John Montin v. Y. Moore

United States Court of Appeals

For the Eighth Circuit

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No. 16-1560

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John Maxwell Montin

lllllllllllllllllllll Plaintiff - Appellant

v.

Y. Scott Moore, M.D.; Mario Scalora, Ph.D.; Mary Paine, Ph.D.

lllllllllllllllllllll Defendants - Appellees

Stephen Paden, M.D.

lllllllllllllllllllll Defendant

Lisa Woodward, Ph.D.

lllllllllllllllllllll Defendant - Appellee

Chin Chung, M.D.; Marco Baquero, M.D.; Eugene Oliveto, M.D.

lllllllllllllllllllll 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.

lllllllllllllllllllll Defendants - Appellees

Cynthia Petersen, Nurse Practitioner; James Allison, Ph.D.

lllllllllllllllllllll Defendants

Corrine McCoy, Program Manager; Jennifer Cimpl, Psy.D.; Shannon Black,

Psy.D.; Zakaria Siddiqui, M.D.

lllllllllllllllllllll Defendants - Appellees

Roberto Alves, Psy.D.

lllllllllllllllllllll Defendant

Kathleen Barrett, Psy.D.; Klaus Hartmann, M.D.

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court

for the District of Nebraska - Lincoln

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Submitted: October 25, 2016

Filed: January 19, 2017

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

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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

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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 42 U.S.C. § 1983, defendants violated his federal civil right to be free

from unnecessary confinement by creating unreliable evaluations and reports and

failing to evaluate and treat Montin properly so that Montin continued to be

unnecessarily confined. Montin claimed this failure to evaluate and treat him

adequately violated his fundamental right to freedom from physical restraint. Montin

further asserted defendants violated his federal civil rights by retaliating against him

for seeking relief in state and federal courts. Montin also alleged defendants failed

to meet the standard of care in their respective disciplines under Nebraska state law

1

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

Nebraska.

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by incorrectly labeling Montin as mentally ill and subjecting Montin to unnecessary

and inappropriate treatment and confinement.

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, Neb. Rev. Stat. § 81-8,209, et

seq. The district court also granted defendants’ Fed. R. Civ. Pro. 12(c) motion for

judgment on the pleadings and dismissed Montin’s federal civil rights claims,

concluding defendants were entitled to qualified immunity. Montin appeals the

district court’s orders dismissing his claims, and we have jurisdiction to hear his

appeal pursuant to 28 U.S.C. § 1291.

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’ Rule 12(b)(1)

and (6) motion to dismiss.2 We review such a dismissal de novo and interpret all

factual allegations in the pleadings in the light most favorable to the nonmoving

party. See Nelson v. Midland Credit Mgmt. Inc., 828 F.3d 749, 751 (8th Cir. 2016).

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 42 U.S.C. § 1983, or states can waive sovereign immunity, but in the

absence of such abrogation or waiver, sovereign immunity bars all suits. See,

e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996).

2

The district court had jurisdiction over Montin’s state law malpractice claim

under 28 U.S.C. § 1332(a)(1).

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Nebraska has waived sovereign immunity for a limited set of claims. See

Nebraska State Tort Claims Act (STCA), Neb. Rev. Stat. § 81-8,209, et seq. For suits

not barred by sovereign immunity within Nebraska’s waiver, the STCA provides:

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.

Id. § 81-8,214.

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., 557 N.W.2d 668, 673 (Neb. 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’ state employment, and we must treat the state law malpractice claim

as if it is against defendants in their official capacities. See id.

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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 Neb.

Rev. Stat. § 81-8,214 (requiring all claims under Nebraska’s STCA be brought in

state district court). State sovereign immunity bars actions in federal court regardless

of the basis for otherwise appropriate subject matter jurisdiction. See Raygor v.

Regents of Univ. of Minn., 534 U.S. 533, 541-42 (2002) (holding the Eleventh

Amendment bars actions in federal court even where 28 U.S.C. § 1367, in general,

authorizes supplemental jurisdiction). Montin did not comply with the requirements

set forth by Nebraska’s STCA—“[s]uits shall be brought in the district court of the

county in which the act or omission . . . occurred,” Neb. Rev. Stat. § 81-8,214—when

he filed his state law malpractice claim in federal court. The district court did not err

in dismissing this claim without prejudice.

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

3

Defendant Mario Scalora asserts he is not a “person” who can be sued under

42 U.S.C. § 1983 because he is a state employee. The Supreme Court has previously

held a state is not a “person” who can be sued under 42 U.S.C. § 1983, see Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989), but the Court has explicitly

rejected the position defendant Scalora sets forth: “The requirement of action under

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unnecessary confinement civil rights claim following defendants’ motions for

judgment on the pleadings. We review a grant of a Fed. R. Civ. P. 12(c) motion de

novo. See Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). A grant of such

a motion is “appropriate only when there is no dispute as to any material facts and the

moving party is entitled to judgment as a matter of law.” Id.

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 no,

then the [state officials] are entitled to qualified immunity.” Keil v. Triveline, 661

F.3d 981, 985 (8th Cir. 2011).

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

color of state law means that [a state official] may be liable for [actions taken within

the scope of her employment] precisely because of her authority as [a state official].

We cannot accept the novel proposition that this same official authority insulates

[state officials] from suit.” Hafer v. Melo, 502 U.S. 21, 27-28 (1991). Therefore this

argument has no merit.

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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.

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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 different from the

situation Montin alleged—defendants held a subjective belief Montin was mentally

ill and dangerous to himself or others, as Montin himself alleged in his amended

complaint. This belief—even if it is an erroneous belief predicated on defendants’

allegedly negligent treatment—rebuts any allegation defendants maliciously intended

to deprive Montin of his constitutional rights. See id. at 577.

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

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affirm the district court’s dismissal of the unnecessary confinement claim because

defendants are entitled to qualified immunity.

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