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Holloway v. State

Supreme Court of Nebraska

March 11, 2016


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Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge.

Terrence J. Salerno and Danny C. Leavitt for appellant.

Jonathan J. Papik and Andrew D. Strotman, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee Correct Care Solutions.

Douglas J. Peterson, Attorney General, David A. Lopez, Ryan S. Post, and Andrew T. LaGrone, Senior Certified Law Student, for appellees State of Nebraska, Department of Correctional Services, Robert Houston, Cameron White, and Randy Kohl.

CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ., and BISHOP, Judge. HEAVICAN, C.J., and WRIGHT, J., not participating.


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Cassel, J.


After being shot by Nikko Jenkins shortly after his release from prison, Shamecka Holloway sued the State of Nebraska and others. She claimed that the State and one of its contractors were negligent in failing to provide Jenkins with adequate mental health treatment and failing to seek mental health commitment prior to his release. The district court granted the defendants' motions to dismiss without allowing Holloway to proceed with discovery. Because whether to seek commitment

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is discretionary, the State and its employees were entitled to immunity from suit. And because Holloway failed to plead sufficient facts to show that the contractor was liable, the court did not err in dismissing the complaint. We affirm.


Jenkins was sentenced to serve 21 years of incarceration with the Nebraska Department of Correctional Services (Department). During Jenkins' incarceration, he engaged in numerous violent activities and other conduct which violated the Department's rules, policies, and procedures. He repeatedly exhibited signs of a serious mental health problem and repeatedly requested treatment for such problem.

On July 30, 2013, after Jenkins had served 101 1/2 years of his sentence, the State released him from incarceration. On August 24, Jenkins shot Holloway as she walked in her front yard in Omaha, Nebraska. As a result, Holloway suffered permanent damage and incurred medical bills.

Holloway sued the State; the Department; Robert Houston, retired director of the Department; Cameron White, behavioral health administrator for the Department; Correct Care Solutions (CCS); Dr. Natalie Baker; and Dr. Randy Kohl (collectively the appellees). She sued Houston, White, Baker, and Kohl in their official and individual capacities.

According to the complaint, the State had a number of responsibilities with respect to inmates. The responsibilities included operating certain correctional facilities in Nebraska, assessing and evaluating inmates in order to determine the need for mental health commitment or other appropriate mental health services, and providing adequate advance notice to members of the public regarding the release of a dangerous individual who threatened serious bodily harm to others.

CCS contracted with the State to provide medical services for inmates incarcerated in the facility in Tecumseh, Nebraska. CCS employees and agents evaluated and treated Jenkins while he was held at the Tecumseh correctional facility. Baker, a physician who worked at the Tecumseh facility under the direction of the Department and CCS, was largely responsible for the mental health care and treatment given to Jenkins. Holloway alleged that Baker personally interviewed and evaluated Jenkins during Jenkins' incarceration, that Baker failed to take any steps to have Jenkins evaluated at the Lincoln Regional Center, and that Baker allowed Jenkins to be released from prison. According to the complaint, Jenkins told Baker and staff evaluators that he would hurt others upon his release.

Holloway claimed that at all times alleged in her complaint, Houston, White, Baker, and Kohl " were acting within the scope and course of their employment with their various employers." She further alleged that those individuals " evidenced a deliberate indifference to the mental health needs" of Jenkins " when they were aware of facts which created the likelihood that Jenkins, when released, presented a substantial risk of serious bodily harm to the citizens of Nebraska, and specifically to [Holloway]." Holloway claimed that the individual defendants violated the Department's policies or customs related to the treatment, evaluation, and incarceration of inmates exhibiting symptoms of a mental illness.

According to the complaint, Houston directed White to take certain actions. At Houston's direction, White was to reduce the duration of an inpatient treatment program by 4 months and change the clinical recommendations of hundreds of inmates

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from inpatient to outpatient treatment. As a result, the recommendation for Jenkins was changed from inpatient treatment to outpatient treatment, which accelerated his release from the Department. Holloway also alleged that the State failed to properly calculate and/or apply " good time" for Jenkins in ordering his release on July 30, 2013.

Holloway claimed that she suffered permanent mental and emotional damages as a proximate result of the appellees' acts of omission and commission. She alleged that the State had a duty to her and to the public in Omaha, insofar as the State was aware that Jenkins posed a risk to all citizens of Omaha. She claimed that the State knew or should have known of the foreseeability of harm to her once Jenkins was released. According to Holloway, Baker and CCS owed a duty to the citizens of Nebraska to correctly evaluate and treat all inmates under their care and that they breached their duty in their treatment and release of Jenkins.

On September 2, 2014, the appellees filed motions to dismiss. One motion was brought on behalf of the State, Houston (official and individual capacities), White (official and individual capacities), Baker (official capacity), and Kohl (official and individual capacities). That motion asserted that the court lacked subject matter jurisdiction over the case and that the complaint failed to state a claim upon which relief could be granted. The other motion to dismiss, brought by CCS, moved to dismiss the complaint with prejudice for failure to state a claim upon which relief could be granted. Holloway later ...

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