United States District Court, D. Nebraska
MICHAEL-RYAN KRUGER, Special Administrator of the Estate of Andrea Kruger, Plaintiff,
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
For Michael-Ryan Kruger, Special Administrator of the Estate of Andrea Kruger estate of Andrea Kruger, Plaintiff: James C. Zalewski, DEMARS, GORDON LAW FIRM, Lincoln, NE; Kathleen M. Neary, Vincent M. Powers, POWERS LAW FIRM, Lincoln, NE.
For 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, Randy Kohl, Dr., in his official and individual capacities, Department of Corrections, Defendants: Blake E. Johnson, David A. Lopez, James D. Smith, Ryan S. Post, Stephanie A. Caldwell, ATTORNEY GENERAL'S OFFICE - NEBRASKA, Lincoln, NE.
LYLE E. STROM, Senior United States District Judge.
This matter is before the Court on the motion (Filing No. 46) of the four 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). After review of the motions, briefs, indices of evidence, and relevant case law, the Court finds as follows.
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 tat 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. All defendants moved for dismissal. 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 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. Filing No. 44, at 1. 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, 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).
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." Id. at 679. 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. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 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 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
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. Filing No. 48, at 3. The plaintiff argues that the Supreme Court's precedent in Lapides v. Board of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (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 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 Sewer 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 ...