Bumann v. Barr

JUSTIN BUMANN, Petitioner, v. TOM BARR, Hospital Administrator;and KRIS BOE SIMMONS, Clinical Program Manager; Respondents.

8:19CV552

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 19, 2021

MEMORANDUM AND ORDER

This matter is before the court on Respondents' Motion for Summary Judgment. (Filing 16.) Respondents argue that Petitioner Justin Bumann's Amended Petition for Writ of Habeas Corpus (filing 7) must be dismissed because Bumann has failed to exhaust his state court remedies as set forth in 28 U.S.C. § 2254(b)(1)(A), has procedurally defaulted his claims, and has failed to state federal law claims upon which relief can be granted. (Filing 16.) In support of their Motion, Respondents filed a Brief (filing 21) and state court records (filings 17 & 19). Petitioner has not responded. This matter is fully submitted for disposition. For the reasons set forth below, the Motion for Summary Judgment will be granted, and Petitioner's Amended Petition for Writ of Habeas Corpus (filing 7) will be dismissed without prejudice.

I. SUMMARY JUDGMENT PROCEDURE IN HABEAS PROCEEDINGS

Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment motions. Rule 56 applies to habeas proceedings pursuant to Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.") and Fed. R. Civ. P. 81(a)(4) ("These rules apply to proceedings for habeas corpus and for quo warranto to the extent that the practice in those proceedings: (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions."). However, "summary judgment principles apply on federal habeas only to the extent they do not conflict with habeas rules." Brian R. Means, Federal Habeas Manual § 8:36.

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis for the motion and must identify those portions of the record which the moving party believes show the lack of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does so, the burden then shifts to the nonmoving party, who "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, summary judgment should be granted." Smith-Bunge v. Wisconsin Cent., Ltd., 946 F.3d 420, 424 (8th Cir. 2019).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court's local rules further specify that "[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law." NECivR 56.1(a)(1). "The statement of facts should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph." NECivR 56.1(a)(2) (underlining in original). In addition, the court's local rules provide that "[a]n affidavit must identify and authenticate any documents offered as evidence." NECivR 7.1(a)(2)(C); see also NECivR 56.1 ("Unless this rule states otherwise, the procedures of Nebraska Civil Rule 7.1 apply to summary judgment motions.").

II. EVIDENCE PRESENTED

In this case, Respondents' brief in support of their Motion for Summary Judgment contains a separate, 40-paragraph statement of material facts with proper references to the record. (Filing 21 at CM/ECF pp. 4-12.) The documents referenced include certified copies of excerpts from Bumann's commitment proceedings before the Mental Health Board of the Seventh Judicial District (filings 19-1, 19-2 & 19-3), certified copies of filings in Bumann's state habeas corpus proceeding (filings 17-2 & 17-3), and a declaration from the Clerk of the District Court of Madison County, Nebraska (filing 17-1). Bumann has not responded to Respondents' Motion for Summary Judgment. While Bumann's failure to file an opposing brief is not considered a confession of the motion, see NECivR 7.1(b)(1)(C), his failure to controvert Respondents' statement of material facts is considered an admission for purposes of deciding the motion. See NECivR 56.1(1)(b)(1); Fed. R. Civ. P. 56(e)(2) ("If a party . . . fails to properly address another party's assertion of fact as requiredby Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . .").

III. UNCONTROVERTED FACTS

The following facts are not in dispute:

1. Bumann is currently a patient committed at the Norfolk Regional Center. (See Filing 7 at CM/ECF p. 1 (Place of Confinement: "Norfolk Regional Center."))

2. On January 28, 2011, Bumann was convicted of Criminal Attempt - Sexual Assault in the 1st degree, a Class III Felony, in Madison County District Court, Nebraska, Case No. CR08-104, and was sentenced to an indeterminate term of not less than three years nor more than five years imprisonment. (Filing 19-3 at CM/ECF pp. 2, 5, 10-11.)

3. On January 28, 2011, Bumann was also convicted of Criminal Attempt - Possession of Child Pornography, a Class I Misdemeanor, in Madison County District Court, Nebraska, Case No. CR08-114, and was sentenced to an indeterminate term of not less than one year nor more than one year imprisonment, to be served consecutively to the sentence in Case No. CR08-104. (Id. at CM/ECF pp. 2, 6-7, 12-13.)

4. On March 29, 2011, Bumann was convicted of Sexual Assault, Use of Electronic Communication Device, a Class ID Felony, in Knox County District Court, Nebraska, Case No. CR10-12, and was sentenced to an indeterminate term of not less than seven years nor more than nine years imprisonment, to be served consecutively to any other offense being served out of the State of Nebraska. (Id. at CM/ECF pp. 2, 8-9, 14-15.)

5. On or about July 22, 2019, the Madison County Attorney filed a Petition and Request for a Custody Warrant before the Mental Health Board in In the Interest of Justin T. Bumann, Alleged to be a Dangerous Sex Offender, Case No. 22-45, requesting that the Mental Health Board enter an order committing Bumann to inpatient hospitalization pursuant to Nebraska's Sex Offender Commitment Act ("SOCA"), Neb. Rev. Stat. § 71-1201 to 71-1226. (Id. at CM/ECF pp. 1-4.)

6. The petition alleged, among other things, that Bumann is a dangerous sex offender, is a person with a mental illness and/or personality disorder which makes him likely to engage in repeated acts of sexual violence, has been convicted of one or more sex offenses, and is substantially unable to control his criminal behavior; and that neither voluntary hospitalization nor other treatment alternatives less restrictive of his liberty than a Mental Health Board ordered treatment disposition are available or would suffice to prevent the harm described in Neb. Rev. Stat. § 83-174.01. (Id. at CM/ECF p. 1.)

7. Attached to the petition were the court documents related to Bumann's three sex offenses detailed above (id. at CM/ECF pp. 5-15), two affidavits from Dr. Agnes Stairs, Ph.D. (id. at CM/ECF pp. 16-17), and a psychological evaluation performed by Dr. Stairs, dated January 22, 2019 (id. at CM/ECF pp. at 18-34).

8. Dr. Stairs' affidavits reflected that she is a psychologist, duly licensed in the State of Nebraska, and is experienced in sex offender risk assessments. (Id. at CM/ECF pp. 16-17.)

9. In one Affidavit, Dr. Stairs opined that, after completing an evaluation of Bumann, it was her professional opinion that he is a dangerous sex offender, as defined in Neb. Rev. Stat. § 83-174.01. (Id. at CM/ECF p. 16.)

10. In another affidavit, Dr. Stairs opined that, after conducting a review to determine the least restrictive and most appropriate treatment setting for Bumann based on risk, needs, and treatment responsivity issues, it was her professionalopinion that, based on her expertise in sex offender risk assessment and treatment, as well as the information available to her about treatment options, Bumann would be best served in an inpatient setting to address the issues outlined in his evaluation (id. at CM/ECF pp. at 18-34), and that if the Mental Health Board found Bumann to be a Dangerous Sex Offender, the least restrictive treatment at that time would be inpatient treatment. (Id. at CM/ECF p. 17.)

11. On July 25, 2019, a hearing was held before the Mental Health Board in In the Interest of Justin T. Bumann, Alleged to be a Dangerous Sex Offender, Case No. 22-45, where Bumann acknowledged receipt of a copy of the petition, notice of hearing, and list of rights. (Id. at CM/ECF p. 62.) The matter was then continued pending certain motions expected to be filed on behalf of Bumann. (Id.)

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