                 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,1 District Judge.


HEANEY, Circuit Judge.



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
       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.


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        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.




                                             4
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.

      2
        On October 15, 1997, we agreed to consider a Rule 38 motion for damages and
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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        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


                                             6
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.




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