This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota, Department of Corrections, et al.,
Dr. Virginia Mandac, et al.,
Filed October 17, 2006
Toussaint, Chief Judge
Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for appellants)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Respondent Brooks Fisher was repeatedly assaulted while he was incarcerated between 1998 and 2003. He brought claims for violations of 42 U.S.C. § 1983 (2000), violations of the Minnesota Constitution, and negligence against appellants State of Minnesota Department of Corrections and various department employees. Arguing that they are immune from such claims, appellants moved for summary judgment. Their motion was denied. Because genuine issues of material fact remain regarding whether appellants acted with malice and are therefore not entitled to official immunity on the negligence claim arising out of the May 26, 2002, assault, we affirm the denial of summary judgment on that claim and remand. Because appellants do not argue that official immunity applies to the negligence claim arising out of the October 22, 2003, assaults, we also affirm the denial of summary judgment on that claim and remand. Because we conclude that appellants are immune from respondent’s section 1983 claims and his other negligence claims, we reverse the denial of summary judgment on those claims.
that common-law official immunity bars respondent’s negligence claim arising
out of the assault on May 26, 2002. A
party may appeal immediately from an order that denies official immunity.
whether official immunity applies, a court asks first if the conduct in
question was discretionary, which calls for the exercise of judgment or
discretion, or ministerial, which involves only the execution of a specific
duty arising from designated facts. Johnson v. State, 553 N.W.2d 40, 46 (
Respondent alleges that
appellants knew he might be assaulted and did not take steps to prevent it,
that he was assaulted on May 26, 2002, and that appellants’ failure to take
steps was a wrongful act without legal justification and a willful violation of
his known rights. This court reviews the
evidence in the light most favorable to the nonmoving party. Fabio
v. Bellomo, 504 N.W. 2d 758, 761 (
claims that appellants violated his First, Fifth, Sixth, Eighth, and Fourteenth
Amendment rights and that he is entitled to recover under 42 U.S.C. § 1983
(2000). Appellants assert that sovereign
immunity shields them from respondent’s section 1983 claims. “[N]either a state nor its employees acting
in their official capacity may be sued under 42 U.S.C. 1983.” Carter
v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 273 (Minn.
App. 1997) (citing Will v. Mich. Dep’t of
State Police, 491
Affirmed in part, reversed in part, and remanded.
 Pursuant to the district court’s protective order dated March 31, 2005, many of the documents and facts of this case have been sealed and are confidential.
 In an order dated February 21, 2006, this court granted discretionary review to sections III A, B, C, and D of appellants’ brief. Sovereign immunity was included in that part of appellants’ brief.
 Pursuant to our order of February 21, 2006, we do not address respondent’s medical malpractice claim or appellants’ defense that respondent has not complied with the requirements outlined in Minn. Stat. § 145.682 (2004).