Velita Glasgow v. State of Nebraska, etc. , 819 F.3d 436 ( 2016 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-1755
    ___________________________
    Velita Glasgow, Special Administrator of the Estate of Curtis Bradford
    lllllllllllllllllllll 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
    lllllllllllllllllllll Defendants - Appellees
    ____________
    Appeal from United States District Court
    for the District of Nebraska - Omaha
    ____________
    Submitted: November 18, 2015
    Filed: April 8, 2016
    ____________
    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
    1
    The Honorable Lyle E. Strom, United States District Judge for the District of
    Nebraska.
    2
    We have jurisdiction under 28 U.S.C. § 1291.
    -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
    3
    This appeal arises from dismissals pursuant to Federal Rule of Civil Procedure
    12(b)(6), and we take our “facts” from Glasgow’s complaint allegations to determine
    if Glasgow 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).
    -3-
    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
    -4-
    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, 
    557 N.W.2d 668
    , 673-74 (Neb. 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, 
    853 N.W.2d 181
    , 192 (Neb. 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).
    -5-
    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.
    4
    Glasgow likewise forfeited any challenge to the district court’s decision not
    to permit Glasgow to amend her complaint a second time, because while she declares
    this was error in her Statement of the Issues, Glasgow does not show she ever sought
    leave to amend and her appellate brief contains no other reference to the issue. See,
    e.g., Koehler v. Brody, 
    483 F.3d 590
    , 599 (8th Cir. 2007) (determining the appellant
    waived an issue when it was mentioned only “in the statement of issues” portion of
    the brief and “a one sentence footnote”).
    -6-
    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 (2014) (quoting
    Ashcroft v. al-Kidd, 
    563 U.S. 731
    , ___, 
    131 S. Ct. 2074
    , 2080 (2011)).
    Glasgow asserts “State Defendants, by their actions regarding Nikko Jenkins,
    deprived Curtis Bradford of his constitutional right to life and liberty under the
    Fourteenth Amendment.” The Supreme Court has held
    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.
    5
    To the extent Glasgow seeks to appeal the dismissal of her § 1983 claims
    against the State of Nebraska and the department officials in their official capacities,
    we affirm the dismissal because such claims do not state a claim under § 1983 and are
    prohibited by the Eleventh Amendment, absent a waiver of sovereign immunity not
    present here. See, e.g., Will v. Mich. Dep’t of State Police, 
    491 U.S. 58
    , 65-66, 71
    (1989) (“[A] State is not a ‘person’ within the meaning of § 1983 . . . . 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.”).
    -7-
    DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 
    489 U.S. 189
    , 191, 195 (1989)
    (rejecting a § 1983 claim by a boy who alleged the county social services department
    knew he had been hospitalized repeatedly for suspicious injuries but took no action
    to protect him from his abusive father). More specifically, “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).
    There are two exceptions to the general rule that a state is not required by the
    Due Process Clause “to protect the life, liberty, and property of its citizens against
    invasion by private actors.” 
    DeShaney, 489 U.S. at 195
    . First, the special-
    relationship exception applies to limited circumstances where the state has
    “affirmative duties of care and protection with respect to particular individuals.” 
    Id. at 198
    (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)). Here, the state did not have a specific, affirmative duty to Bradford.
    The second exception is the “state-created danger” exception, which requires:
    (1) that [Bradford] was a member of “a limited, precisely definable
    group,” (2) that the [defendants’] conduct put [Bradford] 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 conscious.”
    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)). This exception does not apply because
    -8-
    Bradford was not “a member of ‘a limited, precisely definable group.’” See 
    id. (quoting Hart,
    432 F.3d at 805). Glasgow theorizes that “[t]he group was limited and
    definable in that anyone Nikko Jenkins came in contact with could have been killed
    by him.” We cannot agree. The general public is not “‘a limited, precisely definable
    group,’” and the state-created-danger doctrine does not apply. See 
    id. The district
    court did not err by dismissing Glasgow’s § 1983 claims against the department
    officials in their individual capacities.
    2.     Glasgow’s State Law Claims
    Glasgow asserts “the district court erred in dismissing appellant[’]s [STCA]
    cause of action” because “appellees committed negligence against Bradford.”
    Glasgow makes assertions such as “[t]he State has a duty to protect citizens from
    dangerous criminals,” “[t]he State had a duty to inform the public that Jenkins
    intended to kill people once he was released,” and “the state was . . . negligent in the
    deliberate failure to provide accurate medical information, both to the Johnson
    County attorney and to the state Ombudsman’s Office, as required by statute.”6
    Apparently in an attempt to argue the department officials had an unspecified duty to
    Jenkins, Glasgow declares “[t]he District Court ruled that policy interest[s]
    discourage suits from non-incarcerated Nebraskans concerning the care of
    incarcerated Nebraskans. . . . [H]owever, this should not be the case when the State
    6
    Glasgow raises the latter point for the first time on appeal and presents no
    special circumstances, so we do not consider it. See, e.g., Pub. Water Supply Dist.
    No. 3 of Laclede Cty. v. City of Lebanon, 
    605 F.3d 511
    , 524 (8th Cir. 2010)
    (“‘Absent exceptional circumstances, we cannot consider issues not raised in the
    district court.’” (quoting Shanklin v. Fitzgerald, 
    397 F.3d 596
    , 601 (8th Cir. 2005))).
    Moreover, any argument Glasgow might make that the state had a duty to report
    Jenkins’s statements or conduct 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 STCA’s 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.”
    -9-
    knows the substantial risk of danger and does nothing to protect the public from the
    danger.” Beyond reciting the elements of negligence, Glasgow does not cite any legal
    authority or explain the factual basis for her assertion that the defendants had a duty
    to either Bradford or Jenkins. We conclude Glasgow has forfeited any challenge to
    the district court’s ruling dismissing her state law claims. See Fed. R. App. P.
    28(a)(8)(A) (requiring the appellant’s brief contain “appellant’s contentions and the
    reasons for them, with citations to” legal authorities and the record); United States v.
    Stuckey, 
    255 F.3d 528
    , 531 (8th Cir. 2001) (“[W]e regularly decline to consider
    cursory or summary arguments that are unsupported by citations to legal
    authorities.”).
    III.   CONCLUSION
    The judgment of the district court is affirmed.
    KELLY, Circuit Judge, concurring.
    For the same reasons stated in Kruger v. Nebraska, No. 15-1427, slip op. at 15
    (8th Cir. April 7, 2016) (Kelly, J., concurring), I concur.
    ______________________________