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 S tate Penitentiary (NDSP),

was assaul ted by a fellow inmate. Alleging violations of 42 U.S.C. § 1983 and North Dakota st ate law, Morstad brought claims against the North Dakota Department o f Correctio ns and Rehabilitation (DOCR); the North Dakota Department of Health an d Human Services (DHHS); Timothy Schuetzl e, individually and in his official capacity as warden of the NDSP; and Myron Veenstra, individually and in hi s official capacity as the court-appointed psychologist who evaluated Morstad and testified at Mors tad’s probation revocation hearing. Morstad settled his claim against Schuetzle in his indiv idual capacity. With regard to his remaining claims, the district court dismissed Mo rstad’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 individua l capacity. We affirm the district court because (1) the Eleventh Amendment bar s Morstad’s suit against the DOCR, DHHS, and Schuetzle and Veenstra in their officia l capacities ; (2) Veenstra’s alleged negligence does not establish § 1983 liability; (3 ) Veenstra enjoys absolut e 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 causa l connection to Morstad’s injuries.

I.

On March 20, 1992, Morstad was convicted of gross sexual imposition fo r im proper sexual contact with his nine-year-old daughter. Morstad maintained hi s 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 hav e
succe ssfully completed an evaluation and undergone treatment in a sexual offender s program. The court appointed Dr. Myron Veenstra, a DHHS psychologist, to conduct an evaluation of Morstad. Veenstra administered the Minnesota Multiphasic Personality Invent ory II, the Multiphasic Sex Inventory, and a child abuse potential inventory

. Veenstra completed Morstad’s ev aluation on January 18, 1993, and diagnosed him with “pedophilia, non-exclusive.” At Morstad’s probation revocation3

hearing, Veenstra explained that this diagnosis meant that Morstad had molested, or had fantasies of molesting, a pre-pubescent child. Veenstr a testified that Morstad adamantly den ied having had any sexual contact with his daughter and, in order to qualify fo r outp atient 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, 19 93, the court sentenced him to four years incarceration and two year s proba tion. On the morning of June 4, 1993, the day Morstad was to begin serving hi s prison term at the NDSP, he attempted suicide and was admitted to the North Dakot a State H ospital. On July 27, 1993, Morstad petitioned for post-conviction relief whic h

was denied. Morstad appealed the decision to the North Dakota Supreme Court. O n Augu st 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 reduce d sentence a nd commuted the remainder of his sentence. On June 15, 1994, the Nort h Dakota Supreme Co urt reversed the revocation of probation because requiring Morstad to admi t guilt as a part of his probation was ambiguous. See Morstad v. State of North Dakota , 518 N.W.2 d 191, 194 (N.D. 1994). On August 23, 1995, Morstad filed suit in federal district court, claimin g that the DOCR and Schuetzle violated his right to be free fr om cruel and unusual punishment under the Eighth Amendment and his right to du e process under the Fourteenth Amendment. He further claimed that Veenstra wa s 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 Mors tad’s claims against the DHHS, DOCR, and Schuetzle and Veenstra in their officia

l 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) Veenst ra’s allegedly negligent acts did not support a § 1983 action; (2) Veenstra wa s entitl ed 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 ap peal, Morstad argues that the district court erred by (1) dismissing hi s complaint against the DOCR, DHHS, and Schuetzle and Veenstra in their officia l capacitie s; and (2) granting summary judgment in favor of Veenstra for his individua l liability.

II.

We first address whether the district court properly dismissed Morstad’s claim s against the DHHS, DOCR, and Schuetzle and Veenstra in their official capacities. We review de novo a district co urt’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 ca n 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 ba rs 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 su ch relief if “the arguments [Morstad] advance[s] for reversal are clearl y lacking in merit and frivolous.” United States v. Gerards , 9 99 F.2d 1255, 1256-57 (8th Cir. 1993). While we consider the case law construing Elevent h Amendment immunity well settled, we cannot construe Morstad’s argument for a public policy exception to such immunity as clearly lackin g in merit or frivolous. We therefore deny the Rule 38 motion.
5 159, 169 (1985). Morstad does not challenge defendants’ assertion that the DHHS , DOCR, or Schuetzle and Veenstra acting in their of ficial capacities are state actors. Nor does Morstad suggest th at the state waived its Eleventh Amendment immunity. Rather, he arg ues that, under Graham , when a state entity is the “moving force” behind th e deprivation of a federal right, the entity is liable under § 1983. We disagree.

Graham clearly indicates that, absent a waiver, the Eleventh Amendmen t immuniz es the state and its officials acting in their official capacities from § 198 3 liability. See id. A lternatively, Morstad argues that public policy requires an exception to this principle “when t

he circumstances are incredibly egregious.” (Appellant’s Br. at 13.) Even if public pol icy dictated such an exception, a question we decline to address, the circ umstances of this case do not warrant such an exception. Consequently, w e affirm the district c ourt’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 g rant of summary judgment,

we use the same standards as the district court. See Davenport v. Riverview Garden s Sch. Dist

. , 30 F.3d 940, 944 (8th Cir. 1994). We affirm where, after viewing th e evidence in the light most favo rable 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 n egligent actions of an offic ial, such as those allegedly committed by Veenstra, do not support § 198 3 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 livin g together i n 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 admi t culpa bility, we find no support for the proposition that Veenstra’s failure to find such a program wou ld constitute a deprivation of a federal right. Morstad’s remedy fo r Veenstra ’s alleged negligence, if there is any, lies in tort. Because we agree with th e dist rict court’s determination that Morstad’s negligence claim lacked constitutiona l dimension, we affirm.

Morstad n ext argues that the district court erred by determining that Veenstr a enjoyed absolute immunity for the testimony and reports Ve enstra submitted to the court. Our case law dictates that those “perform[ing] functions essential to the judicial process” enjoy absolute im

munity against suit based on those actions. Moses v. Parwatikar , 813 F. 2d 891, 892 (8th Cir. 1987) (court-appointed psychiatrist performing competenc y examination enjoyed absolute immunity); see also Myers v. M orris , 810 F.2d 1437, 1467 (8th Cir. 1987). Because the court directed Veenstra to evaluate Morstad and to testify atMorstad’s probation revocation hearing, we conclude that Veenstra was performing functi ons 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 th e 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 th e revocation, that no reasonable juror could find Veenstra’s actions to have proximately7

caused Morstad’s physical injuries. In other words, Veenstra’s tes timony and reports did not cause Morsta d 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 aforemen tioned 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.