The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-3111

 

Thomas J. Morstad, *

*

Appellant, *

*

v. *

* Appeal from the United States

Department of Corrections and * District Court for the

Rehabilitation, a department of the * District of North Dakota.

State of North Dakota; Tim Schuetzle, *

individually; Department of Health *

and Human Services, a department of *

the State of North Dakota; Myron *

Veenstra, individually; *

*

Appellees. *

 

Submitted: March 13, 1998

 Filed: June 26, 1998

 

Before BEAM and HEANEY, Circuit Judges, and KOPF, District Judge. 1

 

HEANEY, Circuit Judge.
2

Thomas Morstad, a former inmate at the North Dakota State Penitentiary (NDSP),

was assaulted by a fellow inmate. Alleging violations of 42 U.S.C. § 1983 and North

Dakota state law, Morstad brought claims against the North Dakota Department of

Corrections and Rehabilitation (DOCR); the North Dakota Department of Health and

Human Services (DHHS); Timothy Schuetzle, individually and in his official capacity as

warden of the NDSP; and Myron Veenstra, individually and in his official capacity as the

court-appointed psychologist who evaluated Morstad and testified at Morstad’s probation

revocation hearing. Morstad settled his claim against Schuetzle in his individual capacity.

With regard to his remaining claims, the district court dismissed Morstad’s claims against

the DOCR, DHHS, and Schuetzle and Veenstra in their official capacities for failure to

state a claim and granted Veenstra’s motion for summary judgment in his individual

capacity. We affirm the district court because (1) the Eleventh Amendment bars

Morstad’s suit against the DOCR, DHHS, and Schuetzle and Veenstra in their official

capacities; (2) Veenstra’s alleged negligence does not establish § 1983 liability; (3)

Veenstra enjoys absolute immunity for his testimony and reports submitted to the court;

and (4) Veenstra’s actions do not, as a matter of law, establish the required causal

connection to Morstad’s injuries.

I.

On March 20, 1992, Morstad was convicted of gross sexual imposition for

improper sexual contact with his nine-year-old daughter. Morstad maintained his

innocence of the charge throughout the trial. On March 31, 1992, he received a deferred

sentence of four years of supervised probation, during which time he must have

successfully completed an evaluation and undergone treatment in a sexual offenders

program. The court appointed Dr. Myron Veenstra, a DHHS psychologist, to conduct

an evaluation of Morstad. Veenstra administered the Minnesota Multiphasic Personality

Inventory II, the Multiphasic Sex Inventory, and a child abuse potential inventory.

Veenstra completed Morstad’s evaluation on January 18, 1993, and diagnosed him with

“pedophilia, non-exclusive.” At Morstad’s probation revocation
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hearing, Veenstra explained that this diagnosis meant that Morstad had molested, or had

fantasies of molesting, a pre-pubescent child. Veenstra testified that Morstad adamantly

denied having had any sexual contact with his daughter and, in order to qualify for

outpatient treatment, Morstad would have to admit some degree of culpability. Stating

that he was unaware of any outpatient programs for sex offenders who deny culpability,

Veenstra gave his opinion that the only suitable method of treating Morstad was through

a sexual offenders program within prison, where he would be in a secure environment.

Based upon Dr. Veenstra’s testimony, Morstad’s probation was revoked and, on

June 3, 1993, the court sentenced him to four years incarceration and two years

probation. On the morning of June 4, 1993, the day Morstad was to begin serving his

prison term at the NDSP, he attempted suicide and was admitted to the North Dakota

State Hospital. On July 27, 1993, Morstad petitioned for post-conviction relief which

was denied. Morstad appealed the decision to the North Dakota Supreme Court. On

August 26, 1993, Morstad was transferred to the NDSP. That afternoon, Morstad was

assaulted by another inmate, Darrell Redpaint. Redpaint, who had a history of violent

behavior, attacked Morstad with a baseball bat, causing permanent brain damage.

On September 20, 1993, the trial court granted Morstad’s request for a reduced

sentence and commuted the remainder of his sentence. On June 15, 1994, the North

Dakota Supreme Court reversed the revocation of probation because requiring Morstad

to admit guilt as a part of his probation was ambiguous. See Morstad v. State of North

Dakota, 518 N.W.2d 191, 194 (N.D. 1994). On August 23, 1995, Morstad filed suit in

federal district court, claiming that the DOCR and Schuetzle violated his right to be free

from cruel and unusual punishment under the Eighth Amendment and his right to due

process under the Fourteenth Amendment. He further claimed that Veenstra was

negligent in providing Morstad treatment that led to the revocation of his probation, his

incarceration, and his subsequent assault.
4

Citing the Eleventh Amendment’s bar to suits against a state or state official acting

in his or her official capacity, the district court issued an order on March 8, 1996,

dismissing Morstad’s claims against the DHHS, DOCR, and Schuetzle and Veenstra in

their official capacities. See Morstad v. Department of Corrections, No. A2-95-122, at

4-7 (D.N.D. Mar. 8, 1996) (order granting defendants’ 12(b)(6) motion). On February

12, 1997, the district court granted Veenstra’s motion for summary judgment because (1)

Veenstra’s allegedly negligent acts did not support a § 1983 action; (2) Veenstra was

entitled to absolute immunity; and (3) Veenstra’s actions did not cause Morstad’s

injuries. See Morstad v. Department of Corrections, No. A2-95-122, at 4-7 (D.N.D. Feb.

12, 1997) (order granting Veenstra’s summary judgment motion). 

On appeal, Morstad argues that the district court erred by (1) dismissing his

complaint against the DOCR, DHHS, and Schuetzle and Veenstra in their official

capacities; and (2) granting summary judgment in favor of Veenstra for his individual

liability.

II.

We first address whether the district court properly dismissed Morstad’s claims

against the DHHS, DOCR, and Schuetzle and Veenstra in their official capacities. We

review de novo a district court’s grant of a motion to dismiss for failure to state a claim.

See Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998).

Granting dismissal is proper only when “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.” Hafley

v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotation marks omitted).

As Morstad concedes, the Eleventh Amendment bars suit against the state or state

officials acting in their official capacity. See, e.g., Kentucky v. Graham, 473 U.S.
On October 15, 1997, we agreed to consider a Rule 38 motion for damages and 2

costs as part of this appeal. See Fed. R. App. P. 38. The DOCR and Schuetzle argue

that Morstad’s Eleventh Amendment appeal is frivolous and they are therefore entitled

to double costs and damages in the amount of $2,500. In applying Rule 38, we may

award such relief if “the arguments [Morstad] advance[s] for reversal are clearly

lacking in merit and frivolous.” United States v. Gerards, 999 F.2d 1255, 1256-57 (8th

Cir. 1993). While we consider the case law construing Eleventh Amendment immunity

well settled, we cannot construe Morstad’s argument for a public policy exception to

such immunity as clearly lacking in merit or frivolous. We therefore deny the Rule 38

motion.

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159, 169 (1985). Morstad does not challenge defendants’ assertion that the DHHS,

DOCR, or Schuetzle and Veenstra acting in their official capacities are state actors. Nor

does Morstad suggest that the state waived its Eleventh Amendment immunity. Rather,

he argues that, under Graham, when a state entity is the “moving force” behind the

deprivation of a federal right, the entity is liable under § 1983. We disagree. 

Graham clearly indicates that, absent a waiver, the Eleventh Amendment

immunizes the state and its officials acting in their official capacities from § 1983

liability. See id. Alternatively, Morstad argues that public policy requires an exception

to this principle “when the circumstances are incredibly egregious.” (Appellant’s Br. at

13.) Even if public policy dictated such an exception, a question we decline to address,

the circumstances of this case do not warrant such an exception. Consequently, we

affirm the district court’s dismissal of Morstad’s claims against the DHHS, DOCR, and

Schuetzle and Veenstra in their official capacities.2

We now turn to whether the district court erred in granting Veenstra’s summary

judgment motion. In our de novo review of a district court’s grant of summary judgment,

we use the same standards as the district court. See Davenport v. Riverview Gardens

Sch. Dist., 30 F.3d 940, 944 (8th Cir. 1994). We affirm where, after viewing the

evidence in the light most favorable to the nonmoving party, there is no genuine issue of

material fact and judgment is appropriate as a matter of law. See id.
6

Morstad argues that the district court erred by concluding that the negligent actions

of an official, such as those allegedly committed by Veenstra, do not support § 1983

liability. We disagree. “Our Constitution . . . does not purport to supplant traditional tort

law in laying down rules of conduct to regulate liability for injuries that attend living

together in society.” Daniels v. Williams, 474 U.S. 327, 332 (1986). Even if Veenstra

had a duty to find an outpatient program that would not require Morstad to admit

culpability, we find no support for the proposition that Veenstra’s failure to find such a

program would constitute a deprivation of a federal right. Morstad’s remedy for

Veenstra’s alleged negligence, if there is any, lies in tort. Because we agree with the

district court’s determination that Morstad’s negligence claim lacked constitutional

dimension, we affirm.

Morstad next argues that the district court erred by determining that Veenstra

enjoyed absolute immunity for the testimony and reports Veenstra submitted to the court.

Our case law dictates that those “perform[ing] functions essential to the judicial process”

enjoy absolute immunity against suit based on those actions. Moses v. Parwatikar, 813

F.2d 891, 892 (8th Cir. 1987) (court-appointed psychiatrist performing competency

examination enjoyed absolute immunity); see also Myers v. Morris, 810 F.2d 1437, 1467

(8th Cir. 1987). Because the court directed Veenstra to evaluate Morstad and to testify

at Morstad’s probation revocation hearing, we conclude that Veenstra was performing

functions essential to the judicial process. We therefore affirm the district court’s

determination that Veenstra was entitled to absolute immunity.

Finally, Morstad challenges the district court’s ruling that Veenstra’s actions did

not cause Morstad’s injuries. Although its summary judgment order is unclear on the

issue, we assume the district court intended its analysis to dispose of Morstad’s state law

claims. We agree with the district court that Veenstra did not revoke Morstad’s

probation and, even if his testimony or reports could be construed as causing the

revocation, that no reasonable juror could find Veenstra’s actions to have proximately
7

caused Morstad’s physical injuries. In other words, Veenstra’s testimony and reports did

not cause Morstad to be hit over the head with a baseball bat. Therefore, we affirm the

district court’s determination that Morstad’s actions did not cause Morstad’s injuries.

III.

For the aforementioned reasons, we affirm the district court’s orders granting the

motions to dismiss for failure to state a claim and for summary judgment.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.