria Siddiqui, M.D., Defendants-Appellees Roberto Alves, Psy.D., Defendant Kathleen Barrett, Psy.D.; Klaus Hartmann, M.D., Defendants-Appellees
No. 16-1560
United States Court of Appeals, Eighth Circuit.
Submitted: October 25, 2016. Filed: January 19, 2017
846 F.3d 289
David A. Lopez, Assistant Attorney General, Attorney General‘s Office, Lincoln, NE, for Defendants-Appellees Y. Scott Moore, MD, Mary Paine, PH.D, Lisa Woodward, PH.D, Ann Evelyn, MD, Dinesh Karumanchi, MD, Rajeev Chaturvedi, MD, Joanne Murney, PH.D, Sherri Browning, PH.D, Lorrene Jurgens, Nurse Practitioner, Mindy Abel, Psy D, Corrine McCoy, Program Manager, Jennifer Cimpl, Psy D, Shannon Black, Psy D, Zakaria Siddiqui, MD, Kathleen Barrett, Psy D, Klaus Hartmann, MD.
John Wiltse, University of Nebraska, Office of Vice President & General Counsel, Lincoln, NE, for Mario Scalora, PH.D.
Jason W. Grams, Lamson & Dugan, Omaha, NE, for Defendants-Appellees Mario Scalora, PH.D, Mary Paine, PH.D, Ann Evelyn, MD, Jennifer Cimpl, Psy D, Kathleen Barrett, Psy D.
Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.
RILEY, Chief Judge.
John Maxwell Montin was committed to the Lincoln Regional Center (LRC) for a period of almost twenty years after a jury found him not responsible by reason of insanity. After his release, Montin brought suit in federal district court against various psychologists, psychiatrists, and other employees of the LRC, alleging defendants committed medical malpractice under Nebraska state law. Montin also alleged defendants violated his constitutional rights to be free from unnecessary confinement and free from retaliation for seeking access to courts. The district court1 dismissed Montin‘s state law malpractice claim as barred by sovereign immunity, and dismissed Montin‘s unnecessary confinement claim, ruling defendants were entitled to qualified immunity. Because we conclude Montin‘s state law malpractice claim was improperly filed in federal court under the Nebraska State Tort Claims Act, and defendants are entitled to qualified immunity on Montin‘s unnecessary confinement claim, we affirm.
I. BACKGROUND
A Nebraska state court committed Montin to the LRC on August 13, 1993, after a jury found Montin not responsible by reason of insanity on two felony charges. On July 16, 2013, almost twenty years after his initial commitment, that state court found Montin no longer dangerous to himself or others and ordered him unconditionally released. Defendants were all employees of the LRC during the time Montin was committed there and rendered professional healthcare services to Montin by conducting forensic evaluations, administering psychological testing, formulating and implementing treatment plans, and providing annual court reports.
In July 2014, Montin brought suit against defendants in federal court. Montin asserted, under
The district court granted defendants’ motion to dismiss the state law malpractice claim because the claim was barred by sovereign immunity and not waived by Nebraska under its State Tort Claims Act,
II. DISCUSSION
A. State Law Malpractice Claim
Montin alleged defendants committed medical malpractice under Nebraska state law. The district court dismissed this claim following defendants’
All defendants were state employees at the time of the events alleged in Montin‘s amended complaint. Sovereign immunity bars any suits against states and their employees in their official capacities. See Alden v. Maine, 527 U.S. 706, 712-13 (1999). Congress can abrogate sovereign immunity, like it has for claims filed pursuant to
Nebraska has waived sovereign immunity for a limited set of claims. See Nebraska State Tort Claims Act (STCA),
The district court, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any suit or tort claim. Suits shall be brought in the district court of the county in which the act or omission complained of occurred or, if the act or omission occurred outside the boundaries of the State of Nebraska, in the district court for Lancaster County.
As an initial matter, Montin asserts the state law malpractice claim is against defendants in their individual capacities and is thus not barred by sovereign immunity. Montin‘s amended complaint alleges all state claims are “against the listed defendants in their individual capacity only” and “Defendants [sic] actions and omissions were taken under color and authority of state law, but not in furtherance of the official policy, practice, and custom of the LRC.” (Emphasis added). All actions and omissions Montin pled—such as the failure to use appropriate forensic tools, the failure to score and interpret psychological tests correctly, and the submission of false or misleading reports—evidence defendants’ malpractice occurred within the scope of defendants’ employment as psychiatrists, psychologists, and employees of the LRC. Under Nebraska law, a state official acting within the scope of his or her employment at the time of an alleged tort must be sued in his or her official capacity, and the plaintiff must “comply with the requisites set out in the [STCA].” Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d 668, 673 (1997). Though Montin‘s amended complaint explicitly declares all claims are against defendants in their individual capacities, all the actions or omissions alleged occurred in the scope of defendants’
Montin‘s claim against defendants in their official capacities is barred unless Nebraska has waived sovereign immunity. See Seminole Tribe, 517 U.S. at 54-55. If Nebraska has waived its immunity, Montin must bring the claim within the bounds set forth by the Nebraska STCA. See Beers v. Arkansas, 61 U.S. 527, 529 (1857) (“[A]s this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted.“).
If we assume Nebraska waived its sovereign immunity in this instance, any waiver of that immunity does not extend to actions brought in federal court. See
B. Unnecessary Confinement Civil Rights Claim
Defendants additionally argue they are entitled to qualified immunity from the claim that they unnecessarily confined Montin.3 The district court dismissed the unnecessary confinement civil rights claim following defendants’ motions for judgment on the pleadings. We review a grant of a
A state official is immune from liability unless he or she “violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012). When determining whether a public official is entitled to qualified immunity, we examine (1) whether the official violated the plaintiff‘s constitutional or statutory right, and (2) whether that right was clearly established at the time of the violation. See LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013). “If the answer to either question is
Montin initially characterizes his unnecessary confinement as a due process violation. Then he contends the Eighth Amendment (through the Fourteenth Amendment) “deliberate indifference” standard and Nebraska‘s statutory commitment procedures create applicable “fundamental civil rights.” The Supreme Court has established the right to due process prevents the state from “constitutionally confin[ing] without more a nondangerous individual who is capable of surviving safely in freedom by himself,” O‘Connor v. Donaldson, 422 U.S. 563, 576 (1975), and that a “committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” Jones v. United States, 463 U.S. 354, 368 (1983). To show an individual is liable for unconstitutional confinement, a plaintiff needs to show the person “‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [the plaintiff], or... took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to [the plaintiff].‘” O‘Connor, 422 U.S. at 577 (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975)).
Taking the facts in the light most favorable to the nonmoving party, it is clear Montin only alleged defendants’ actions were negligent. Montin alleged a failure “to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his or her profession.” It is well-established “[c]onduct that is merely negligent or grossly negligent does not implicate the protections of the Due Process Clause.” Jackson v. Buckman, 756 F.3d 1060, 1067 (8th Cir. 2014); see also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (“To state a claim based on inadequate medical treatment... [t]he plaintiff must show more than negligence, more even than gross negligence.” (omission and alteration in original) (quoting Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006))). Though Montin alleged plaintiffs “were aware that their actions would result in the unnecessary and continued confinement of Montin... and that such unnecessary confinement was a violation of Montin‘s right to liberty,” Montin does not allege any facts to support this conclusion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.“). Instead, Montin alleged defendants “failed to determine that [Montin] was not mentally ill,” “persistently relied on a false factual belief that Montin had been found not responsible by reason of insanity of attempted murder,” and “relied upon inconsistent findings to manufacture or exaggerate a mental illness finding.” All of these actions are negligence or, at worst, gross negligence.
We note Montin‘s claims are distinguishable from the right outlined in O‘Connor because, there, the Supreme Court held there is “no constitutional basis for confining [mentally ill] persons involuntarily if they are dangerous to no one and can live safely in freedom.” O‘Connor, 422 U.S. at 575. The civil commitment procedures in O‘Connor allowed hospital staff to release patients without any review by a court, and the defendant testified he had no knowledge the plaintiff had ever committed a dangerous act. See id. at 567-68. That is materially differ-
Montin failed to allege action that violated his constitutional rights. The district court properly dismissed the unnecessary confinement claim.
C. Retaliation Civil Rights Claim
Montin also alleged defendants retaliated against him for seeking state and federal court review of his confinement. As defendants point out, “neither ‘retaliation’ nor any variant of that word appears anywhere in Montin‘s brief.” Because “[c]laims not raised in an opening brief are deemed waived,” Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008), and Montin failed to address the retaliation claim in his opening brief, Montin waived this issue. We thus affirm the district court‘s dismissal of Montin‘s retaliation claim.
III. CONCLUSION
We affirm the district court‘s dismissal, without prejudice, of the state law tort claim as improperly filed in federal court under Nebraska‘s STCA. In addition, we affirm the district court‘s dismissal of the unnecessary confinement claim because defendants are entitled to qualified immunity.