This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).




A06-76, A06-77


Brooks D. Fisher,





State of Minnesota, Department of Corrections, et al.,



Dr. Virginia Mandac, et al.,



Filed October 17, 2006

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge


Ramsey County District Court

File No. C3-05-495


Jordan S. Kushner, Law Offices of Jordan S. Kushner, 431 South Seventh Street, Suite 2446, Minneapolis, MN 55415 (for respondent)


Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for appellants)


            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

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.

D E C I S I O N[1]


Appellants argue 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.  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).  When reviewing a summary-judgment ruling that denies official immunity, this court makes two determinations: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006).  The application of official immunity is a question of law, which this court reviews de novo.  Id. 

To determine 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 (Minn. 1996).  If the conduct is discretionary, the court then asks if the official acted willfully or maliciously.  See Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (official immunity provides that public official whose duties call for exercise of judgment or discretion is not personally liable for damages unless he is guilty of willful or malicious wrong).  When a party alleges that an official is not entitled to official immunity because the official acted maliciously or willfully, appellate courts “must determine whether a genuine issue of material fact exists as to whether [the official’s] actions could constitute a willful or malicious wrong.”  Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (concluding that willful and malicious are synonymous in official-immunity context).  “[Malice is] the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.”  Id.

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 (Minn. 1993).  Viewing the record in the light most favorable to respondent, a genuine issue of material fact exists as to whether appellants knew that respondent would be assaulted.  We therefore affirm the denial of summary judgment and remand appellants’ defense that official immunity protects their conduct in connection with the May 26, 2002, assault.


            Respondent 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.[2]  “[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 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989)).  Therefore, summary judgment is appropriate on respondent’s section 1983 claims, and we reverse.  Given this disposition of respondent’s claims based on the United States Constitution, we decline to address respondent’s claims under the Minnesota Constitution.[3]

Affirmed in part, reversed in part, and remanded.

[1] 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.

[2] 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.

[3] 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).