Kruger v. State of Nebraska et al

Filing 53

MEMORANDUM OPINION granting 46 defendants' motion to dismiss these claims against the remaining defendants in their official capacity. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MICHAEL-RYAN KRUGER, Special
Administrator of the Estate
of Andrea Kruger,

)
)
)
)
Plaintiff,
)
)
v.
)
)
STATE OF NEBRASKA; DEPARTMENT )
OF CORRECTIONAL SERVICES;
)
ROBERT HOUSTON, Retired
)
Director, Department of
)
Correctional Services, in his )
official and individual
)
capacities; CAMERON WHITE,
)
Behavioral Health
)
Administrator, Department of )
Corrections, in his official )
and individual capacities;
)
and DR. RANDY KOHL, in his
)
official and individual
)
capacities,
)
)
Defendants.
)
______________________________)

4:14CV3139

MEMORANDUM OPINION

This matter is before the Court on the motion (Filing
No. 46) of the four1 defendants to dismiss plaintiff’s complaint
pursuant to Federal Rules of Civil Procedure 12(b)(3) and
12(b)(6).

The plaintiff has also filed a motion for oral

argument (Filing No. 50).

1

After review of the motions, briefs,

This figure reflects the defendants’ assertion that the
Department of Correctional Services was not intentionally made a
defendant and that Kruger has not effected service upon the
Department. Filing No. 47 at 9, n.2.

indices of evidence, and relevant case law, the Court finds as
follows.
I.

BACKGROUND
Plaintiff Michael-Ryan Kruger (“Kruger”) was married to

Andrea Kruger (“Andrea”), mother of three.

Tragically, Andrea

was killed by local serial killer Nikko Jenkins (“Jenkins”).
Subsequently Kruger learned that his wife’s murderer was only
recently released from Nebraska Department of Correctional
Services following an alleged act of bureaucracy aimed to offload
numerous inmates who required mental care from the State.

Though

not named in this case, Andrea was not Jenkins’ sole victim.
Jenkins also pleaded guilty in state court for the murders of
Jorge Cajiga-Ruiz, Juan Uribe-Pena, and Curtis Bradford.
Kruger, as special administrator of his wife’s estate,
brought the instant action for various negligence claims and
violations of his wife’s constitutional rights under Title 42,
Sections 1983 and 1988(a) in state court.

The defendants removed

the case to federal court and Kruger amended his complaint.
defendants moved for dismissal.

All

Following legislative hearings

regarding the Nebraska Department of Correctional Services,
Kruger wishes to dismiss several defendants and amend his
complaint again to include facts learned from the legislative
hearings.

Though the motions to dismiss were pending, the Court
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allowed Kruger to amend his complaint which rendered the pending
motions to dismiss moot.

In his amended complaint, Kruger

essentially alleges that the defendants, in their individual and
official capacities, ignored the dangers Jenkins presented and
failed to prevent his wife’s murder.
The remaining defendants are the State of Nebraska,
Robert Houston (“Houston”), the director of the Department of
Correctional Services at all relevant times, Dr. Cameron White
(“White”), who was the behavioral health administrator for the
Department of Correctional Services during all relevant times,
and Dr. Randy Kohl, who administered overall mental health
services throughout the State during all relevant times.
No. 44, at 1.

Filing

Kruger brings Nine Causes of Action against the

defendants in their official and individual capacities.

The

First, Second, and Third Causes of Action allege 42 U.S.C. § 1983
claims against the defendants.

The remaining six Causes of

Action allege various negligence claims and statements of
damages.
Kruger claims that actions and inactions of the
defendants constituted deliberate indifference to the policies,
practices or customs governing treatment and incarceration
resulting in the injuries suffered by Andrea (Filing No. 44, at
13-14).

Specifically, Kruger claims defendants Houston, White,
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and Dr. Kohl deprived Andrea of her Constitutional rights,
privileges and immunities, and acted with a deliberate
indifference to the mental health needs of an inmate in their
custody.

Kruger states Houston, White, and Dr. Kohl were aware

of facts which “presented a substantial risk of serious harm to
Andrea Kruger and the citizens of Nebraska, and in fact, drew
that inference.”

(Id. at 12).

“The Defendants created the

dangerous situation and harm that happened to Andrea Kruger.”
(Id.).
II.

LEGAL STANDARDS
The Court has an obligation to consider sua sponte

whether it has subject matter jurisdiction over a case.

Thomas

v. United Steelworkers Local 1938, 743 F.3d 1134, 1139 (8th Cir.
2014).

The Court "must raise jurisdictional issues 'when there

is an indication that jurisdiction is lacking, even if the
parties concede the issue.'”

Id. (quoting Thomas v. Basham, 931

F.2d 521, 523 (8th Cir. 1991)).

Suits are subject to dismissal

when the Court lacks subject matter jurisdiction to hear the
matter.

Fed. R. Civ. P. 12(b)(1).

The party asserting

jurisdiction bears the burden of proving that jurisdiction is
proper.

Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988

(8th Cir. 2010).

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Determining whether a complaint states a plausible
claim for relief is “a context-specific task” that requires the
court “to draw on its judicial experience and common sense.”
at 679.

Id.

Under Twombly, a court considering a motion to dismiss

may begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.
Id.

Although legal conclusions “can provide the framework of a

complaint, they must be supported by factual allegations.”

Id.

Accordingly, the Supreme Court has prescribed a “two-pronged
approach” for evaluating Rule 12(b)(6) challenges.
Iqbal, 556 U.S. 662, 679 (2009).

Ashcroft v.

First, a court should divide

the allegations between factual and legal allegations; factual
allegations should be accepted as true, but legal allegations
should be disregarded.

Id.

Second, the factual allegations must

be examined for facial plausibility.

Id.

“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. at 677 (stating that the plausibility

standard does not require a probability, but asks for more than a
sheer possibility that a defendant has acted unlawfully).

A

court must find “enough factual matter (taken as true) to
suggest” that “discovery will reveal evidence” of the elements of
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the claim.

Twombly at 558, 556.

When the allegations in a

complaint, however true, could not raise a claim of entitlement
to relief, the complaint should be dismissed for failure to state
a claim under Fed. R. Civ. P. 12(b)(6).

Id. at 558; Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).
III. DISCUSSION
As a preliminary matter, plaintiff believes the
defendants have waived their Sovereign Immunity defense and that
the Court should therefore deny the defendants’ motion to dismiss
the First, Second, and Third Causes of Action against Nebraska
and its employees for lack of subject matter jurisdiction
pursuant to the Eleventh Amendment to the United States
Constitution and the doctrine of Sovereign Immunity.
48, at 3.

Filing No.

The plaintiff argues that the Supreme Court’s

precedent in Lapides v. Board of Regents, 535 U.S. 613 (2002) is
controlling and that it holds whenever a state removes a case
from state to federal court, the state waives its sovereign
immunity defense entirely.

The issue is whether Nebraska has

waived its sovereign immunity defense by removing this case from
state court to federal court in reliance on this Court’s
jurisdiction.
The Court does not agree with the plaintiff’s expansive
reading of Lapides, both because of the expressly limited scope
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of the Justices’ opinion and because no subsequent case law
recognizes that proposition.

Lapides, 535 U.S. at 618-19; Vacek

v. Nebraska, 4:14CV3000, Filing No. 7, at *3 (D. Neb. Jan. 30,
2014); see also United States v. Metro. St. Louis Sever Dist.,
578 F.3d 722, 724-25 (8th Cir. 2009) (finding that a state may
waive sovereign immunity by filing a case in federal court);
Skelton v. Henry, 390 F.3d 614, 618 (8th Cir. 2004) (concluding
that the filing of a counterclaim in response to a complaint
filed in federal court does not waive sovereign immunity).

In

Lapides, Georgia statutorily waived its sovereign immunity for
similar actions.

Georgia removed the case into federal court so

that it could reclaim its Sovereign Immunity argument pursuant to
the Eleventh Amendment.

The United States Supreme Court found

this litigation tactic unfair and further found that Georgia had
waived its sovereign immunity defense by removing the case to
federal court.

Lapides, 535 U.S. at 620-21.

The Court

painstakingly limited its opinion “to the context of state-law
claims, in respect to which the State has explicitly waived
immunity from state-court proceedings.”

Id. at 617.

Therefore,

Nebraska’s removal of this case does not waive its sovereign
immunity defense per se.

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A.

FIRST THEORY:
1.

ANDREA’S DUE PROCESS RIGHTS

NEBRASKA AND THE OFFICIAL CAPACITIES OF HOUSTON, WHITE,
AND KOHL
Kruger asserts three claims pursuant to 42 U.S.C.

§ 1983 against the State of Nebraska and its employees, in their
official capacities, for violating Andrea’s rights.

“[A] State

is not a ‘person’ against whom a § 1983 claim for money damages
might be asserted.”

Lapides, 535 U.S. at 617 (citing Will v.

Mich. Dept. of State Police, 491 U.S. 58, 66 (1989)).

Also, “[a]

suit against a State employee in his or her official capacity is,
in reality, a claim against the State itself.”
71.

Will, 491 U.S. at

Because Kruger seeks monetary damages against Nebraska and

its employees, Nebraska’s motion to dismiss plaintiff’s First,
Second, and Third claims against Nebraska and the official
capacities of Houston, White, and Kohl will be granted pursuant
to the doctrine of Sovereign Immunity.
2.

THE INDIVIDUAL CAPACITIES OF HOUSTON, WHITE, AND KOHL
Kruger also asserts these three § 1983 claims against

Nebraska employees, in their individual capacities, for violating
Andrea’s Constitutional rights.

The defendants believe this

Court should dismiss these claims on the basis that these claims
offer no cognizable Constitutional claim, that the “Statecreated-danger doctrine” does not apply in this case, and the

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doctrine of qualified immunity shields the defendants from
liability.

Filing No. 47, at 14-21.
“The first inquiry in any § 1983 suit . . . is whether

the plaintiff has been deprived of a right ‘secured by the
Constitution and laws' of the United States.”

Martinez v.

California, 444 U.S. 277 (1980) (citing Baker v. McCollan, 443
U.S. 137 (1979)).

Kruger claims Nebraska and its employees

denied Andrea of her right to life and liberty without due
process by setting into motion the release of Jenkins which led
to Andrea’s murder.

Filing No. 44, at 13-14.

Kruger has failed to plead that Andrea was deprived of
a right secured by the Constitution and laws of the United
States.

The defendants did not contravene Andrea’s right to life

or liberty without due process of law.

This argument, in the

context of this case and these facts, has well established law
contrary to Kruger’s arguments.
The United States Supreme Court offers one such example
in Martinez v. California.

In Martinez, the State of California

released a parolee who killed a girl five months after his
release from jail.

Martinez, 444 U.S. at 279.

girl brought a § 1983 action against the state.
ultimately held:

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Survivors of the
Id.

The Court

Her life was taken by the parolee
five months after his release. He
was in no sense an agent of the
parole board. Further, the parole
board was not aware that
appellants’ decedent, as
distinguished from the public at
large, faced any special danger.
We need not and do not decide that
a parole officer could never be
deemed to “deprive” someone of life
by action taken in connection with
the release of a prisoner on
parole. But we do hold that at
least under the particular
circumstances of this parole
decision, appellants’ decedent’s
death is too remote a consequence
of the parole officers’ action to
hold them responsible under the
federal civil rights law. Although
a § 1983 claim has been described
as “a species of tort liability,”
it is perfectly clear that not
every injury in which a state
official has played some part is
actionable under that statute.
Id. at 285 (internal citations omitted).

Kruger distinguishes

the Court’s analysis in Martinez from the present case because of
the different time frames.

It is true the Court relied upon the

five-month time frame in making its findings, and that the Court
refused to rule on whether a parole officer could ever be “deemed
to ‘deprive’ someone of life by action taken in connection with
the release of a prisoner on parole.”

Id.

However, in the wake

of Martinez, several Circuit Courts have declined to impute
liability for the actions of those released from state
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incarceration on to the individuals who released the former
inmates under § 1983 within shorter intervals.

Lovins v. Lee, 53

F.3d 1208 (11th Cir. 1995); Davis v. Fulton County, 90 F.3d 1346
(8th Cir. 1996); Fox v. Custis, 712 F.2d 84 (4th Cir. 1983);
Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).
Nine years afer the Martinez decision, the Supreme
Court delivered its opinion in DeShaney v. Winnebago County Dep’t
of Social Services, 489 U.S. 189 (1989).

Therein the Supreme

Court established the special relationship doctrine to determine
whether the Fourteenth Amendment requires a state to protect its
citizens from invasion from private citizens.

Id. at 195-96.

The Court held that there are certain limited circumstances in
which “the Constitution imposes upon the State affirmative duties
of care and protection with respect to particular individuals.”
Id. at 198.

“The affirmative duty to protect arises not from the

State's knowledge of the individual's predicament or from its
expressions of intent to help . . ., but from the limitation
which it has imposed on [one’s] freedom to act on [one’s] own
behalf.”

Id. at 198 (citing Estelle v. Gamble, 429 U.S. 97, 103

(1995)).

Without these special circumstances, a § 1983 action

must fail.

See id. at 197.

In no event could discovery uncover

evidence that Andrea was in the special circumstances articulated
in DeShaney, and the plaintiff is unable to argue to the
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contrary.

See Filing No. 31 at 14, 24, 26.

To the extent that

Kruger argues that a special relationship existed between Jenkins
and the Nebraska defendants, the Court will address those
arguments below.
Due Process can also require the state to protect
individuals when the state created the danger to which the
individuals are subjected.

Fields v. Abbott, 652 F.3d 886, 890

(8th Cir. 2011), Estate of Johnson v. Weber, No. CIV 12-4084,
2014 WL 2002882, at *5 (D.S.D. May 15, 2014).

To succeed on the

state-created danger theory of substantive due process, Kruger
must prove the following:
(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.
Fields, 652 F.3d at 891, Johnson, No. CIV 12-4084, 2014 WL
2002882, at *6.
definable group.

Andrea was not a member of a limited, precisely
In his previous amended complaint, Kruger

argued Andrea was a member of the public and that made her a
limited, precisely defined group, which is not true.

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Filing No.

31, at 28.

In the current complaint, Kruger avoids referring to

Andrea as a member of the public in his § 1983 Causes of Action,
but in the Fourth Cause of Action, he referred to her as a member
of the public.

Filing No. 44, at 15-16.

Membership in the

general public is not tantamount to membership in a limited,
precisely definable group.

Kruger has failed to prove that

Andrea was a member of a limited, precisely definable group
because the general public is not a limited, precise, or defined
group.
Therefore, Kruger fails to articulate a cognizable
Constitutional claim, the special relationship doctrine does not
apply to this case, and the “State-created-danger doctrine” also
does not apply in this case.

The Court need not turn to the

issue of qualified immunity.

For the foregoing reasons, Kruger’s

First, Second, and Third claims against the defendants in their
individual capacities will be dismissed.

See Martinez, 444 U.S.

at 285, DeShaney, 489 U.S. 189 (1989), Davis v. Fulton County, 90
F.3d 1346 (8th Cir. 1996), Fields v. Abbott, 652 F.3d 886, 890
(8th Cir. 2011); see also Lovins v. Lee, 53 F.3d 1208 (11th Cir.
1995); Fox v. Custis, 712 F.2d 84 (4th Cir. 1983); Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982), Estate of Johnson v.
Weber, No. CIV 12-4084, 2014 WL 2002882, at *5 (D.S.D.
2014).
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May 15,

B.

SECOND THEORY: STATE LAW CLAIMS
1.

INDIVIDUAL CAPACITY
The defendants move to dismiss Kruger’s Fourth, Fifth,

Sixth, Seventh, Eighth, and Ninth Causes of Action for various
reasons.

First, the defendants maintain that, because Kruger

alleges that Houston, White, and Kohl acted within the scope and
course of their employment with the State of Nebraska, Kruger’s
sole recourse is to file claims against the remaining defendants
in their official capacities.

Filing No. 47, at 25 (citing Young

v. Douglas County, No. 8:07CV265, 2009WL2568061, at *1 (D. Neb.
Aug. 19, 2009)).

Therefore, the defendants move to dismiss the

remaining Causes of Action against Houston, White, and Kohl in
their individual capacities.
Pursuant to the Nebraska Supreme Court case, Bohl v.
Buffalo County, the Court analyzes whether Kruger may assert
claims against the remaining defendants in their individual
capacities.

The issue is whether these defendants acted solely

within their capacities as employees of the State of Nebraska.
If the defendants “did not act within the scope of [their]
employment,” Kruger may pursue his claim against them in their
individual capacities; however if it is determined that the
defendants “did act within the scope of [their] employment,”
Kruger would have had to comply with the requisites set out in
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the State Tort Claims Act.

Filing No. 47, at 25-26 (citing

Young, No. 8:07CV265, 2009WL2568061, at *6; Big Crow v. City of
Rushville, 266 Neb. 750, 755, 669 N.W.2d 63, 67 (Neb. 2003)); See
also No. 8:07CV265, Filing No. 216, at 48 (quoting Bohl v.
Buffalo County, 251 Neb. 492, 500, 557 N.W.2d 668. 674 (1997)).
The parties do not dispute that the defendants acted solely
within the scope of their employment.

Filing No. 47 (Defendants’

Second Motion for Dismissal) at 26 (citing Filing No. 44
(Plaintiff’s Second Amended Complaint) at 2, ¶ 7 (“At all times
alleged herein, the individual Defendants listed above and their
agents were acting within the scope and course of their
employment with their various employers.”)).

Therefore, the

Court will grant the defendants’ motion to dismiss all remaining
Causes of Action against the remaining defendants in their
individual capacities.
2.

OFFICIAL CAPACITY:

DISCRETIONARY FUNCTION EXCEPTION

Second, the defendants move to dismiss Kruger’s Fourth,
Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action against
Houston, White, and Kohl in their official capacities pursuant to
the Discretionary Function Exception.

The State Tort Claims Act

governs state law tort claims brought against State officials
acting within the course and scope of their employment.

See Doe

v. Bd. of Regents, 280 Neb. 492, 512 788 N.W.2d 264, 282 (2010);
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Neb. Rev. Stat. § 81-8,209.

This statute provides a limited

waiver of Nebraska’s Sovereign Immunity for many tort claims, but
it also lists exceptions to that waiver.
§ 81-8,219.

Id.; Neb. Rev. Stat.

A defendant may affirmatively plead that the

plaintiff has failed to state a cause of action because an
exception to the waiver of Sovereign Immunity applies.

Id. at

513.
Among the Tort Claim Act’s exceptions is the
“discretionary function exception,” which reads as follows:
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 . . .
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).

Therefore, any state employee’s

action or inaction in a discretionary function cannot be the
basis for liability under the Act because Nebraska preserves its
Sovereign Immunity under this doctrine.

Jasa By and Through Jasa

v. Douglas County, 244 Neb. 944, 955, 510 N.W.2d 281, 288 (1994)
(quoting Wickersham v. State, 218 Neb. 175, 180, 354 N.W.2d 134,
138-39 (1984)).

A discretionary function exception is when a
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governmental executive or administrator has discretion to act
according to one’s judgment of the best course to be taken.

See

id.
The defendants state that Kruger failed to allege in
his Second Amended Complaint that the remaining defendants 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.

Filing No. 47, at 28.

Because Kruger did not plead

that the defendants lacked discretion in these two matters, the
defendants argue, the discretionary function exception requires
dismissal.
a.

“GOOD TIME”

Insofar as Kruger alleges negligence in the defendants’
calculation of Jenkins’ good time, the Court finds the
discretionary function exception shields the defendants from
liability.

The Nebraska “good time law” reads as follows:
While the offender is in the
custody of the department,
reductions of terms granted
pursuant to subdivision (2)(a) of
this section 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.

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Neb. Rev. Stat. § 83-1,107(3).

In Jasa By and Through Jasa, the

Nebraska Supreme Court interpreted the word “may” in a Nebraska
statute to mean that a government agency “had the power to make
bacterial meningitis a reportable disease.”

Jasa By and Through

Jasa, 244 Neb. at 962, 510 N.W.2d 281, 291 (construing Neb. Rev.
Stat. § 71-503.01).

The Court ultimately ruled that this

language made the statutes discretionary and therefore the
discretionary function exception shielded Douglas County under
the Tort Claim Act.

Id. at 292, 510 N.W.2d at 963.

It is obvious from the language of Nebraska Revised
Statute Section 83-1,107(3) that the forfeiture, withholding, and
restoration of “good time credits” are within the purview and
shared discretion of the chief executive officer of the facility
with the approval of the director.

No argument can overcome the

clear and plain meaning of this statute and the Court finds that
the language of the statute is discretionary.

Therefore, the

Court will grant the defendants’ motion to dismiss all claims
against them in their official capacity based upon a violation or
negligent application of the good-time credit statute.
b.

CIVIL COMMITMENT

Kruger also claims to have been injured by the failure
of the defendants to follow state mandated civil commitment
procedures for Jenkins.

Defendants seek to dismiss this
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allegation against the remaining defendants in their official
capacity.

The statute in question reads as follows:
Any person who believes that
another person is mentally ill and
dangerous may communicate such
belief to the county attorney
. . . . If 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).

For the same reasons stated above,

the Court construes the meaning of the word “may” as
discretionary here.

In addition, the county attorney’s duty to

concur with such reports is discretionary because the statute
contains the word “may.”

Therefore, the Court will grant the

defendants’ motion to dismiss Kruger’s claims against the
remaining defendants in their official capacity insofar as they
plead allegations which fall within the Discretionary Function
Exception.
c.

MISCELLANEOUS

Kruger makes an ostensible claim of misrepresentation
when he alleges that the remaining defendants withheld documents
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from other officials concerning Jenkins.

Pursuant to the Tort

Claims Act preservation of Sovereign Immunity for the claim of
misrepresentation, the Court will grant the defendants’ motion to
dismiss these claims against the remaining defendants in their
official capacity.

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 9th day of February, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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