Holloway v. State

293 Neb. 12

875 N.W.2d 435

Shamecka Holloway, appellant,

v.State of Nebraska et al., appellees.

No. S–15–280.

Supreme Court of Nebraska.

Filed March 11, 2016.

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

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

Douglas J. Peterson, Attorney General, David A. Lopez, Ryan S. Post, Lincoln, 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.

Cassel, J.

I. INTRODUCTION

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 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.

II. BACKGROUND

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 10½ 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 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 moved to dismiss Baker, alleging that Jenkins' release was not the result of negligence or lack of skill by Baker. The court dismissed the complaint as to Baker.

On September 4 and 5, 2014, the appellees moved for a protective order staying discovery pending resolution of the motions to dismiss. According to the motions, the day after the appellees filed their motions to dismiss, Holloway served 20 interrogatories, 220 requests for admission, and 25 requests for production upon the appellees.

On March 11, 2015, the district court entered an order granting the remaining appellees' motions to dismiss. The court found Holloway's motion to compel discovery to be moot, because it granted the motions to dismiss with prejudice.

The district court first considered the claims against the State and the remaining individual defendants. The court stated that the allegations of the complaint against Houston, White, and Kohl related only to the acts of those individuals within the scope and course of their employment. Thus, it dismissed the claims against them in their individual capacities. The court next considered the applicability of the discretionary function exception to the waiver of sovereign immunity contained in the State Tort Claims Act (Act).¹ The court reasoned that the State had discretion in applying Jenkins' "good time" credits and in choosing not to civilly commit him, focusing on the "may" language used in the good time and civil commitment statutes.² Because the court concluded that the discretionary function exception applied, it dismissed the claims against the State, the Department, Houston, White, and Kohl.

The district court also dismissed the claim against CCS. The court found that Holloway failed to state a negligence claim.

The court observed that the only allegations in the complaint pertaining to Jenkins' being improperly released were directed at Baker's negligence in failing to properly treat and evaluate Jenkins and that Holloway admitted Baker properly discharged her duties with respect to Jenkins. The court noted that Holloway did not allege a special relationship existed between CCS and Jenkins and that CCS never exerted control over Jenkins.

Holloway filed a timely appeal, and we granted the remaining appellees' petition to bypass the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

Holloway assigns that the district court erred in (1) granting the remaining appellees' motions to dismiss, (2) failing to allow her case to proceed with discovery, (3) finding that the discretionary function exception was applicable, (4) determining that the individual employees exercised due care in the performance of their duties, and (5) concluding that the dismissal of the direct action against Baker precluded an action based upon respondeat superior against CCS.

IV. STANDARD OF REVIEW

A district court's grant of a motion to dismiss is reviewed de novo.³ An appellate court reviews de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing all reasonable inferences for the nonmoving party.⁴ Statutory interpretation presents a question of law.⁵ In cases where the facts are undisputed, the application of the discretionary function exemption of the Act presents a question of law.⁶

Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.⁷

V. ANALYSIS

1. DISCRETIONARY FUNCTION EXCEPTION

Although Holloway's complaint alleged that the State was negligent in two respects, she limits her argument concerning the applicability of the Act's discretionary function exception to a decision to seek a mental health commitment. Holloway's complaint...