Montin v. Moore et al

Filing 35

MEMORANDUM AND ORDER that Defendants' #9 Motion to Dismiss for Failure to State a Claim is denied in part and granted in part: a) The medical malpractice or professional negligence claim against the defendants in their official capacities is dismissed. b) Defendants' motion to dismiss the individual capacity claims for the medical malpractice or professional negligence claims is denied at this time. c) Defendants' motion to dismiss the Unnecessary Bodily Restraint and Truthful Disclosure claims is granted. However, defendants' motion to dismiss the Access to Courts or Retaliation Claim is denied. d) Defendants' motion to dismiss the medical malpractice or professional negligence claim on the grounds that the physician-patient relationship never existed is denied. Ordered by Senior Judge Lyle E. Strom. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN MAXWELL MONTIN,
Plaintiff,
v.
Y. SCOTT MOORE, et al.,
Defendants.

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4:14CV3142

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
defendants, Y. Scott Moore M.D., Mary Paine Ph.D., Lisa Woodward
Ph.D., Ann Evelyn M.D., Dinesh Karumanchi M.D., Rajeev Chaturvedi
M.B.B.S., Joanne Murney Ph.D., Sherri Browning Ph.D., Lorrene
Jurgens APRN, Mindy Abel Psy.D., Corrine McCoy, Jennifer Cimpl
Psy.D., Shannon Black Psy.D., Zakaria Siddiqu M.D., Kathleen
Barrett Psy.D., and Klaus Hartmann M.D., to dismiss plaintiff’s
claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6) (Filing No. 9), with supporting brief (Filing No. 10).
The plaintiff filed a brief in opposition (Filing No. 30), to
which the defendants replied (Filing No. 31).

After reviewing

the submissions of the parties and the relevant law, the Court
finds as follows.
I. BACKGROUND
The plaintiff, John Maxwell Montin (“Montin”), filed a
complaint on July 11, 2014, alleging violation of his civil

rights pursuant to 42 U.S.C. § 1983 and state tort medical
malpractice claims (Filing No. 1).

The plaintiff’s claims arise

out of his evaluation and diagnosis while committed to the
Lincoln Regional Center (“LRC”).

Montin was committed to the LRC

on August 13, 1993, by the Hays County District Court for an
evaluation after a jury found him to be not responsible by reason
of insanity on two felony charges (Id. at ¶ 29).

On July 16,

2013, Montin was unconditionally released from court-ordered
treatment at the LRC because he was found to be no longer
dangerous to himself or others by reason of mental illness or
defect and will not be so dangerous in the foreseeable future
(Id. at ¶ 31).

Montin alleges that the defendants failed to

determine that he was not mentally ill, and that he did not
suffer from a condition requiring treatment during his time at
the LRC (Id. at ¶ 40).

Montin also claims that the defendants

failed to meet the standard of care while treating him. (Id. at
¶ 51-52).

In addition, Montin alleges various civil rights

claims against the named defendants (Id. at ¶¶ 76-90).
Defendants Y. Scott Moore M.D., Mary Paine Ph.D., Lisa
Woodward Ph.D., Ann Evelyn M.D., Dinesh Karumanchi M.D., Rajeev
Chaturvedi M.B.B.S., Joanne Murney Ph.D., Sherri Browning Ph.D.,
Lorrene Jurgens APRN, Mindy Abel Psy.D., Corrine McCoy, Jennifer
Cimpl Psy.D., Shannon Black Psy.D., Zakaria Siddiqu M.D.,
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Kathleen Barrett Psy.D., and Klaus Hartmann M.D., (“Defendants”),
move this Court to dismiss the plaintiff’s claims under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The defendants

argue that the plaintiff’s claims are barred by absolute
immunity, sovereign immunity, and qualified immunity.

In

addition, the defendants argue that the plaintiff has failed to
state a cognizable claim for medical or professional negligence
because the physician-patient relationship necessary to give rise
to a legal duty did not exist.
II. STANDARDS OF REVIEW
A. Fed.R.Civ.P. 12(b)(1)
A motion under Federal Rule of Civil Procedure 12(b)(1)
challenges whether the Court has subject matter jurisdiction to
hear the matter.

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).

The

Court “has the authority to dismiss an action for lack of subject
matter jurisdiction on any one of three separate bases:

‘(1) the

complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court’s resolution of disputed
facts.’”

Johnson v. United States, 534 F.3d 958, 962 (8th Cir.

2008)(quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
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1981)); see also Jessie v. Potter, 516 F.3d 709, 712 (8th Cir.
2008)(“Motions to dismiss for lack of subject-matter jurisdiction
can be decided in three ways:

at the pleading stage, like a Rule

12(b)(6) motion; on undisputed facts, like summary judgment
motion; and on disputed facts”).
B. Fed.R.Civ.P. 12(b)(6)
Under the Federal Rules, a complaint must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Consequently,

a motion to dismiss may be granted when the plaintiff has failed
“to state a claim upon which relief can be granted."
Civ. P. 12(b)(6).

Fed. R.

“To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570(2007)).

“While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do . . . .”
omitted).

Twombly, 550 U.S. at 555 (internal quotations

“The complaint must ‘provide a defendant with some
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indication of the loss and the causal connection that the
plaintiff has in mind.’

Otherwise, a plaintiff with no hope of

showing proximate causation could require inefficient expenditure
of resources and potentially induce a defendant to settle a
meritless claim.”

Schaaf v. Residential Funding Corp., 517 F.3d

544, 549 (8th Cir. 2008) (quoting Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 347 (2005)).
“When ruling on a motion to dismiss, the court must
accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party.”
Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005).

“The

plausibility standard requires a plaintiff to show at the
pleading stage that success on the merits is more than a ‘sheer
possibility.’”

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,

594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678.)
not, however, a ‘probability requirement.’”

Id.

“It is

Accordingly, “a

well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of the facts alleged is improbable, and
‘that a recovery is very remote and unlikely.’”

Twombly, 550

U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).

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III. DISCUSSION
A. Absolute Immunity
The defendants argue that the doctrine of absolute
immunity bars the plaintiff’s claims.

The doctrine of absolute

immunity shields “all persons –- governmental or otherwise –- who
were integral parts of the judicial process” from damage claims.
Briscoe v. LaHue, 460 U.S. 325, 336 (1983). “[N]onjudicial
persons who fulfill quasi-judicial functions intimately related
to the judicial process have absolute immunity for damage claims
arising from their performance of the delegated functions.”
Moses v. Parwatikar, 813 F.2d 891, 892 (8th Cir. 1987)(citing
Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir. 1987)).

Courts

have found that probation officers, guardian ad litems, and
court-appointed psychologists are related to the judicial process
and absolutely immune from damage claims.

See, e.g., Demoran v.

Witt, 781 F.2d 155, 157 (9th Cir. 1986)(probation officers);
Dornheim v. Sholes, 430 F.3d 919 (8th Cir. 2005)(guardian ad
litems); Morstad v. Dep’t of Corr. and Rehab., 147 F.3d 741, 744
(8th Cir. 1998) (finding that a court appointed psychologist who
evaluated and testified regarding the patient, was performing
functions essential to the judicial process).
The defendants state that plaintiff’s claims are barred
by absolute immunity due to the integral nature of their role in
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the judicial process.

The plaintiff was committed to the LRC on

August 13, 1993, after being found not responsible by reason of
insanity.

Between August 13, 1993 and July 16, 2013, the

defendants provided the plaintiff with professional health care
services.

During the plaintiff’s time at the LRC, the named

defendants provided the District Court for Hayes County with
documentation of the treatment process pursuant to Neb.Rev.Stat.
§ 29-3703(1).

Under § 29-3703(1), the court is responsible for

annually reviewing records, or if necessary ordering evaluations.
The defendants argue that because their conduct involved courtmandated duties, they were performing quasi-judicial functions,
and are therefore, immune.

The Court disagrees.

Under § 29-

3703, the district court conducts the review and has the power to
order evaluations.

The day-to-day duties of the employees of the

LRC are not akin to probation officers, guardian ad litems, and
court-appointed psychologists.

The named defendants’ duties at

LRC were not so intimately related to the judicial process to
warrant absolute immunity.

Therefore, the Court will not dismiss

the plaintiff’s claims against the defendants based on absolute
immunity grounds.

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B. Sovereign Immunity
Defendants argue that the doctrine of sovereign
immunity bars the claims for medical malpractice or professional
negligence against the state employees in both their official and
individual capacities.

In addition, the defendants argue that

the conduct giving rise to the plaintiff’s medical malpractice or
professional negligence claims was discretionary in nature, and
therefore, protected by sovereign immunity.
1. Official Capacity
The Eleventh Amendment bars claims for damages by
private parties against a state, state instrumentalities, and
employees of a state sued in the employees’ official capacity.
See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir.
1995).

Any award for retroactive monetary relief payable by the

state is barred by the Eleventh Amendment.

See Dover Elevator

Co. v. Arkansas State Univ., 64 F.3d 442, 444 (8th Cir. 1995).
Sovereign immunity does not bar damage claims against state
officials acting in their individual capacities, nor does it bar
claims brought pursuant to 42 U.S.C. § 1983 which seek equitable
relief from state employee defendants acting in their official
capacity.

A claim against an individual state employee in his or

her official capacity is essentially a claim against the entity
employing the individual.

Eagle v. Morgan, 88 F.3d 620, 629 n. 5
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(8th Cir. 1996)(quoting Kentucky v. Graham, 473 U.S. 159, 165,
105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).

Therefore, damage claims

against individual state employees acting in their official
capacity are also barred by the Eleventh Amendment.

Murphy v.

State of Ark., 127 F.3d 750, 754 (8th Cir. 1997).
To the extent that the plaintiff seeks relief against
the named defendants in their official capacities, such relief is
barred by sovereign immunity.

There is nothing before the Court

showing that the State of Nebraska has waived its sovereign
immunity for individual state employees in their official
capacities.

Therefore, the claims against the defendants in

their official capacities will be dismissed.
2. Individual Capacity
The Nebraska Constitution under Article V, § 22,
provides a waiver of sovereign immunity stating, “The State may
sue and be sued, and the Legislature may provide by law in what
manner and in what courts suits shall be brought.”

The State

Tort Claims Act (“STCA”) 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); Neb.Rev.Stat. § 81-8,209.

The STCA

provides a limited waiver of Nebraska’s sovereign immunity for
many tort claims, but it also lists exceptions to that waiver.
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Id.; Neb. Rev. Stat. § 81-8,219.

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, an 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)).

“However, the discretionary function or duty

exemption in the State Tort Claims Act extends only to the basic
policy decisions made in governmental activity, and not to
ministerial activities implementing such policy decisions.”
Wickersham, 218 Neb. at 180.

The court in Wickersham found that
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a State can be “liable for negligence of its employees at the
operational level where there is no room for policy judgment.”
Id.
When reviewing whether a State is entitled to the
discretionary function exemption, the Court may consider whether
facts are disputed or undisputed.

If the facts are disputed and

a bare evidentiary record is present, then the question is one of
fact.

See Id. at 182.

However, in cases where the facts are

undisputed, “the application of the discretionary function
exemption of the State Tort Claims Act or Political Subdivision
Tort Claims Act presents a question of law.”

D.K. Buskirk &

Sons, Inc. v. State, 252 Neb. 84, 90, 560 N.W.2d 462 (1997).

In

this case, the facts are disputed as to the medical malpractice
or professional negligence claim.

As a result, the Court will

deny the defendants’ motion to dismiss the individual capacity
claims at this time and allow further discovery.
C. Qualified Immunity
The doctrine of qualified immunity protects government
officials from liability for civil damages so long as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.

Messerschmidt v. Millender, --- U.S. ---, 132 S.Ct. 1235,

1244, 182 L.Ed.2d 47 (2012); Pearson v. Callahan, 555 U.S. 223,
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231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

In short, the

plaintiff must plead facts showing that (1) the defendants
violated a statutory or constitutional right, and (2) the right
was clearly established at the time of the challenged conduct.
Ashcroft v. al-Kidd, ---U.S.---, 131 S.Ct. 2074, 2080, 179
L.Ed.2d 1149 (2011).

The Court has discretion to decide which of

the two prongs of the qualified immunity analysis to address
first.

Id.
The plaintiff alleges the following under the § 1983

civil rights claims in the complaint:

(1) Unnecessary Bodily

Restraint, (2) Truthful Disclosure, and (3) Access to Court or
Retaliation Claim.

The Court will address each in turn.

1. Unnecessary Bodily Restraint
“The Supreme Court has recognized that involuntarily
civilly committed persons hold a protected liberty interest to be
free from unnecessary bodily restraint.”

Montin v. Gibson, 718

F.3d 752, 754-55 (8th Cir. 2013)(citing Youngberg v. Romeo, 457
U.S. 307, 320-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)).

“It is

fundamental that the state cannot hold and physically punish an
individual except in accordance with due process of law.”
Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d
711 (1977).

The plaintiff alleges that the defendants violated

his right of being free from unnecessary bodily restraints due to
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the fact that he was committed to the LRC.

The plaintiff’s

version of unnecessary bodily restraint is distinguishable from
the right recognized by the Supreme Court in Youngberg and
Ingraham.

The plaintiff has failed to plead facts showing that

the defendants violated a clearly established statutory or
constitutional right.

Therefore, defendants’ motion to dismiss

the unnecessary bodily restraint claim under the doctrine of
qualified immunity will be granted.
2. Truthful Disclosure
The Court is unaware of existing precedent finding a
constitutional right to truthful disclosure.

The plaintiff cites

to various Nebraska cases; however, all the cases involve
negligence and disclosure, and not a clearly established
constitutional or statutory right.

See Fuhrman v. State, 265

Neb. 176, 655 N.W.2d 866 (1963); Simonsen v. Swenson, 104 Neb.
224, 229, 177 N.W. 831, 932 (1920).

Therefore, the plaintiff has

failed to establish that “truthful disclosure” is a
constitutional or statutory right.

Defendants’ motion to dismiss

as to the truthful disclosure claim will be granted.
3. Access to Court or Retaliation Claim
The Supreme Court has established that “prisoners have
a constitutional right of access to the courts.”

Bounds v.

Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
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The Eighth Circuit has recognized the rule “that ‘an act in
retaliation for the exercise of a constitutionally protected
right is actionable under Section 1983 even if the act, when
taken for a different reason, would have been proper.’”

Madewell

v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990)(quoting Freeman
v. Blair, 793 F.2d 166, 178 (8th Cir. 1986)).

The plaintiff’s

claim for retaliation is based on the First Amendment’s
protection of the right to access to courts.

To be successful

under a First Amendment retaliation claim under § 1983, the
plaintiff must show, “(1) he engaged in protected activity, (2)
the government official took adverse action against him that
would chill a person of ordinary firmness from continuing in the
activity, and (3) the adverse action was motivated at least in
part by the exercise of the protected activity.”

Revels v.

Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)(citing Naucke v. City
of Park Hills, 284 F.3d 923 (8th Cir. 2002)).
In this case, the plaintiff has established that he
engaged in protected activity by pleading retaliation for access
to the courts.

As for the last two prongs of the retaliation

analysis, the plaintiff has pleaded facts indicating more than a
sheer possibility that adverse action was taken to chill the
protected activity and in response to the protected activity.

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As

a result, plaintiff’s motion to dismiss for the access to courts
and retaliation claim will be denied at this time.
D. Existence of the Physician-Patient Relationship
The defendants claim that the plaintiff has failed to
establish that a physician-patient relationship arose during his
time at the LRC.

“The existence of a physician-patient

relationship is normally a question of fact; however, the party
claiming the existence of the relationship must allege some facts
to show that the relationship came into existence.”

Gallion v.

Woytassek, 244 Neb. 15, 20 (1993)(citing Flynn v. Bausch, 238
Neb. 61 (1991)).

The physician-patient relationship arises “when

the physician undertakes treatment of the patient.”
Neb. at 64.

Flynn, 238

In this case, the plaintiff has alleged some facts

to show that the physician-patient relationship came into
existence during his time at the LRC.
¶¶ 33-39.

See Filing No. 1 at

Therefore, defendants’ motion to dismiss the medical

malpractice or professional negligence claims on the grounds that
a physician-patient relationship did not exist will be denied.
IV. CONCLUSION
The Court will deny in part and grant in part the
defendants motion to dismiss.

Accordingly,

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IT IS ORDERED:
1) Defendants’ motion (Filing No. 9) is denied in part
and granted in part:
a)

The medical malpractice or professional

negligence claim against the defendants in their official
capacities is dismissed.
b) Defendants’ motion to dismiss the individual
capacity claims for the medical malpractice or professional
negligence claims is denied at this time.
c) Defendants motion to dismiss the Unnecessary
Bodily Restraint and Truthful Disclosure claims is granted.
However, defendants’ motion to dismiss the Access to Courts or
Retaliation Claim is denied.
d) Defendants’ motion to dismiss the medical
malpractice or professional negligence claim on the grounds that
the physician-patient relationship never existed is denied.
DATED this 12th day of January, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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