Michael-Ryan Kruger, Special Administrator of the Estate of Andrea Kruger, Plaintiff - Appellant
State of Nebraska; Robert Houston, Retired Director, Department of Correctional Services, in his official and individual capacities; Cameron White, Behavioral Health Administrator, Department of Correctional Services, in his official and individual capacities; Dr. Randy Kohl, in his official and individual capacities; Department of Corrections, Defendants - Appellees
November 18, 2015
[Copyrighted Material Omitted]
from United States District Court for the District of
Nebraska - Lincoln.
Michael-Ryan Kruger, Special Administrator of the Estate of
Andrea Kruger, Plaintiff - Appellant: Kathleen Marie Neary,
Vincent M. Powers, Vincent M. Powers & Associates, Lincoln,
NE; James C. Zalewski, Demars & Gordon, Lincoln, NE.
State of Nebraska, Robert Houston, Retired Director,
Department of Correctional Services, in his official and
individual capacities, Cameron White, Behavioral Health
Administrator, Department of Correctional Services, in his
official and individual capacities, Dr. Randy Kohl, in his
official and individual capacities, Department of
Corrections, Defendants - Appellees: Stephanie Anne Caldwell,
Assistant Attorney General, David A. Lopez, Assistant
Attorney General, Ryan Post, Assistant Attorney General,
James D. Smith, Assistant Attorney General, Attorney
General's Office, Lincoln, NE.
RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
Jenkins was released from prison in July 2013 after serving
ten and one-half years of a twenty-one-year sentence. About
three weeks after his release, he killed four people in
Omaha, Nebraska, including Andrea Kruger. After Andrea's
death, her husband, Michael-Ryan Kruger, as special
administrator for Andrea's
estate, sued in the District Court of Douglas County,
Nebraska, the State of Nebraska; the Department of
Corrections (department); three department officials; Correct
Care Solutions (CCS), a private contractor the department
retained to provide prison psychiatric services to inmates
including Jenkins; and CCS employee Dr. Natalie Baker. The
department officials named were Robert Houston, the former
department director; Cameron White, Ph.D., the
department's Behavioral Health Administrator; and Dr.
Randy Kohl, the department's Deputy Director of Health
Services (collectively, department officials). In his second
amended complaint, Kruger named only the State of Nebraska
and the department officials.
alleged deliberate indifference, violation of Andrea's
substantive due process rights under the Fourteenth Amendment
to the United States Constitution, see 42 U.S.C. §
§ 1983, 1988(a), and state law negligence claims under
the Nebraska State Tort Claims Act (STCA), Neb. Rev. Stat.
§ 81-8,209 et seq. After the case was removed to federal
court, see 28 U.S.C. § § 1441, 1446, the district
court granted the state and department
officials' motion to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(3), (6). Kruger appeals. We
complaint alleged " the State of Nebraska released
Jenkins, a violent and dangerous criminal, from
incarceration" before he had served his full term even
though " Jenkins repeatedly exhibited signs of serious
mental health issues." According to Kruger, Dr. Baker
evaluated Jenkins numerous times between 2009 and 2013, and
Jenkins repeatedly told Dr. Baker about his delusional and
violent thoughts. Jenkins informed Dr. Baker " he had
been hearing the voice of an Egyptian god who told him to
harm others" and " he often had violent thoughts,
and fe[lt] he w[ould] hurt others when released." Kruger
also pled " Jenkins repeatedly told staff evaluators he
did not want to be released into the community because he
will kill people." Less than six months before
Jenkins's release, Dr. Baker reported Jenkins " had
a mental illness" and he " was an imminent danger
to hurt somebody." She recommended a civil commitment.
Jenkins's family, friends, and Jenkins himself made
repeated requests for civil commitment to the Johnson County
(Nebraska) Attorney. Jenkins stated to department employees
" he wanted to be committed someplace to get mental help
because he would kill people if he did not receive the mental
help and was released."
alleged " [s]ometime in spring of 2013, . . . Houston
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 Kruger, 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
also alleged that in the months before Jenkins's release,
the Johnson County Attorney and the State's Public
Counsel were investigating whether to pursue having Jenkins
civilly committed upon his release. During this time,
department employees met with the Public Counsel to discuss
Jenkins. Dr. Mark Weilage, the department's Assistant
Behavioral Health Administrator, spoke by phone with the
Deputy Johnson County Attorney about Jenkins. No defendants
ever disclosed Dr. Baker's evaluation--which, according
to Kruger, could have provided a medical basis for civil
commitment--during the meeting with the Public Counsel, the
phone call with the Deputy County Attorney, or at any other
charged the defendants with " acting with deliberate
indifference to Andrea Kruger's constitutional
a. Failing to properly enforce, apply, interpret, calculate,
implement and comply with the rules, regulations, policies,
procedures and laws regarding the detainment, sentencing,
detention, incarceration, commitment and release of inmates.
b. Failing to properly comply with rules, regulations,
policies, procedures and/or laws with respect to " good
time" credited to inmates for good behavior while
c. Failing 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 engaged in other
conduct, which violates established policies, procedures,
support of his state law negligence claim against the state,
Kruger alleged the defendants " had a duty to Andrea
Kruger in that . . . [t]he magnitude of the risk of harm to
Andrea Kruger was great as Nikko Jenkins had informed
employees, contractors, officers and/or agents of the . . .
State of Nebraska that he intended to commit murders."
Further, " [t]he State was the only entity that had the
opportunity and ability to exercise care to protect Andrea
Kruger by not releasing Nikko Jenkins," and it was
foreseeable Jenkins would harm Kruger if he were released.
original defendants removed the case to federal court. After
Kruger amended his complaint, the state and the department
officials moved to dismiss, pursuant to Federal Rule of Civil
Procedure 12(b)(1), (6). The district court granted the
motion, deciding the state and the department officials in
their official capacities were immune from suit and Kruger
failed to state a claim. First, the district court rejected
Kruger's assertion that the defendants waived their
immunity defenses by removing the case to federal court. The
district court then dismissed Kruger's § 1983 claims
against the state and the department officials in their
official capacities because suits against state officials in
their official capacity are actually suits against the state
and states are not " persons" who may be sued for
money damages under § 1983. The district court dismissed
Kruger's § 1983 claims against the department
officials in their individual capacities because "
Kruger failed to plead that Andrea [Kruger] was deprived of a
right secured by the Constitution and laws of the United
States," as required to state a claim under § 1983.
district court dismissed Kruger's state law claims
against the department officials in their individual
capacities because the challenged actions undisputedly
were taken " solely within the scope of their
employment," which meant Kruger would have to comply
with the STCA. See Bohl v. Buffalo County, 251 Neb.
492, 557 N.W.2d 668, 673 (Neb. 1997). Finally, the district
court dismissed Kruger's state law claims against the
department officials in their official capacities because
their actions fell within the discretionary function
exception to the STCA's immunity waiver. See Neb. Rev.
Stat. § 81-8,219(1). Kruger appeals.