               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 16-1560
                      ___________________________

                             John Maxwell Montin

                     lllllllllllllllllllll Plaintiff - Appellant

                                         v.

       Y. Scott Moore, M.D.; Mario Scalora, Ph.D.; Mary Paine, Ph.D.

                   lllllllllllllllllllll Defendants - Appellees

                             Stephen Paden, M.D.

                          lllllllllllllllllllll Defendant

                            Lisa Woodward, Ph.D.

                    lllllllllllllllllllll Defendant - Appellee

       Chin Chung, M.D.; Marco Baquero, M.D.; Eugene Oliveto, M.D.

                          lllllllllllllllllllll Defendants

Ann Evelyn, M.D.; Dinesh Karumanchi, M.D.; Rajeev Chaturvedi, M.D.; Joanne
 Murney, Ph.D.; Sherri Browning, Ph.D.; Lorrene Jurgens, Nurse Practitioner;
                           Mindy Abel, Psy.D.

                   lllllllllllllllllllll Defendants - Appellees

          Cynthia Petersen, Nurse Practitioner; James Allison, Ph.D.

                          lllllllllllllllllllll Defendants
   Corrine McCoy, Program Manager; Jennifer Cimpl, Psy.D.; Shannon Black,
                       Psy.D.; Zakaria Siddiqui, M.D.

                      lllllllllllllllllllll Defendants - Appellees

                               Roberto Alves, Psy.D.

                             lllllllllllllllllllll Defendant

                 Kathleen Barrett, Psy.D.; Klaus Hartmann, M.D.

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                           Submitted: October 25, 2016
                             Filed: January 19, 2017
                                 ____________

Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       John Maxwell Montin was committed to the Lincoln Regional Center (LRC)
for a period of almost twenty years after a jury found him not responsible by reason
of insanity. After his release, Montin brought suit in federal district court against
various psychologists, psychiatrists, and other employees of the LRC, alleging
defendants committed medical malpractice under Nebraska state law. Montin also
alleged defendants violated his constitutional rights to be free from unnecessary



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confinement and free from retaliation for seeking access to courts. The district court1
dismissed Montin’s state law malpractice claim as barred by sovereign immunity, and
dismissed Montin’s unnecessary confinement claim, ruling defendants were entitled
to qualified immunity. Because we conclude Montin’s state law malpractice claim
was improperly filed in federal court under the Nebraska State Tort Claims Act, and
defendants are entitled to qualified immunity on Montin’s unnecessary confinement
claim, we affirm.

I.      BACKGROUND
        A Nebraska state court committed Montin to the LRC on August 13, 1993,
after a jury found Montin not responsible by reason of insanity on two felony charges.
On July 16, 2013, almost twenty years after his initial commitment, that state court
found Montin no longer dangerous to himself or others and ordered him
unconditionally released. Defendants were all employees of the LRC during the time
Montin was committed there and rendered professional healthcare services to Montin
by conducting forensic evaluations, administering psychological testing, formulating
and implementing treatment plans, and providing annual court reports.

       In July 2014, Montin brought suit against defendants in federal court. Montin
asserted, under 42 U.S.C. § 1983, defendants violated his federal civil right to be free
from unnecessary confinement by creating unreliable evaluations and reports and
failing to evaluate and treat Montin properly so that Montin continued to be
unnecessarily confined. Montin claimed this failure to evaluate and treat him
adequately violated his fundamental right to freedom from physical restraint. Montin
further asserted defendants violated his federal civil rights by retaliating against him
for seeking relief in state and federal courts. Montin also alleged defendants failed
to meet the standard of care in their respective disciplines under Nebraska state law


      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

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by incorrectly labeling Montin as mentally ill and subjecting Montin to unnecessary
and inappropriate treatment and confinement.

       The district court granted defendants’ motion to dismiss the state law
malpractice claim because the claim was barred by sovereign immunity and not
waived by Nebraska under its State Tort Claims Act, Neb. Rev. Stat. § 81-8,209, et
seq. The district court also granted defendants’ Fed. R. Civ. Pro. 12(c) motion for
judgment on the pleadings and dismissed Montin’s federal civil rights claims,
concluding defendants were entitled to qualified immunity. Montin appeals the
district court’s orders dismissing his claims, and we have jurisdiction to hear his
appeal pursuant to 28 U.S.C. § 1291.

II.     DISCUSSION
        A.   State Law Malpractice Claim
        Montin alleged defendants committed medical malpractice under Nebraska
state law. The district court dismissed this claim following defendants’ Rule 12(b)(1)
and (6) motion to dismiss.2 We review such a dismissal de novo and interpret all
factual allegations in the pleadings in the light most favorable to the nonmoving
party. See Nelson v. Midland Credit Mgmt. Inc., 828 F.3d 749, 751 (8th Cir. 2016).

       All defendants were state employees at the time of the events alleged in
Montin’s amended complaint. Sovereign immunity bars any suits against states and
their employees in their official capacities. See Alden v. Maine, 527 U.S. 706, 712-
13 (1999). Congress can abrogate sovereign immunity, like it has for claims filed
pursuant to 42 U.S.C. § 1983, or states can waive sovereign immunity, but in the
absence of such abrogation or waiver, sovereign immunity bars all suits. See,
e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996).


      2
       The district court had jurisdiction over Montin’s state law malpractice claim
under 28 U.S.C. § 1332(a)(1).

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      Nebraska has waived sovereign immunity for a limited set of claims. See
Nebraska State Tort Claims Act (STCA), Neb. Rev. Stat. § 81-8,209, et seq. For suits
not barred by sovereign immunity within Nebraska’s waiver, the STCA provides:

      The district court, sitting without a jury, shall have exclusive jurisdiction
      to hear, determine, and render judgment on any suit or tort claim. Suits
      shall be brought in the district court of the county in which the act or
      omission complained of occurred or, if the act or omission occurred
      outside the boundaries of the State of Nebraska, in the district court for
      Lancaster County.

Id. § 81-8,214.

        As an initial matter, Montin asserts the state law malpractice claim is against
defendants in their individual capacities and is thus not barred by sovereign
immunity. Montin’s amended complaint alleges all state claims are “against the listed
defendants in their individual capacity only” and “Defendants [sic] actions and
omissions were taken under color and authority of state law, but not in furtherance
of the official policy, practice, and custom of the LRC.” (Emphasis added). All
actions and omissions Montin pled—such as the failure to use appropriate forensic
tools, the failure to score and interpret psychological tests correctly, and the
submission of false or misleading reports—evidence defendants’ malpractice
occurred within the scope of defendants’ employment as psychiatrists, psychologists,
and employees of the LRC. Under Nebraska law, a state official acting within the
scope of his or her employment at the time of an alleged tort must be sued in his or
her official capacity, and the plaintiff must “comply with the requisites set out in the
[STCA].” Bohl v. Buffalo Cty., 557 N.W.2d 668, 673 (Neb. 1997). Though
Montin’s amended complaint explicitly declares all claims are against defendants in
their individual capacities, all the actions or omissions alleged occurred in the scope
of defendants’ state employment, and we must treat the state law malpractice claim
as if it is against defendants in their official capacities. See id.

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        Montin’s claim against defendants in their official capacities is barred unless
Nebraska has waived sovereign immunity. See Seminole Tribe, 517 U.S. at 54-55.
If Nebraska has waived its immunity, Montin must bring the claim within the bounds
set forth by the Nebraska STCA. See Beers v. Arkansas, 61 U.S. 527, 529 (1857)
(“[A]s this permission is altogether voluntary on the part of the sovereignty, it follows
that it may prescribe the terms and conditions on which it consents to be sued, and the
manner in which the suit shall be conducted.”).

       If we assume Nebraska waived its sovereign immunity in this instance, any
waiver of that immunity does not extend to actions brought in federal court. See Neb.
Rev. Stat. § 81-8,214 (requiring all claims under Nebraska’s STCA be brought in
state district court). State sovereign immunity bars actions in federal court regardless
of the basis for otherwise appropriate subject matter jurisdiction. See Raygor v.
Regents of Univ. of Minn., 534 U.S. 533, 541-42 (2002) (holding the Eleventh
Amendment bars actions in federal court even where 28 U.S.C. § 1367, in general,
authorizes supplemental jurisdiction). Montin did not comply with the requirements
set forth by Nebraska’s STCA—“[s]uits shall be brought in the district court of the
county in which the act or omission . . . occurred,” Neb. Rev. Stat. § 81-8,214—when
he filed his state law malpractice claim in federal court. The district court did not err
in dismissing this claim without prejudice.

      B.     Unnecessary Confinement Civil Rights Claim
      Defendants additionally argue they are entitled to qualified immunity from the
claim that they unnecessarily confined Montin.3 The district court dismissed the


      3
       Defendant Mario Scalora asserts he is not a “person” who can be sued under
42 U.S.C. § 1983 because he is a state employee. The Supreme Court has previously
held a state is not a “person” who can be sued under 42 U.S.C. § 1983, see Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989), but the Court has explicitly
rejected the position defendant Scalora sets forth: “The requirement of action under

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unnecessary confinement civil rights claim following defendants’ motions for
judgment on the pleadings. We review a grant of a Fed. R. Civ. P. 12(c) motion de
novo. See Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). A grant of such
a motion is “appropriate only when there is no dispute as to any material facts and the
moving party is entitled to judgment as a matter of law.” Id.

       A state official is immune from liability unless he or she “violated a clearly
established constitutional or statutory right of which a reasonable official would have
known.” Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012). When determining
whether a public official is entitled to qualified immunity, we examine (1) whether
the official violated the plaintiff’s constitutional or statutory right, and (2) whether
that right was clearly established at the time of the violation. See LaCross v. City of
Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013). “If the answer to either question is no,
then the [state officials] are entitled to qualified immunity.” Keil v. Triveline, 661
F.3d 981, 985 (8th Cir. 2011).

       Montin initially characterizes his unnecessary confinement as a due process
violation. Then he contends the Eighth Amendment (through the Fourteenth
Amendment) “deliberate indifference” standard and Nebraska’s statutory commitment
procedures create applicable “fundamental civil rights.” The Supreme Court has
established the right to due process prevents the state from “constitutionally
confin[ing] without more a nondangerous individual who is capable of surviving
safely in freedom by himself,” O’Connor v. Donaldson, 422 U.S. 563, 576 (1975),
and that a “committed acquittee is entitled to release when he has recovered his sanity


color of state law means that [a state official] may be liable for [actions taken within
the scope of her employment] precisely because of her authority as [a state official].
We cannot accept the novel proposition that this same official authority insulates
[state officials] from suit.” Hafer v. Melo, 502 U.S. 21, 27-28 (1991). Therefore this
argument has no merit.

                                          -7-
or is no longer dangerous.” Jones v. United States, 463 U.S. 354, 368 (1983). To
show an individual is liable for unconstitutional confinement, a plaintiff needs to
show the person “‘knew or reasonably should have known that the action he took
within his sphere of official responsibility would violate the constitutional rights of
[the plaintiff], or . . . took the action with the malicious intention to cause a
deprivation of constitutional rights or other injury to [the plaintiff].’” O’Connor, 422
U.S. at 577 (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975)).

       Taking the facts in the light most favorable to the nonmoving party, it is clear
Montin only alleged defendants’ actions were negligent. Montin alleged a failure “to
use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and
used under like circumstances by members of his or her profession.” It is well-
established “[c]onduct that is merely negligent or grossly negligent does not implicate
the protections of the Due Process Clause.” Jackson v. Buckman, 756 F.3d 1060,
1067 (8th Cir. 2014); see also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010)
(“To state a claim based on inadequate medical treatment . . . [t]he plaintiff must show
more than negligence, more even than gross negligence.” (omission and alteration in
original) (quoting Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006))). Though
Montin alleged plaintiffs “were aware that their actions would result in the
unnecessary and continued confinement of Montin . . . and that such unnecessary
confinement was a violation of Montin’s right to liberty,” Montin does not allege any
facts to support this conclusion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Instead, Montin alleged defendants “failed
to determine that [Montin] was not mentally ill,” “persistently relied on a false factual
belief that Montin had been found not responsible by reason of insanity of attempted
murder,” and “relied upon inconsistent findings to manufacture or exaggerate a
mental illness finding.” All of these actions are negligence or, at worst, gross
negligence.


                                          -8-
       We note Montin’s claims are distinguishable from the right outlined in
O’Connor because, there, the Supreme Court held there is “no constitutional basis for
confining [mentally ill] persons involuntarily if they are dangerous to no one and can
live safely in freedom.” O’Connor, 422 U.S. at 575. The civil commitment
procedures in O’Connor allowed hospital staff to release patients without any review
by a court, and the defendant testified he had no knowledge the plaintiff had ever
committed a dangerous act. See id. at 567-68. That is materially different from the
situation Montin alleged—defendants held a subjective belief Montin was mentally
ill and dangerous to himself or others, as Montin himself alleged in his amended
complaint. This belief—even if it is an erroneous belief predicated on defendants’
allegedly negligent treatment—rebuts any allegation defendants maliciously intended
to deprive Montin of his constitutional rights. See id. at 577.

       Montin failed to allege action that violated his constitutional rights. The
district court properly dismissed the unnecessary confinement claim.

       C.     Retaliation Civil Rights Claim
       Montin also alleged defendants retaliated against him for seeking state and
federal court review of his confinement. As defendants point out, “neither
‘retaliation’ nor any variant of that word appears anywhere in Montin’s brief.”
Because “[c]laims not raised in an opening brief are deemed waived,” Jenkins v.
Winter, 540 F.3d 742, 751 (8th Cir. 2008), and Montin failed to address the
retaliation claim in his opening brief, Montin waived this issue. We thus affirm the
district court’s dismissal of Montin’s retaliation claim.

III.  CONCLUSION
      We affirm the district court’s dismissal, without prejudice, of the state law tort
claim as improperly filed in federal court under Nebraska’s STCA. In addition, we



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affirm the district court’s dismissal of the unnecessary confinement claim because
defendants are entitled to qualified immunity.
                        ______________________________




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