ADAM FRANCIS v. DOUGLAS COUNTY (2021)

MEMORANDUM AND ORDER

This matter is before the Court on defendant Douglas County's (“Douglas County”) Motion for Summary Judgment (Filing No. 26) on the first cause of action in plaintiff Adam Francis's (“Francis”) Amended Complaint (Filing No. 9). See Fed. R. Civ. P. 56. Douglas County argues the state-law negligence claim that Francis asserts in that first cause of action is barred by sovereign immunity. Francis opposes (Filing No. 29) the motion, arguing “[a] genuine issue of material fact exists as to whether” Douglas County was negligent and it is “not entitled to judgment as a matter of law.” For the reasons stated below, the motion for partial summary judgment is granted.

I. BACKGROUND 1

Douglas County operates the Douglas County Correctional Center (“DCCC”) in Omaha, Nebraska. It contracts with Wellpath, LLC (“Wellpath”) to provide healthcare services for DCCC inmates. Wellpath is responsible for all decisions regarding the delivery of healthcare services at DCCC.

On February 22, 2019, Francis was an inmate at DCCC when another inmate struck him in the face. After the attack, Francis began complaining of severe headaches. He submitted inmate-request forms about the headaches to “medical” by putting them in a specific medical mailbox in his housing unit at DCCC. Wellpath medical personnel ² retrieved the forms from the mailboxes daily, reviewed them, and responded as needed.

On February 23, 2019, a Wellpath medical provider saw Francis and prescribed acetaminophen for two days. Two days later, Francis was seen again and was prescribed ibuprofen for five days. Francis returned again two days later.

On March 5, 2019, Francis was taken to the emergency room at a nearby hospital. He states he received a CT scan and was diagnosed with a concussion. He was advised to follow up with a doctor at DCCC. Francis submitted inmate-request forms regarding his pain medication between March 11, 2019, and March 14, 2019. He was not satisfied with the response.

On December 18, 2020, Francis sued Douglas County and others in state court (Filing No. 1-1) for delaying and denying his access to appropriate medical care. Francis alleged that since his release from DCCC in June 2019, he “has been diagnosed with traumatic brain injury, post concussive disorder, epilepsy, and PTSD, continues to seek medical treatment, and has been prescribed numerous medications.”

Douglas County removed (Filing No. 1) the case to federal court and moved to dismiss (Filing No. 4) Francis's complaint on multiple grounds. When Francis filed an Amended Complaint (Filing No. 9) that addressed at least some of the issues Douglas County identified in its motion to dismiss, the Court denied the motion as moot (Filing No. 12).

On May 14, 2021, Douglas County moved for partial summary judgment on Francis's negligence claim. The matter is now fully briefed and ready for decision.

II. DISCUSSION

A. Standard of Review

On a motion for partial summary judgment, the Court construes the facts in the light most favorable to the nonmoving party and gives him the benefit of all reasonable inferences supported by the record. Shank v. Carleton Coll., 993 F.3d 567, 573 (8th Cir. 2021). Summary judgment is required “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). When “the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Walters v. Weiss, 392 F.3d 306, 310 (8th Cir. 2004).

B. Sovereign Immunity

Douglas County contends Francis's negligence claim is barred by sovereign immunity. “Sovereign immunity is the privilege of the sovereign not to be sued without its consent.” Church v. Missouri, 913 F.3d 736, 742 (8th Cir. 2019) (quoting Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011)); accord In re A.A., 957 N.W.2d 138, 141 (Neb. 2021). Douglas County acknowledges that Nebraska's Political Subdivisions Tort Claims Act (“PSTCA”), Neb. Rev. Stat. § 13-901 et seq., provides a limited waiver of its sovereign immunity for some—but not all—tort claims but maintains Francis's negligence claim falls within the exemption for intentional torts. See, e.g., Edwards v. Douglas County, 953 N.W.2d 744, 750 (Neb. 2021).

Section “13-910(7) of the PSTCA exempts from the waiver of sovereign immunity ‘[a]ny claim arising out of’ ” an assault or battery. Id. (alteration in original) (quoting Neb. Rev. Stat. § 13-910(7)). The Nebraska Supreme Court strictly construes the PSTCA and other waiver statutes “in favor of the sovereign and against waiver.” Id. at 750-51, 756 (“[A] waiver of sovereign immunity is to be found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.”).

In that vein, the Nebraska Supreme Court has interpreted the phrase “arising out of” an assault or battery very broadly “no matter how the tort claim has been framed.” Id. at 756. The intentional-tort “exemption applies whenever an assault ‘is essential to the claim,’ and it bars claims against the government which ‘sound in negligence but stem from [an assault or] battery.’ ” Id. (first quoting Moser v. State, 948 N.W.2d 194, 202 (Neb. 2020); then quoting Britton v. City of Crawford, 803 N.W.2d 508, 517 (Neb. 2011) (alteration in Edwards)). It “encompasses claims that ‘would not exist without an assault or battery,’ and claims which are ‘inextricably linked to [an assault or] battery.’ ” Id. (quoting Moser, 948 N.W.2d at 201-02). Put simply, “when a tort claim against the government seeks to recover damages for personal injury ․ stemming from an assault, the claim necessarily ‘arises out of assault’ and is barred by the intentional tort exemption under the PSTCA.” Id.

Francis very briefly acknowledges the breadth of the intentional-tort exemption under Nebraska law but argues his negligence claim should survive summary judgment because Douglas County's “negligent conduct does not ‘arise out of’ an intentional tort.” Francis misstates the standard.

It is not whether Douglas County's conduct arose out of an intentional tort but whether Francis's claim and his alleged injuries—i.e., traumatic brain injury, post-concussive disorder, and PTSD—arose out of the assault he endured. No doubt they did.

Yet Francis asserts that his allegation of Douglas County's “negligence is separate and distinct from the assault and battery he suffered” and that his negligence “claims stem entirely” from Douglas County's negligence following the attack. That is just not true. Douglas County's alleged negligence may have made things worse, but it was not the primary cause of his injuries. Id. at 753. Although “other factors may have contributed to” Francis's injuries, “but for the battery, there would have been no claim. No semantic recasting of events can alter the fact that the” beating “was the immediate cause of” Francis's injuries and thus, the basis for his negligence claim. Britton, 803 N.W.2d at 518; accord Rutledge v. City of Kimball, 935 N.W.2d 746, 753 (Neb. 2019) (“While [the plaintiff's] claim is characterized as one of negligence, no claim would exist but for [the] alleged battery.”). That claim falls squarely within the intentional-torts exemption to the PSTCA and is barred by sovereign immunity. See Edwards, 953 N.W.2d at 757 (“This presents a classic example of a claim which sounds in negligence but which stems from, and is inextricably linked to, an assault or battery.”); accord KD v. Douglas Cnty. Sch. Dist. No. 001, No. 20-1772, 2021 WL 2446773, at *5 (8th Cir. June 16, 2021) (applying the intentional-tort exemption under Nebraska law).

Francis seeks to avoid this straightforward result by attempting to distinguish his case on the facts. As Francis sees it, Douglas County's cited cases regarding the intentional-tort exemption “are not analogous” because they “involve negligent failures by state officials to prevent a resulting assault and battery, not the failure to provide proper and timely medical care after an assault has taken place.”

While the distinction Francis draws is accurate, it is far from enough to save his negligence claim, particularly given the Nebraska Supreme Court's exacting review of claims of waiver and its broad interpretation of the intentional-tort exemption in recent cases. See, e.g., Edwards, 953 N.W.2d at 755-56 (“The language used by the Legislature in § 13-910(7) is strikingly broad; without qualification or limitation, it exempts from the waiver of sovereign immunity ‘[a]ny claim arising out of assault.’ ”) (alteration in original). In Edwards, the Nebraska Supreme Court rejected the plaintiff's reliance on a similar factual distinction, finding the distinction “immaterial” to the court's analysis of the proper scope of § 13-910(7). Id. at 757. Noting the plaintiff's “argument relie[d] on the sort of semantic recasting of events th[e] court has consistently rejected,” the Nebraska Supreme Court concluded the plaintiff could not “circumvent the assault and battery exemption through ‘artful pleading.’ ” Id. (quoting Jill B. v. State, 899 N.W.2d 241, 265 (Neb. 2017)).

This Court predicts the Nebraska Supreme Court would reach the same conclusion here. See N. Oil & Gas, Inc. v. EOG Res., Inc., 970 F.3d 889, 892 (8th Cir. 2020) (“When there is no state supreme court case directly on point, our role is to predict how the state supreme court would rule if faced with the same issue before us.” (quoting Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010))). Nothing in § 13-910(7)’s “strikingly broad” language suggests the scope of the exemption turns on the timing of the alleged negligence. Edwards, 953 N.W.2d at 755-56 (“It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.”). Francis's cramped interpretation of the phrase “[a]ny claim arising out of assault” or battery likewise finds no support in the Nebraska Supreme Court's recent cases construing and applying the plain language of the intentional-torts exemption. See id. at 752-55; accord KD, 2021 WL 2446773, at *4-5.

Francis's claim for negligence against Douglas County arises from an assault and must be dismissed. Accordingly,

IT IS ORDERED:

1. Defendant Douglas County's motion for partial summary judgment (Filing No. 26) on the first cause of action in plaintiff Adam Francis's Amended Complaint (Filing No. 9) is granted.

2. Francis's negligence claim against Douglas County is dismissed without prejudice.

Dated this 15th day of July 2021.

FOOTNOTES

2.   Wellpath personnel are not Douglas County employees or agents.

Robert F. Rossiter, Jr. Chief United States District Judge