This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1488

 

Charles D. Armstrong,

Respondent,

 

vs.

 

State of Minnesota

Department of Corrections,

Appellant,

 

County of Hennepin, et al.,

Defendants.

 

Filed July 3, 2007

Affirmed in part and reversed in part

Hudson, Judge

 

Hennepin County District Court

File No. 27-CV-05-009658

 

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

 

Lori Swanson, Attorney General, Jennifer A. Service, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2138 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

The Department of Corrections (DOC) appeals from the district-court order denying its motion for summary judgment against respondent’s claims alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.12; and negligence.  Respondent’s claims arise from his treatment while in prison and subsequent placement at a halfway house and the DOC’s decision to retain him in custody after the expiration of the projected release date, due to respondent’s violation of the terms of release.  The DOC argues that (a) official immunity bars respondent’s claims that it discriminated against him in the provision of a public service in violation of the MHRA and the ADA; (b) statutory immunity under Minn. Stat. § 3.736, subd. 3(b), bars respondent’s negligence claim; and (c) sovereign immunity bars respondent’s claims under the ADA.  We affirm all but three of the district court’s determinations.  Specifically, we reverse the district court’s determinations that:  (1) the DOC is not entitled to vicarious official immunity on respondent’s MHRA claim; (2) the DOC is not entitled to statutory immunity on respondent’s negligence claim; and (3) the DOC is not entitled to sovereign immunity from respondent’s ADA claim under the Eighth Amendment.

FACTS

            In 2002, respondent Charles Armstrong was diagnosed with degenerative arthritis in his hips, which makes it difficult for him to walk or stand for long periods of time.  In October 2003, respondent was incarcerated at MCF-Rush City for felony assault against his wife.  Shortly after he arrived at MCF-Rush City, respondent requested a cell equipped with a handrail near the toilet.  A prison health-service administrator denied respondent’s request but offered him the use of a walker; respondent declined.  In January 2004, respondent was moved into a cell with handrails.

            After serving a portion of his sentence, respondent became eligible for Intensive Supervised Release (ISR).  Appellant Department of Corrections (DOC) decided that respondent would be released to a halfway house called “180 Degrees.” 

When respondent first arrived at 180 Degrees, he was given a room on the second floor and assigned to clean bathrooms.  Because of his arthritic condition, respondent complained about his accommodations and job assignment, and eventually respondent was moved to a room in the basement and assigned a job that he could complete in his room.

            In August 2004, respondent fell down a flight of stairs at 180 Degrees and injured himself.  Respondent was treated at Hennepin County Medical Center (HCMC), where he stayed for three days.  Respondent’s wife visited him every day at HCMC, but because respondent’s wife was the victim of his assault, this contact constituted a violation of his probation.  During respondent’s stay at HCMC, respondent’s parole officer saw respondent at HCMC with his wife.  The parole officer reported the violation, and a warrant was issued for respondent’s arrest.  A DOC hearing officer subsequently determined that respondent had violated the conditions of his release and sentenced him to 60 days in prison at MCF-Lino Lakes. 

Upon revocation of his probation, respondent was given a projected release date of 60 days from the day of his disciplinary hearing.  But respondent remained incarcerated for more than 60 days because there was some difficulty in finding him a place to live.  Eventually respondent was placed at The Attic, a halfway house.  In March 2005, respondent had surgery and, as a result, required constant care.  Since he only had one month of supervised release left, respondent’s supervising parole agent allowed respondent to move in with his wife so she could care for him.

            On June 15, 2005, respondent filed a complaint against the State of Minnesota Department of Corrections, Hennepin County, 180 Degrees, two parole and probation officers, a DOC hearing officer, and a DOC case manager.  Respondent sought monetary damages and declaratory relief and alleged four causes of action: (1) disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132 and 12182, and the Minnesota Human Rights Act, Minn. Stat. § 363A.12; (2) reprisal and retaliatory discrimination in violation of the MHRA and ADA, 42 U.S.C. § 12203; (3) violation of 42 U.S.C. § 1983, including violations of the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; and (4) negligence.  On October 28, 2005, respondent submitted an amended complaint in which he named an additional DOC hearing officer as a defendant. 

            On March 2, 2006, the DOC and its employees filed a motion for summary judgment.  The other defendants also filed motions for summary judgment.  In its memorandum in support of its motion for summary judgment, the DOC argued that it was entitled to summary judgment because (1) respondent’s constitutional claims had no basis in fact or law; (2) it was entitled to qualified immunity from respondent’s constitutional claims; (3) sovereign immunity precluded respondent’s ADA claim; (4) respondent’s MHRA claim regarding accommodations in his cell was barred by the statute of limitations; (5) respondent’s MHRA and ADA claims were barred by the doctrine of official immunity; (6) respondent failed to state a prima facie case of retaliation under the ADA and MHRA; (7) respondent failed to state a prima facie case of discrimination under the ADA and MHRA; (8) the MHRA’s exclusivity provision precluded respondent’s negligence claim; (9) it had statutory immunity from respondent’s negligence claim; (10) it had official immunity from respondent’s negligence claim; and (11) no genuine issue of material fact existed with respect to respondent’s negligence claim. 

            By order dated June 13, 2006, the district court (1) granted all of the individual defendants’ motions to dismiss; (2) granted the DOC’s motion for summary judgment and to dismiss on respondent’s claims regarding reprisal and retaliatory discrimination in violation of the MHRA and ADA and respondent’s § 1983 claims; (3) granted Hennepin County’s motion for summary judgment with respect to all four of respondent’s claims; (4) granted 180 Degrees’ motion for summary judgment with respect to all four of respondent’s claims; and (5) denied the DOC’s motion for summary judgment with respect to respondent’s disability-discrimination claims and respondent’s negligence claim.

            The district court also determined that respondent’s claim of disability discrimination against the DOC under the Minnesota Human Rights Act, Minn. Stat. § 363A.28, was time-barred by the statute of limitations.

The district court declined to grant summary judgment to the DOC on respondent’s claim of disability discrimination because it concluded that there was a factual dispute regarding whether the DOC’s failure to respond to respondent’s medical needs constituted a violation of his Eighth Amendment rights.

The district court also concluded that the employees of the DOC were entitled to official immunity regarding respondent’s claim of disability discrimination, but that the DOC itself was not because a factual dispute existed with respect to respondent’s treatment while in prison and the circumstances surrounding his release. 

The district court also declined to dismiss respondent’s complaint of negligence against the DOC because there was a factual dispute as to whether respondent’s placement at 180 Degrees, which is not handicapped accessible, violated respondent’s medical restrictions.  This appeal follows. 

D E C I S I O N

I

 

            The DOC argues that the district court erred as a matter of law by concluding that it was not entitled to vicarious official immunity from respondent’s claims under the MHRA and the ADA.  We agree with appellant’s position as it relates to respondent’s claim under the MHRA. 

Respondent alleged three instances of discrimination under these provisions: (1) that he was not provided with a handicapped accessible prison cell when he asked for it; (2) that the DOC placed him at 180 Degrees, which was not handicapped accessible; and (3) that because he was disabled, his parole was revoked and he was denied release on his projected release date.  The district court dismissed respondent’s complaint regarding handicapped accessibility in his prison cell because it was barred by the applicable statute of limitations.  The district court also concluded that the DOC’s employees were entitled to official immunity because “there is no evidence that they intentionally committed any wrongful acts.”  But the district court concluded that the DOC was not entitled to vicarious official immunity because there was a factual question regarding whether respondent’s disabilities were reasonably accommodated and whether he suffered adverse treatment as a result of his disabilities.

The question of whether official immunity exists may be appropriately resolved on summary judgment.  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)). 

“While denial of a motion for summary judgment is not ordinarily appealable, an exception to this rule exists when the denial of summary judgment is based on rejection of a statutory or official immunity defense.”  Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).  When reviewing a district court’s summary-judgment ruling rejecting the defense of official immunity, we consider the evidence in the light most favorable to the nonmoving party and determine whether there are any genuine issues of material fact and 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 applicability of [official] immunity is a question of law, which [an appellate] court reviews de novo.”  Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004).

            A party opposing summary judgment must “do more than rest on mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  Id.

In Minnesota, 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.2d at 677 (quotation omitted).  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) is discretionary and not ministerial and (2) is not malicious or willful.  Davis v. Hennepin County, 559 N.W.2d 117, 122 (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.”  Thompson, 707 N.W.2d at 673 (quotation omitted).  A discretionary act is one that requires “the exercise of individual judgment in carrying out the official’s duties.”  Id. (quotation omitted). 

Generally, if a public official is immune from suit under the doctrine of official immunity, his or her employer will enjoy vicarious official immunity.  Anderson, 678 N.W.2d at 663–64.

The court applies vicarious official immunity when failure to grant it would focus “stifling attention” on an official’s performance “to the serious detriment of that performance.”  This standard grants vicarious official immunity in situations where officials’ performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.

 

Id. at 664 (citation omitted).  The granting of vicarious official immunity is a policy question.  Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (citing Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992)).  “Absent vicarious immunity, imposing liability on an employer would still require analysis and judgments about the employee’s actions. This scrutiny would defeat the purpose of immunity . . . .”  Pahnke v. Anderson Moving & Storage, 720 N.W.2d 875, 884 (Minn. App. 2006) (citation omitted), review denied (Minn. Nov. 22, 2006). 

            Our supreme court has held that making decisions regarding an offender’s supervised release involves balancing “[n]umerous protected policymaking considerations provided for by statute and administrative rule, such as the safety of the public, [an offender’s] rehabilitation and treatment needs, and [an offender’s] reintegration into the community.”  Johnson v. State, 553 N.W.2d 40, 47 (Minn. 1996).  Here, too, the decisions attributed to the DOC regarding respondent’s conditions of supervised release and release planning involved discretionary decisions involving balancing many factors, including public safety.  To subject the DOC to liability for these decisions—especially when its employees had already been granted official immunity for these same decisions—would inhibit the DOC and its employees from considering all of the necessary factors and making appropriate, sometimes difficult, decisions.  We conclude that the actions of the DOC were discretionary and that public policy weighs in favor of granting vicarious official immunity. 

Malice

            Respondent argues that the DOC acted maliciously and is therefore not entitled to vicarious official immunity.  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 (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.  This court, acknowledging that the malice exception is one of the “least easily understood aspects of immunities law,” has concluded that an official defeats a malice claim when the official can show that his conduct meets any one of the following 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 district court concluded that there is no evidence that any of the DOC employees intentionally committed any wrongful acts, and the record supports that determination.  But nonetheless, the district court concluded that factual issues remain with respect to whether the DOC itself acted maliciously.  But in this case, we conclude that the issues are essentially the same and that there is no meaningful distinction between the actions of the DOC employees and the actions of the DOC itself.  Because (1) the actions of the DOC were discretionary; (2) policy considerations weigh in favor of granting vicarious official immunity; and (3) there is no evidence that the DOC acted maliciously, the district court erred by concluding that the DOC was not entitled to vicarious official immunity from respondent’s discrimination claims under the MHRA. 

Supremacy Clause and Official Immunity

            Respondent also argues that official immunity is only available as a defense under Minnesota state law and therefore the Supremacy Clause of the United States Constitution precludes application of the official-immunity defense to claimed violations of a federal statute, in this case the ADA.  At oral argument, the DOC conceded that the district court did not err in denying its motion for summary judgment regarding official immunity from respondent’s ADA claim.  Therefore, we do not consider this issue.    

II

 

Appellant argues that it is entitled to statutory immunity from respondent’s negligence claim.  We agree.    

Whether a government entity is protected by statutory immunity is a question of law which this court reviews de novo.  Johnson, 553 N.W.2d at 45.  Statutory immunity provides that “the state and its employees are not liable for . . . a loss caused by the performance or failure to perform a discretionary duty, whether or not the discretion is abused.”  Minn. Stat. § 3.736, subd. 3(b) (2006).  The purpose of this exception is to “preserve the separation of powers by insulating executive and legislative policy decisions from judicial review through tort actions.”  Rico, 472 N.W.2d at 104. 

Statutory immunity is extended when there has been a planning-level decision; that is, social, political, or economic considerations have been evaluated and weighed as part of the decision-making process.  Statutory immunity does not extend to operational-level decisions, those involving day-to-day operations of government, the application of scientific and technical skills, or the exercise of professional judgment.

 

Schroeder v. St. Louis County, 708 N.W.2d 497, 504 (Minn. 2006) (citation omitted).  Consequently, this court must determine whether respondent’s complaint implicates “government action at the planning level,” which is generally considered protected action.  Rico, 472 N.W.2d at 104.

            The district court concluded that respondent’s claim of negligence on the part of the DOC presented a factual question for a jury and did not specifically address appellant’s claim of statutory immunity.  In our view, the decisions made by the DOC in this case are quintessential discretionary policy decisions in which the DOC must balance social, political, and economic considerations such as public safety, cost, offender’s needs, and rehabilitation.  See Johnson, 553 N.W.2d at 47 (“[D]ecisions regarding the placement of inmates . . . and decisions regarding how much liberty to afford them, are protected policy decisions immune from suit under the doctrine of . . . [statutory] immunity.”).  Therefore, we conclude that the district court erred by concluding that the DOC is not entitled to statutory immunity on respondent’s negligence claim.

III

 

The DOC argues that it is entitled to sovereign immunity from respondent’s claims under the ADA.  We agree. 

            Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. § 12132.  “[I]nsofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”  United States v. Georgia, 546 U.S. 151, 157, 126 S. Ct. 877, 882 (2006) (addressing claims of disabled prison inmate alleging violations of Title II of the ADA).  The court in United States v. Georgia also concluded that

it is quite plausible that the alleged deliberate refusal of prison officials to accommodate [the prisoner’s] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted “exclu[sion] from participation in or . . . den[ial of] the benefits of” the prison’s “services, programs, or activities.”

 

Id. at 881 (quoting 42 U.S.C. § 12132). 

However, in order to sustain a claim for violation of the Eighth Amendment prohibition against cruel and unusual punishment, an individual must “show unnecessary and wanton infliction of pain, as well as a deprivation denying the minimal civilized measure of life’s necessities” and “that the defendants were deliberately indifferent to his health or safety and that they acted maliciously for the purpose of causing him harm.”  Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (quotation and citations omitted).

            Here, respondent alleges that the DOC was indifferent to his medical needs and ignored doctors’ orders regarding his care.  The district court concluded that the DOC is not entitled to sovereign immunity from respondent’s ADA claim because a fact question remains regarding whether the DOC violated respondent’s Eighth Amendment rights.  But even looking at the facts in the light most favorable to respondent, he has not shown “that the defendants were deliberately indifferent to his health or safety and that they acted maliciously for the purpose of causing him harm.”  Phillips,320 F.3d at 848 (citation omitted).  Although the DOC initially denied respondent’s request for a cell with handrails, it is clear that the DOC took his request seriously, investigated it, and chose to offer respondent a walker instead.  Respondent refused the walker.  Significantly, the DOC moved respondent to a cell with handrails in January 2004.  These acts by the DOC are inconsistent with any claim of deliberate indifference or malice on the part of the DOC.

A party opposing summary judgment must “do more than rest on mere averments.”  DLH, 566 N.W.2d at 69–71.  The facts alleged by respondent do not implicate behavior by the DOC that would constitute a violation of respondent’s rights under the Eighth Amendment.  Therefore, the district court erred as a matter of law by concluding that respondent could sustain a claim against the DOC under the ADA and that the DOC is not entitled to sovereign immunity from respondent’s ADA claim.

            Respondent also alleges Fourteenth Amendment equal-protection violations.  But disability is not a suspect class, and respondent has not identified any similarly situated individuals who were treated differently.  See Lutheran Bhd. Research Corp. v. Comm’r of Revenue, 656 N.W.2d 375, 382 (Minn. 2003) (holding that no equal-protection violation when there is no showing that persons similarly situated are treated differently).

            Affirmed in part and reversed in part.