Velita Glasgow v. State of Nebraska, etc., et al

Filing

OPINION FILED - THE COURT: William Jay Riley, C. Arlen Beam and Jane Kelly AUTHORING JUDGE:William Jay Riley (PUBLISHED), CONCUR BY: Jane Kelly [4386536] [15-1755]

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
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Submitted: November 18, 2015
Filed: April 8, 2016
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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
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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.
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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.”
I.

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).
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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

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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 officialcapacity 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).

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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”).
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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.”).
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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 specialrelationship 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
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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.”
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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.
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