Michael-Ryan Kruger v. State of Nebraska

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-1427

___________________________

Michael-Ryan Kruger, Special Administrator of the Estate of Andrea Kruger

lllllllllllllllllllll 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

lllllllllllllllllllll Defendants - Appellees

____________

Appeal from United States District Court

for the District of Nebraska - Lincoln

____________

Submitted: November 18, 2015

Filed: April 7, 2016

____________

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

1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska.

2

The district court referenced Rule 12(b)(3), a venue clause; however, we

believe the district court meant Rule 12(b)(1).

3

We have jurisdiction pursuant to 28 U.S.C. § 1291.

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I. BACKGROUND4

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.”

4

Because this appeal arises from dismissals under Federal Rule of Civil

Procedure 12(b)(1), (6), we take our “facts” from Kruger’s complaint allegations to

determine if Kruger has alleged “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

also Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009).

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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

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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, 557 N.W.2d 668, 673

(Neb. 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.

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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

(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. 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. 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 department officials in their individual capacities.

Even if the state waived its Eleventh Amendment immunity, the defendants cannot

be sued for money damages under § 1983 because claims against state officials in

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their official capacities are really suits against the state and a state is not a person for

purposes of a claim for money damages under § 1983. Id. at 617; see also, e.g., Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66, 71 (1989). (“The Eleventh

Amendment bars . . . suits [against States for alleged deprivations of civil liberties]

unless the State has waived its immunity . . . . [A] suit against a state official in his

or her official capacity . . . is no different from a suit against the State itself.”). To the

extent Kruger attempts to appeal the dismissal of his § 1983 damage claims against

the state and the department officials in their official capacities, we affirm the district

court’s dismissal of these claims.

2. Section 1983 Claims—Department Officials’ Individual

Capacities

Kruger next contends “the individual defendants did not have qualified

immunity [from Kruger’s § 1983 claims] in their personal capacities.”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 (2014) (quoting

Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2080 (2001)). Kruger claims

he met this test because “[a]t this stage of the proceedings, all allegations in the

5

In his reply brief, Kruger briefly mentions “[s]ince Defendants have failed to

file an Answer with respect to [their qualified-immunity] claims, the Court was

premature in dismissing the Complaint.” We do not consider this argument because

Kruger did not raise it in his opening brief. See Barham v. Reliance Standard Life

Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006).

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Second Amended Complaint must be taken as true. Kruger pled that [Andrea] had

the constitutional right to freely associate and travel about the City of Omaha, and to

not be deprived of that liberty interest by State actions.”

As the district court explained, this is incorrect. Although the facts alleged in

the complaint must be taken as true at this stage of the proceedings, they still must

plausibly state a claim for relief. See Bell Atl. Corp., 550 U.S. at 555-56. The district

court was not required to take as true the dubious legal conclusions that there are

constitutional rights to “freely associate and travel about the City of Omaha” which

are “‘clearly established’” and of which “any reasonable official” would have been

aware. Plumhoff, 572 U.S. at ___, 134 S. Ct. at 2023 (quoting al-Kidd, 563 U.S. at

___, 131 S. Ct. at 2074).

Kruger proclaims “the State had a duty to the public at large to not release a

known and violent criminal.” In fact, “there is no general substantive due process

right to be protected against the release of criminals from confinement, even if that

release violates state law.” Lovins v. Lee, 53 F.3d 1208, 1209 (11th Cir. 1995).

Kruger’s proclaimed duty is not clearly established.

There are two exceptions, neither of which applies here. First, the special

relationship exception applies to limited circumstances where “the Constitution

imposes upon the State affirmative duties of care and protection with respect to

particular individuals.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.

189, 197-99 (1989) (emphasis added). This includes the duty “to provide adequate

medical care to incarcerated prisoners” and “to provide involuntarily committed

mental patients with such services as are necessary to ensure their ‘reasonable safety’

from themselves and others.” Id. at 198-99 (quoting Youngberg v. Romeo, 457 U.S.

307, 324 (1982)). DeShaney illustrates the narrow reach of this exception. See id.

There, the Supreme Court rejected a § 1983 claim by a boy who alleged the county

social services department knew he had been hospitalized repeatedly for suspicious

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injuries but took no action to protect him from his abusive father. Id. at 191-94. In

that case, the Supreme Court reasoned,

nothing in the language of the Due Process Clause itself requires the

State to protect the life, liberty, and property of its citizens against

invasion by private actors. The Clause is phrased as a limitation on the

State’s power to act, not as a guarantee of certain minimal levels of

safety and security.

Id. at 195.

The second exception is “the state-created-danger” exception. This exception

would apply if Kruger showed:

(1) that [Andrea] was a member of “a limited, precisely definable

group,” (2) that the [defendants’] conduct put her at a “significant risk

of serious, immediate, and proximate harm,” (3) that the risk was

“obvious or known” to the [defendants], (4) that the [defendants] “acted

recklessly in conscious disregard of the risk,” and (5) that in total, the

[defendants’] conduct “shocks the conscience.”

See Fields v. Abbott, 652 F.3d 886, 891 (8th Cir. 2011) (quoting Hart v. City of Little

Rock, 432 F.3d 801, 805 (8th Cir. 2005)). The district court found this exception did

not apply because “Andrea was not a member of a limited, precisely definable group.”

Id. We agree with the district court’s conclusion that “[m]embership in the general

public” does not suffice.

Kruger asks us to “reconsider the state-created-danger doctrine,” citing our

decision in Freeman v. Ferguson, which involved a § 1983 claim by the estate of a

mother and daughter who were murdered by the mother’s estranged husband, despite

an active restraining order. See Freeman v. Ferguson, 911 F.2d 52, 53-54 (8th Cir.

1990). In that case, the police allegedly did not respond to the victims’ reports of

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harassment because the police chief was friends with the perpetrator. Id. at 53-54.

We reversed the district court’s order granting a motion to dismiss to give the

administrator of the decedents’ estates “an opportunity to attempt to amend her

complaint” in light of the DeShaney opinion, which had been announced only the day

before the motion to dismiss was granted. Id. at 54. We pondered whether the

analysis in DeShaney “establishe[d] the possibility that a constitutional duty to

protect an individual against private violence may exist in a non-custodial setting if

the state has taken affirmative action which increases the individual’s danger of, or

vulnerability to, such violence beyond the level it would have been at absent state

action.” Id. at 55.

The allegation here that the defendants increased the danger to the general

public distinguishes this case from Freeman. See, e.g., Davis v. Fulton County, 90

F.3d 1346, 1351-52 (8th Cir. 1996) (determining that duty jailer did not create a

danger particular to an elderly shopkeeper who worked near the jail when the jailer

permitted a pretrial detainee to go outside the jail to perform chores and the detainee

raped the shopkeeper). In Freeman, the police allegedly deliberately ignored reports

from two individuals who reported a danger from domestic violence that was specific

to them. Freeman, 911 F.2d at 53-55. Freeman does not require we reverse the

district court’s order granting the defendants’ motion to dismiss Kruger’s § 1983

claims against the department officials in their individual capacities.

B. State Law Negligence Claims

1. Negligence Claims—Department Officials’ Individual

Capacities

Kruger seems to have abandoned his state law claims against the department

officials in their individual capacities. The district court correctly dismissed these

claims because the department officials’ actions were taken while they were acting

in the scope of their employment, a fact Kruger himself pled. The STCA limits

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Kruger to proceeding against the department officials in their official capacities. See

Bohl, 557 N.W.2d at 673; Neb. Rev. Stat. § 81-8,210(4).

2. Negligence Claims—Department Officials’ Official Capacities

a. STCA Discretionary Function Exception

The district court dismissed Kruger’s state law claims against the department

officials in their official capacities upon concluding they did not fall within the

STCA’s limited sovereign immunity waiver. See Neb. Rev. Stat. § 81-8,219(1). The

district court followed the defendants’ arguments that Kruger did not allege the

department officials “had no discretion (1) in failing to grant or withhold Jenkins’

good time credits, or (2) in declining to pursue a civil commitment of Jenkins.”

The discretionary function provision of the STCA provides:

The State Tort Claims Act shall not apply to . . . [a]ny claim based upon

an act or omission of an employee of the state, exercising due care, in

the execution of a statute, rule, or regulation . . . or based upon the

exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a state agency or an

employee of the state, whether or not the discretion is abused.

Neb. Rev. Stat. § 81-8,219(1) (emphasis added). “[P]rotected under the

[STCA] . . . is the discretion of a governmental executive or administrator to act

according to one’s judgment of the best course to be taken. . . . [D]iscretion includes

more than the initiation of programs and activities” and “includes determinations or

judgments made in establishing plans, specifications, or schedules of operations.”

Jasa ex rel. Jasa v. Douglas County, 510 N.W.2d 281, 288 (Neb. 1994).

The discretionary function exception “extends only to the basic policy

decisions made in governmental activity, and not to ministerial activities

implementing such policy decisions. . . . [T]he state is liable for negligence of its

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employees at the operational level, where there is no room for policy judgment.” Id.

Distinguishing a ministerial from a discretionary function involves a two-step inquiry.

Id. at 289. First, does the conduct “involve[] an element of judgment or choice” or

does a “statute, regulation, or policy specifically prescribe[] a course of action for an

employee to follow”? Id. Second, if “the challenged conduct involves an element of

judgment” is it “the kind that the discretionary function exception was designed to

shield”? Id.

i. Discharge Date Calculation

The district court concluded the department officials’ calculation of Jenkins’s

release date was a discretionary function because Nebraska statute § 83-1,107

provides that good time6 “may be forfeited, withheld, and restored by the chief

executive officer of the facility with the approval of the director after the offender has

been notified regarding the charges of misconduct.” Neb. Rev. Stat. § 83-1,107(3).

The district court, relying on Jasa, 510 N.W.2d at 291-92, decided the use of the word

“may” indicated that decisions about good time were discretionary and therefore the

department officials were immune.

On appeal, Kruger asserts his claim should not have been dismissed because

he pled the defendants made an arithmetical error in calculating Jenkins’s release

date, which is a non-discretionary function. Kruger argues he alleged a mathematical

error by pleading that the state “failed to properly calculate and/or apply ‘good

time.’” Kruger maintains “a defendant must serve the mandatory minium [sic]

sentence plus ½ of the remaining minimum sentence before becoming eligible for

parole.” See State v. Kinser, 811 N.W.2d 227, 234 (Neb. 2012) (declaring “good time

credit would not reduce the . . . mandatory minimum portion of [the defendant’s]

sentence”). “[G]ood time credit applies only after the mandatory minimum has been

6

“Good time means any reduction of sentence granted pursuant to sections 83-

1,107 and 83-1,108,” which includes automatic reductions and reductions for good

behavior. Neb. Rev. Stat. §§ 83-170, 83-1,107, 83-1,108.

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served” in part because the good time statute was intended “to ensure that no one

would reach mandatory discharge before reaching parole eligibility.” State v.

Castillas, 826 N.W.2d 255, 267 (Neb. 2013), disapproved on other grounds, State v.

Lantz, 861 N.W.2d 728, 763 (Neb. 2015). Jenkins may have been released too early

in violation of the Nebraska Supreme Court directive in Castillas.7 See id. However,

it is impossible to determine based on the facts Kruger pled. His complaint alleged:

While Jenkins had been sentenced to serve 21 years for his crimes, he

was released from prison after serving 10 and ½ years. The State of

Nebraska failed to properly calculate and/or apply “good time” for

Jenkins in ordering his release on July 30, 2013.

Kruger did not plead (1) what crimes Jenkins was convicted of, (2) whether

those crimes carried mandatory minimum sentences, (3) what those sentences were,

or (4) when Jenkins should have been eligible for release. Without this information,

there is no way to evaluate the plausibility of whether a mathematical error occurred.

Even if Kruger is correct in asserting that the discretionary function exception does

not apply to mathematical sentence calculations, we conclude Kruger failed to plead

facts stating a plausible claim for relief. See Bell Atl. Corp., 550 U.S. at 555-56.

ii. Psychiatric Report and Civil Commitment

Decisions

Second, the district court determined the decision not to seek civil commitment

for Jenkins was a discretionary function, citing Nebraska law providing:

Any person who believes that another person is mentally ill and

dangerous may communicate such belief to the county attorney . . . . If

7

This problem was not unique to Jenkins. A special investigative committee

reported that over 300 inmates were released too early because the department failed

to comply with the Castillas decision. See Nebraska Department of Correctional

Services Special Investigative Committee Report to the Legislature 46-51 (Dec. 15,

2014).

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the county attorney concurs that such person is mentally ill and

dangerous and that neither voluntary hospitalization nor other treatment

alternatives less restrictive of the subject’s liberty than inpatient or

outpatient treatment ordered by a mental health board is available or

would suffice to prevent the harm described in section 71-908, he or she

shall file a petition as provided in this section.

Neb. Rev. Stat. § 71-921(1) (emphasis added).

On appeal, Kruger asserts the department officials had a mandatory duty to

provide Dr. Baker’s psychiatric evaluation of Jenkins to the Johnson County Attorney

and the Public Counsel, thus making this duty a non-discretionary function. Kruger’s

argument that the department officials had a mandatory duty to provide the report to

the county attorney is foreclosed by Holloway v. State, ___ N.W.2d ___, ___, 293

Neb. 12, 20-26 (Neb. 2016), in which the Nebraska Supreme Court determined the

discretionary function exception applies to “[t]he decision whether to report to the

county attorney that another person is thought to be mentally ill and dangerous.”

Kruger also proposes “[t]he State had a mandatory legal duty to turn over Dr.

Baker’s psychiatric report” to the Public Counsel. Nebraska Statute section 81-

8,245(4) does provide the Public Counsel with “the power to . . . [r]equest and receive

from each administrative agency . . . the assistance and information the counsel deems

necessary for the discharge of his or her responsibilities” and declares the “agency

shall provide” such assistance and information. (Emphasis added). The statute also

grants the Public Counsel authority to “inspect and examine the records and

documents of all administrative agencies notwithstanding any other provision of

law.” Id.

Kruger briefly mentions section § 81-8,245(4) only in his reply brief, so he has

waived his argument based on that provision. See, e.g., Mahaney v. Warren County,

206 F.3d 770, 771 n.2 (8th Cir. 2000) (per curiam) (“Claims not raised in an initial

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brief are waived, and we generally do not consider issues raised for the first time on

appeal in a reply brief.”). Even if Kruger’s cursory reference to section 81-8,245(4)

were sufficient to raise the argument that the defendants had a non-discretionary duty

to provide Dr. Baker’s report to the Public Counsel upon the Public Counsel’s request

for documents, Kruger did not allege the Public Counsel ever made such a request.

Consequently, Kruger did not plead facts that plausibly could support this

proposition. See Bell Atl. Corp., 550 U.S. at 555-56.

b. Due Care Exception

Alternatively, Kruger suggests that even if the defendants’ actions were

discretionary functions, the discretionary function exception does not apply because

it only applies to discretionary functions carried out with due care. See Doe v.

Omaha Pub. Sch. Dist., 727 N.W.2d 447, 458 (Neb. 2007) (recognizing the existence

of a statutory due care exception under Neb. Rev. Stat. § 13-910). We do not decide

this issue because Kruger did not raise it before the district court. See, e.g., Shanklin

v. Fitzgerald, 397 F.3d 596, 601 (8th Cir. 2005) (“Absent exceptional circumstances,

we cannot consider issues not raised in the district court.”).

III. CONCLUSION

The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring.

Unlike the “special relationship” exception, the “state-created-danger”

exception is not extensively discussed in DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 197–99 (1989), but rather is circuit developed. While the

elements of this judicially-created theory vary somewhat among the courts, in order

to state a claim based on “state-created-danger,” most require a plaintiff to articulate

something like “a limited, precisely definable group” at risk. Fields v. Abbott, 652

F.3d 886, 891 (8th Cir. 2011) (quoting Hart v. City of Little Rock, 432 F.3d 801, 805

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(8th Cir. 2005)); see also, e.g., Ray v. Owens, 622 F. App’x 97, 99 (3d Cir. 2015)

(unpublished per curiam) (holding that harm must be “foreseeable and fairly direct”

and there must be “a special relationship between the [victim] and the state”); Doe ex

rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 864–66 (5th Cir.

2012) (en banc) (explaining that the Fifth Circuit has not adopted the theory, but has

stated the “theory is inapposite without a known victim” (citation omitted)); Guy v.

Lexington-Fayette Urban Cty. Gov’t, 624 F. App’x 922, 933 (6th Cir. 2015)

(unpublished) (state-created danger requires special danger that affects “a few

potential victims, not a few hundred.”); Jahn v. Farnsworth, 617 F. App’x 453,

462–63 (6th Cir. 2015) (unpublished) (state’s actions must place plaintiff specifically

at risk, as distinguished from risk that affects public at large); Wood v. Ostrander, 879

F.2d 583, 590 (9th Cir. 1989) (plaintiff distinguished from the general public);

Currier v. Doran, 242 F.3d 905, 918 (10th Cir. 2001) (plaintiff must be a member of

a limited and specifically definable group). See also Flint v. City of Belvedere, 791

F.3d 764, 770–71 (7th Cir. 2015) (no mention of public or group); Slade v. Bd. of

Sch. Dirs. of City of Milwaukee, 702 F.3d 1027, 1033 (7th Cir. 2012) (questioning

usefulness of Tenth Circuit’s test, including “limited and specifically definable

group” requirement).

I recognize that membership in the general public does not suffice to establish

a limited, precisely definable group. See Davis v. Fulton Cty., 90 F.3d 1346, 1351

(8th Cir. 1996). Because Kruger has failed to plead anything more than a statement

that the general public was at risk—Jenkins threatened to kill “people,” “others,” and

“Christians, Jews, women and children” and “eat people, specifically Christians and

Catholics”—I must concur in the opinion here as to Kruger’s § 1983 claims. Yet I

harbor some doubt as to the logic of our state-created-danger theory as it currently

stands in the face of highly unusual circumstances such as are presented by this case.

I would accept an invitation to revisit the elements required to support the theory

because of the minuscule likelihood, under current law, that any plaintiff could ever

succeed in proceeding beyond a Rule 12(b)(6) motion without an identifiable before-

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the-fact, named victim or a specific place to be targeted. Where the line should be

drawn in determining when a group is “precisely definable” enough to establish

liability is a question worth examining. Should pleading danger to “anyone Jenkins

comes into contact with” suffice to establish a precisely defined group? Should “any

child Jenkins encounters”? Or must it always be as specific as an “ex-wife” or “John

Smith”?

The lack of a consistent or decisive answer to those questions that makes sense

in every factual scenario makes it troubling to dismiss this type of case at such an

early stage. This is especially so here: If you consider the possibility that the other

elements of the “state-created-danger” theory are met, the duty of the State would

likely be the same whether there was a named victim or not—to civilly commit Nikko

Jenkins. Therefore, I question, under circumstances such as these, whether the simple

public-versus-precisely-definable-group dichotomy is a useful one, and I would not

find it inconsistent with DeShaney to rethink or refine it. Nor would such refinement

necessarily be foreclosed by Martinez v. State of Cal., 444 U.S. 277, 285 (1980)

(Defendant was “not aware that [the] decedent, as distinguished from the public at

large, faced any special danger.”). Moreover, the changes the court could reasonably

consider would not open the floodgates to liability and litigation, for each of the other

elements for establishing the “state-created-danger” theory in support of a § 1983

claim is a near-impossibly high hurdle, and all must be met. For instance, Kruger also

needed to plead that the defendants’ “conduct put her at a significant risk of serious,

immediate, and proximate harm,” and courts analyze with great scrutiny whether state

actors’ conduct constitutes action or inaction. Fields, 652 F.3d at 891 (quoting Hart,

432 F.3d at 805); see also, e.g., Rivera v. Rhode Island, 402 F.3d 27, 36 (1st Cir.

2005); Doe v. Rosa, 795 F.3d 429, 440 (4th Cir. 2015). The risk must also be

obvious or known to the defendants, and there must be a reckless, conscious disregard

of that risk. Finally, the defendants’ conduct must shock the conscience – yet another

extremely high standard to meet. See, e.g., Flint, 791 F.3d at 770 (“Though the

standard lacks precise measurement, only conduct falling towards the more culpable

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end of the tort law spectrum of liability is constitutionally conscience-shocking . . .

neither bad decision-making nor grossly negligent behavior meets the stringent test.”

(internal quotation marks and quotation omitted)).

Establishing a constitutional violation in this setting may be more difficult than

bringing a claim based on state tort law that the state could very well expand, and

understandably and justifiably so. See DeShaney, 489 U.S. at 203 (noting that the

State may change tort law if the people wish to expand liability); Rivera, 402 F.3d at

35–36 (“[C]ourts must be careful to distinguish between conventional torts and

constitutional violations.” (quoting Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir.

1997))). Yet the merits of these few and far between claims are worth considering,

and not dismissing out of hand. While tragic circumstances themselves must not

dictate judicial outcomes adverse to the law, it is precisely the unusual fact pattern

that can challenge the wisdom of reflexively rejecting a claim that does not quite fit

into the current legal mold. This may be such a case, and one in which we have the

opportunity to reevaluate, within the bounds of Supreme Court precedent, the efficacy

of that current mold.

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