D.M. v. State
| Decision Date | 14 July 2015 |
| Docket Number | No. A–14–376,A–14–376 |
| Citation | 867 N.W.2d 622 |
| Parties | D.M., Appellant, v. State of Nebraska et al., appellees. |
| Court | Nebraska Court of Appeals |
Julie A. Jorgensen, Omaha, of Morrow, Willnauer, Klosterman & Church, L.L.C., for appellant.
Jon Bruning, Attorney General, and David A. Lopez for appellee.
1. Motions to Dismiss: Appeal and Error.A district court's grant of a motion to dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error.When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusion.
3. Tort Claims Act.Whether the allegations made by a plaintiff present a claim that is precluded by exemptions set forth in the State Tort Claims Act is a question of law.
4. Tort Claims Act: Appeal and Error.An appellate court has an obligation to reach its conclusion on whether a claim is precluded by exemptions set forth in the State Tort Claims Act independent from the conclusion reached by the trial court.
5. Constitutional Law: States: Immunity.The immunity of states from suit is a fundamental aspect of the sovereignty which the states enjoyed before the ratification of the Constitution and which they retain today.
6. Actions: Immunity.A suit against a state agency is a suit against the State and is subject to sovereign immunity.
7. Actions: Immunity.A suit generally may not be maintained directly against an agency or department of the State, unless the State has waived its sovereign immunity.
8. Statutes: Immunity.Statutes authorizing suits against the State are to be strictly construed because such statutes are in derogation of the State's sovereign immunity.
9. Immunity: Waiver.Waiver of sovereign immunity will be found only where stated by the most express language or by such overwhelming
implications from the text as will leave no room for any other reasonable construction.
10. Immunity: Waiver: Presumptions.There is a presumption against waiver of sovereign immunity.
11. Public Officers and Employees: Immunity.Sovereign immunity has potential applicability to suits brought against state officials in their official capacities.
12. Actions: Public Officers and Employees: Pleadings.Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.
13. Actions: Parties: Public Officers and Employees: Liability: Damages.In an action for the recovery of money, the State is the real party in interest because a judgment against a public servant in his official capacity imposes liability on the entity that he represents.
14. Actions: Public Officers and Employees: Immunity: Waiver: Damages.Unless waived, sovereign immunity bars a claim for money even if the plaintiff has named individual state officials as nominal defendants.
15. Tort Claims Act: Immunity: Waiver.The State Tort Claims Act waives the State's sovereign immunity with respect to certain, but not all, types of tort actions.
16. Tort Claims Act: Public Officers and Employees: Immunity.The State Tort Claims Act allows lawsuits against the State and public officials for certain tortious conduct, but not all.
17. Actions: Immunity: Waiver.In the absence of a waiver, sovereign immunity bars all suits against the State and state agencies, regardless of the relief sought.
18. Tort Claims Act: Immunity: Waiver: Public Officers and Employees.Although a state employee or officer may be allegedly sued individually, if he or she is acting within the scope of employment or office, the State Tort Claims Act still applies and provides immunity, unless such has been waived.
19. Tort Claims Act: Immunity: Negligence: Liability: Waiver.The State Tort Claims Act waives the State's sovereign immunity for tort claims against the State for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the state, while acting within the scope of his or her office or employment, under circumstances in which the State, if a private person, would be liable to the claimant for such damage, loss, injury, or death.
20. Tort Claims Act: Immunity: Waiver.Among the claims for which the State has not waived its sovereign immunity are claims arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, commonly referred to as the intentional tort exception.
21. Public Officers and Employees: Immunity: Negligence.To determine whether a claim arises from an intentional assault or battery and is therefore barred by sovereign immunity pursuant to the intentional tort exception, a court must ascertain whether the alleged negligence was the breach of a duty to select or supervise the employee-tort-feasor or the breach of some separate duty independent from the employment relation.
22. Public Officers and Employees: Immunity: Negligence.If the allegation is that the government was negligent in the supervision or selection of the employee and that the intentional tort occurred as a result, the intentional tort exception bars the claim; otherwise, litigants could avoid the substance of the exception because it is likely that many, if not all, intentional torts of government employees plausibly could be ascribed to the negligence of the tort-feasor's supervisors and would frustrate the purposes of the exception.
23. Statutes: Immunity: Waiver.A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.
24. Public Officers and Employees: Immunity.A plaintiff cannot avoid the reach of the intentional tort exception by framing his or her complaint in terms of negligent failure to prevent the assault and battery. The exception does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery.
25. Tort Claims Act: Immunity: Waiver: Pleadings: Proof.Exceptions found in Neb. Rev. Stat. § 81–8,219 (Supp. 2011) to the general waiver of tort immunity are matters of defense which must be pled and proved by the State.
26. Actions: Immunity: Waiver.Nebraska has not waived its sovereign immunity with regard to 42 U.S.C. § 1983 (2012) suits brought against it.
27. Constitutional Law: Immunity: Public Officers and Employees.The enactment of 42 U.S.C. § 1983 (2012) did not abrogate the State's 11th Amendment immunity by creating a remedy against the State.
28. Statutes: Constitutional Law: Immunity: Waiver.Neb. Rev. Stat. § 20–148 (Reissue 2012) is a procedural statute designed to allow plaintiffs to bypass administrative procedures in discrimination actions against private employers; it does not operate to waive sovereign immunity.
29. Public Officers and Employees: Immunity.Sovereign immunity does not apply when state officials are sued in their individual capacities—that is, when a suit seeks to hold state officials personally liable.
30. Actions: Parties: Public Officers and Employees: Waiver.Sovereign immunity does not apply even when state officials are sued in their individual capacities for acts taken within the scope of their duties and authority as state officials.
31. Public Officers and Employees: Liability.Personal-capacity suits seek to impose individual liability upon a government officer for actions taken under color of state law.
32. Limitations of Actions: Dismissal and Nonsuit.Neb. Rev. Stat. § 25–217 (Reissue 2008) provides that a plaintiff has 6 months from the date the complaint was filed to serve the defendants, at which point the complaint shall be dismissed without prejudice.
33. Immunity.Qualified immunity is an affirmative defense which must be affirmatively pleaded.
34. Appeal and Error.An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.
35. Constitutional Law: Public Officers and Employees: Liability.The standard by which a supervisor is held liable under 42 U.S.C. § 1983 (2012) in his or her individual capacity for the actions of a subordinate is extremely rigorous.
36. Constitutional Law: Public Officers and Employees: Liability: Proof.To hold a supervisor liable under 42 U.S.C. § 1983 (2012), the plaintiff must establish that the supervisor personally participated in the unconstitutional conduct or was otherwise the moving force of the violation by authorizing, approving, or knowingly acquiescing in the unconstitutional conduct.
D.M., previously an inmate at the Omaha Correctional Center (OCC), filed a complaint against the State of Nebraska and the Nebraska Department of Correctional Services (DCS) and against Robert P. Houston, the director of the DCS; John Doe # 1 (Doe), an investigator for the DCS; Jim Brown, a unit manager at the OCC; and Anthony Hansen, a prison guard at the OCC, all in their individual and official capacities. D.M. alleged that he was sexually assaulted by Hansen while D.M. was incarcerated at the OCC and that when D.M. reported the sexual assault, he was placed in disciplinary segregation for over 30 days. D.M.'s complaint contained several tort and constitutional violation claims against the above-named defendants; pursuant to a motion to dismiss filed by the State, the Douglas County District Court dismissed D.M.'s entire complaint with prejudice, concluding that all of his claims were barred by sovereign immunity. We affirm in part, and in part reverse and remand for further proceedings.
D.M. filed a complaint on December 10, 2013, alleging the following facts:
D.M. was admitted as an inmate to the OCC in December 2011, with an expectation of parole in February 2012....
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