This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).





A06-76, A06-77



Brooks D. Fisher,





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



Dr. Virginia Mandac, et al.,




Filed June 12, 2007

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge


Ramsey County District Court

File No. C3-05-495



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


Lori Swanson, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (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 D. Fisher claims that he was repeatedly assaulted while he was incarcerated between 1998 and 2003.  He brought claims against appellants State of Minnesota Department of Corrections and various department employees for violations of 42 U.S.C. § 1983 (2000), violations of the Minnesota Constitution, and negligence.  Appellants moved for summary judgment arguing that they were immune.  The district court denied appellants’ motion, and this appeal followed.  This court reversed the district court on all but two of the alleged assaults.  Fisher v. State, Nos. A06-76 and A06-77, 2006 WL 2947530, at *1 (Minn. App. Oct. 17, 2006).  By order of the supreme court, this court’s decision was vacated and remanded for further consideration.  Fisher v. State, Nos. A06-76 and A06-77 (Minn. Dec. 20, 2006).

            Because appellants, in their official capacities, are immune from section 1983 claims for monetary damages, we reverse in part.  Because appellants, in their individual capacities, are not immune from respondent’s section 1983 claims except for his Fifth and Fourteenth Amendment claims, we affirm in part, reverse in part, and remand.  Because appellants, in their official capacities, are not immune from section 1983 claims for injunctive relief, we affirm in part.  Because appellants do not have official immunity, we affirm in part.

D E C I S I O N[1]


            Appellants argue that respondent cannot maintain an action for monetary damages against them in their official capacities.  We agree.  Issues of statutory interpretation are reviewed de novo.  Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).  Section 1983 states:

            Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.


42 U.S.C. § 1983 (2000).  “[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”  Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 109 S. Ct. 2304, 2312 (1989); see also Bird v. State, 375 N.W.2d 36, 43 (Minn. App. 1985) (“the Department of Public Safety itself is not a ‘person’ which may be sued under section 1983”).  This holding applies to actions for monetary damages against state defendants in their official capacity.  491 U.S. at 71 & n.10, 109 S. Ct. at 2312 & n.10.


            Respondent argues that appellants, in their individual capacities, are liable for monetary damages under section 1983 for violating his rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments.  Appellants argue that qualified immunity bars respondent’s section 1983 claims against them in their individual capacities.  “[S]tate officials sued in their individual capacities . . . are ‘persons’ within the meaning of § 1983.”  Hafer v. Meb, 502 U.S. 21, 31, 112 S. Ct. 358, 365 (1991).  Officials sued under section 1983 in their individual capacities can raise qualified immunity.  Id. at 25, 29, 112 S. Ct. at 362, 364; see also Stone v. Badgerow, 511 N.W.2d 747, 750-51 & n.3 (Minn. App. 1994), review denied (Minn. April 19, 1994).

            “An order denying summary judgment on immunity grounds is immediately appealable.”  Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006).  “In reviewing an appeal from the denial of summary judgment, we must determine whether there are genuine issues of material fact and whether the district court erred in applying the law.”  Id.  “When reviewing a summary judgment ruling, we must consider the evidence in the light most favorable to the nonmoving party.”  Id.  “Immunity is a legal question that is reviewed de novo.”  Id.

            “Qualified immunity shields government officials from civil liability if ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”  Id. at 483 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)).  Qualified immunity entails a two-step analysis.  Id.  First, as a threshold inquiry, a court must determine whether the facts alleged are sufficient to show a constitutional violation.  Id.  Second, a court must determine whether “the law regarding the right allegedly violated ‘was clearly established.’”  Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001)).  “Whether the law regarding the right was clearly established is a legal question for the court.”  Id. at 483-84.

            A.         Failure to Protect

“[A] prison official violates the Eighth Amendment only when two conditions are met.  Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994).  First, “the deprivation alleged must be objectively, sufficiently serious [such that] a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”  Id. (quotations and citations omitted).  Second, a prison official must have a sufficiently culpable state of mind and that state of mind must be one of “deliberate indifference.”  Id. (quotations and citations omitted).  To demonstrate deliberate indifference, the plaintiff-inmate must show that the “prison official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.”  Id. at 837, 114 S. Ct. at 1979; see also Haavisto v. Perpich, 520 N.W.2d 727, 733 (Minn. 1994).  But “an official’s failure to alleviate a significant risk that [the official] should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”  Farmer, 511 U.S. at 838, 114 S. Ct. at 1979.  Moreover, under this test, “an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of harm.”  Id. at 842, 114 S. Ct. at 1981.

 The alleged deprivation here is appellants’ refusal to provide for respondent’s general safety.  Respondent has been targeted by prison gangs and subjected to extortion and assaults.  Respondent is forced either to live in solitude, where he is still not safe, or to live in the general prison population, where he is subject to assault and extortion.  Viewed in the light most favorable to respondent, see Mumm, 708 N.W.2d at 481, appellants’ alleged disregard for respondent’s safety denies respondent “the minimal civilized measure of life’s necessities.”  Farmer, 511 U.S. at 834, 114 S. Ct. at 1977.

Respondent’s numerous altercations with prison gangs, along with his written and verbal requests to be relocated, indicate a substantial risk of harm.  Furthermore, respondent notified the corrections officers of this risk of harm.  While the state argues that corrections officers cannot know when assaults on an inmate will occur, in this case, there is an alleged pattern of threats and assaults.  A prison official may not

escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.  The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health, . . . and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.


Farmer, 511 U.S. at 843, 114 S. Ct. at 1982 (citation and quotation omitted).  Even though appellants may not have known exactly when respondent would be assaulted, they knew that prison gangs posed a substantial risk to his safety and allegedly did not act.  Because these gangs pose a substantial risk of harm to respondent, and, although it knew of this risk, the state did not take proper precautions to protect him, respondent has met the deliberate indifference prong of an Eighth Amendment violation.

The second prong is that “the law regarding the right allegedly violated ‘was clearly established.’”  Mumm, 708 N.W.2d at 483.  Although the Constitution does not mandate comfortable prisons, “[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.”  Farmer, 511 U.S. at 832, 834, 114 S. Ct. at 1976, 1977 (quotations and citations omitted)  “The [Eighth] Amendment imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”  Id., 511 U.S. at 832, 114 S. Ct. at 1976 (quotations omitted).  The law is sufficiently clear to put prison officials on notice that they must take reasonable steps to provide for the safety of inmates.  Appellants allegedly ignored respondent’s requests to be moved or for added security, and they did not reasonably respond to respondent’s basic safety needs. Therefore, appellants, in their individual capacities, are not immune.

B.         Failure to Provide Medical Care

Appellants also argue that they are immune from respondent’s Eighth Amendment claim for failure to provide medical care.  The government is obligated “to provide medical care for those whom it is punishing by incarceration.”  Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976)  Under Section 1983, “deliberate indifference to a prisoner’s serious illness or injury states a cause of action.”  Id. at 105, 97 S. Ct. at 291.  A prisoner must make an objective showing of a serious medical need and a subjective showing that the state’s actions demonstrate a culpable mindset of deliberate indifference to the prisoner’s medical needs.  See Wilson v. Seiter, 501 U.S. 294, 297-99, 111 S. Ct. 2321, 2323-24 (1991) (discussing the objective and subjective components of an Eighth Amendment analysis).

The parties agree that respondent’s eye injury is objectively serious.  The remaining question is whether appellants acted with deliberate indifference to respondent’s medical needs.  The only indifference respondent claims is appellants’ decision not to let him have an MRI.  The facts indicate that respondent’s treating doctor recommended an MRI but another doctor felt an MRI was unnecessary and would not authorize the test.  Based on respondent’s allegation that appellants denied him medical treatment recommended by his physician, appellants’ actions rise to the level of deliberate indifference.  Because respondent’s injury was objectively serious and he raises a genuine issue of material fact regarding appellants’ alleged deliberate indifference, summary judgment is not appropriate on this claim.

            C.        Sixth Amendment Claim

            Appellants argue that they are immune from respondent’s Sixth Amendment claims.  To establish a Sixth Amendment violation, an inmate must show that some deficiency actually hindered the inmate’s efforts to pursue a legal claim.  Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180 (1996).  Some actual harm must be shown, such as missing a filing date.  See id.  Respondent alleges that prison officials have constantly hindered him from pursuing this action by confiscating his legal paper work and not allowing him to contact his attorney.  Respondent also asserts that appellants’ actions prevented him from filing his claim sooner, which caused the statute of limitations to lapse on some of his claims and delayed some protective measures.  With these allegations, respondent raises a genuine issue of material fact as to whether appellants violated his Sixth Amendment rights.  See Mumm, 708 N.W.2d at 483.  Therefore, appellants, in their individual capacities, are not immune.

            D.        First Amendment Claim

            Respondent also asserts that appellants have violated his First Amendment rights because they retaliated against him for filing this action.  Respondent alleges that, shortly after he initiated this action against appellants, they confiscated his legal paper work and prevented him from contacting his attorney.  To prevail on a retaliatory-discipline claim, appellants need to show only that there was “some evidence” supporting their decision to discipline respondent, and, if the contested discipline was imposed for an actual violation of prison rules, the retaliatory discipline claim must fail.  Goff v. Burton, 91 F.3d 1188, 1191 (8th Cir. 1996); see also Cornell v. Woods, 69 F.3d 1383, 1389 (8th Cir. 1995).

            Appellants have not indicated what evidence, if any, indicates that the alleged seizure of respondent’s legal documents was related to violations of prison rules, and neither respondent nor the district court directly addressed this issue.  We, therefore, remand this issue to the district court for further consideration, noting that, if the seizure was related to a rule infraction, summary judgment would be appropriate.

            E.         Fifth and Fourteenth Amendment Claims

            Respondent’s Fifth and Fourteenth Amendment claims regarding equal protection and due process fail because none of the deprivations respondent has suffered depart significantly from the ordinary incidents of prison life and he is not part of a recognized suspect class. See Moorman v. Thalacker, 83 F.3d 970, 972 (8th Cir. 1996) (due process); see also Rouse v. Benson, 193 F.3d 939, 942 (8th Cir. 1999) (stating “in prison cases, courts will ordinarily defer to the expert judgment of prison authorities, due to the difficulty of running a prison and the commitment of the task to the responsibility of the legislative and executive branches”).

            Because respondent has failed to demonstrate constitutional violations on his Fifth and Fourteenth Amendment claims, the first prong of the qualified-immunity analysis requiring a constitutional violation is not met, and appellants are immune.


            Respondent argues that he is entitled to injunctive relief.  “Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official capacity actions for prospective relief are not treated as actions against the State.”  Will, 491 U.S. at 71 n.10, 109 S. Ct. at 2312 n.10 (quotation omitted).  On appeal, the only injunctive relief respondent seeks is a diagnostic MRI for his eye injury.  As discussed above, respondent raises a genuine issue of material fact as to whether appellants violated his clearly-established Eighth Amendment rights.  See Mumm, 708 N.W.2d at 483.


            Appellants argue that common-law immunity bars respondent’s negligence claim.  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.

The question of whether official immunity exists may be appropriately resolved on summary judgment.  See Elwood v. Rice County, 423 N.W.2d 671, 679 (Minn. 1988).  “[A]llegations in a complaint may provide the basis for denying an immunity defense.”  Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318-19 (Minn. App. 1997) (citing Baker v. Chaplin, 517 N.W.2d 911, 916-17 n.8 (Minn. 1994) (other citation omitted)), aff’d in part and remanded, 582 N.W.2d 216, 221 (Minn. 1998).  A party asserting an immunity defense bears the burden of demonstrating that it is entitled to immunity.  Id. at 314 (citing Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Official immunity is a common-law doctrine that provides that “a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.”  Elwood, 423 N.W.2dat 677(quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)).  The doctrine’s purpose is to protect “public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.”  Id. at 678.  Official immunity applies when the conduct in question (1) was discretionary and not ministerial and (2) was not malicious or willful.  See Davis v. Hennepin County, 559 N.W.2d 117, (Minn. App. 1997), review denied (Minn. May 20, 1997).  A ministerial act is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts,” but a discretionary act is one in which an official must exercise “judgment or discretion.”  Johnson v. State, 553 N.W.2d 40, 46 (Minn. 1996) (quotations omitted).

When a party alleges that an official is not entitled to official immunity because the official acted maliciously or willfully, this court “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).  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. at 107 (concluding that willful and malicious are synonymous in the official-immunity context) (quotation omitted).  In the context of official immunity, “malice” does not require a showing of “ill will” or “improper motive,” but if a party alleges that an official has acted with such “‘actual malice’ . . . in carrying out his or her duties, that allegation may support the court’s determination that the official’s conduct was not legally reasonable.”  Gleason, 563 N.W.2d at 317, 318 n.3.  The malice exception has been called one of the “least easily understood aspects of immunities law.” Id. at 317. To defeat a malice claim, an official must show that his conduct meets one of three tests:

(1) that the conduct was ‘objectively’ legally reasonable, that is, legally justified under the circumstances; (2) that the conduct was ‘subjectively’ reasonable, that is, taken with subjective good faith; or (3) that the right allegedly violated was not clearly established, that is, that there was no basis for knowing the conduct would violate the plaintiff’s rights.


Id. at 317-18.  Liability does not arise “merely because an official intentionally commits an act that a court or a jury subsequently determines is a wrong.”  Rico, 472 N.W.2d at 107.

The prison officials’ alleged conduct rises to the level of deliberate indifference and violates the Eighth Amendment; therefore, their conduct was neither objectively reasonable or subjectively reasonable.  In addition, the right that the officials allegedly violated was clearly established.  Respondent has raised a genuine issue of material fact regarding the issue of malice; therefore, appellants are not immune.

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.