Norris v. Nebr. Dept. of Corr. Srvcs. et al

Filing 40

MEMORANDUM AND ORDER that Defendant Small is dismissed from this matter without prejudice for Plaintiff's failure to complete service of process before the time deadline set forth in the court's prior order (Filing No. 11 ). The Motion t o Dismiss (Filing No. 29 ) Plaintiff's state-law negligence claim filed by defendants Frakes, Kohl, Lewein, Wees, Schmoker, Ogden, Antley, and Wesley in their individual capacities is granted, and such claim is dismissed without prejudice to reassertion in state court. Plaintiff's Objection (Filing No. 31 ) to the defendants' Motion to Dismiss is denied. Plaintiff's Motion for Default Judgment (Filing No. 34 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HEATH NORRIS,

)
)
Plaintiff,
)
)
v.
)
)
SCOTT FRAKES, DR. RANDY
)
KOHL, BARBARA LEWEIN, CURT )
WEES, OMAHA CORR. CNTR.
)
MEDICAL STAFF, including and all )
other unnamed John and Jane Does
)
known and unknown, D. SMALL, C. )
SCHMOKER, DR. KATHLEEN
)
OGDEN, M. ANTLEY, and M.
)
WESLEY,
)
)
Defendants.
)
)

8:16CV187

MEMORANDUM
AND ORDER

After initial review of Plaintiff’s Complaint, the court ordered that two of
Plaintiff’s claims may proceed to service of process against defendants Frakes, Kohl,
Lewein, Wees, Small, Schmoker, Ogden, Antley, and Wesley in their individual
capacities (the “individual defendants”), in addition to unidentified members of the
Omaha Correctional Center (“OCC”) medical staff, in their individual capacities, who
had direct involvement in Plaintiff’s post-surgery treatment: (1) deliberate
indifference to Plaintiff’s serious medical needs; and (2) negligence under state law.
(Filing No. 11 at CM/ECF pp. 10-12.) Summonses have been returned executed upon
all of the identified individual defendants except defendant Small. (Filing Nos. 1422.)
The individual defendants (except defendant Small) have filed a Motion to
Dismiss (Filing No. 29) pursuant to Fed. R. Civ. P. 12(b)(1), asserting that this court
lacks subject-matter jurisdiction over Plaintiff’s state-law negligence claim. Plaintiff

has filed an Objection (Filing No. 31) to the defendants’ motion, as well as a Motion
for Default Judgment (Filing No. 34) against all defendants for failure to file answers
to Plaintiff’s Complaint.
State-Law Negligence Claim
The individual defendants move to dismiss Plaintiff’s state-law negligence
claim pursuant to the Nebraska State Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209,
et seq., which provides in part: “The State of Nebraska shall not be liable for the torts
of its . . . employees, and no suit shall be maintained against the . . . employee . . . on
any tort claim except to the extent, and only to the extent, provided by the State Tort
Claims Act. The Legislature further declares that it is its intent and purpose through
such act to provide uniform procedures for the bringing of tort claims against . . . an
employee of the state and that the procedures provided by such act shall be used to the
exclusion of all others.” § 81-8,209. A “tort claim” under the Act is “any claim against
an employee of the state for money only on account of . . . personal injury . . . caused
by the negligent or wrongful act or omission of the employee while acting within the
scope of his or her employment.” § 81-8,210(4).
Because Plaintiff’s claims are based on actions taken by prison officials during
the course and scope of their employment, the Nebraska State Tort Claims Act bars
Plaintiff’s negligence claim against such officials in their individual capacities. See
Bohl v. Buffalo County, 557 N.W.2d 668 (Neb. 1997) (if off-duty police officer was
acting within scope of employment, Tort Claims Act would apply and bar suit against
officer in his individual capacity); Bojanski v. Foley, 798 N.W.2d 134, 144 (Neb. App.
2011) (State Tort Claims Act provides immunity when defendant is sued in his
individual capacity, but is acting within the scope of his employment or office, unless
such immunity has been waived); Kruger v. Nebraska, 90 F. Supp. 3d 874, 881 (D.
Neb. 2015), aff’d, 820 F.3d 295 (8th Cir. 2016) (whether plaintiff could assert statelaw negligence claims against state correctional officers in their individual capacities
depended upon whether defendants’ tortious conduct occurred while defendants were
2

acting within scope of their employment; if defendants acted within scope of their
employment, plaintiff “would have had to comply with the requisites set out in the
State Tort Claims Act”; because parties did not dispute that actions were taken within
scope of defendants’ employment, court dismissed claims against defendants in their
individual capacities); Guerry v. Frakes, No. 8:15CV323, 2016 WL 4991501, at *3
(D. Neb. Sept. 16, 2016) (pursuant to State Tort Claims Act, state-law claims against
prison officials in their individual capacities dismissed because plaintiff’s claims were
based on conduct occurring during the course and scope of their employment).
Therefore, Plaintiff’s state-law negligence claims against the defendants in their
individual capacities will be dismissed without prejudice.
Motion for Default Judgment
Plaintiff has filed a Motion for Default Judgment (Filing No. 34) because the
defendants have not yet filed an answer. Plaintiff’s motion shall be denied because
the defendants have filed a timely Motion to Dismiss (Filing No. 29) prior to filing an
answer, as they are required to do by Fed. R. Civ. P. 12(b).
IT IS ORDERED:
1.
Defendant Small is dismissed from this matter without prejudice for
Plaintiff’s failure to complete service of process before the time deadline set forth in
the court’s prior order (Filing No. 11).
2.
The Motion to Dismiss (Filing No. 29) Plaintiff’s state-law negligence
claim filed by defendants Frakes, Kohl, Lewein, Wees, Schmoker, Ogden, Antley, and
Wesley in their individual capacities is granted, and such claim is dismissed without
prejudice to reassertion in state court.

3

3.
Plaintiff’s Objection (Filing No. 31) to the defendants’ Motion to
Dismiss is denied.
4.

Plaintiff’s Motion for Default Judgment (Filing No. 34) is denied.

DATED this 7th day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4