John Doe v. Bd. Of Regents Of The Univ. Of Neb. .
| Decision Date | 27 August 2010 |
| Docket Number | No. S-09-256.,S-09-256. |
| Citation | 788 N.W.2d 264,280 Neb. 492 |
| Parties | John DOE, appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA et al., appellees. |
| Court | Nebraska Supreme Court |
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Syllabus by the Court
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.
2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.
3. Motions to Dismiss: Immunity. A trial court may properly address a claim of sovereign immunity under a Neb. Ct. R. Pldg. § 6-1112(b)(6) motion.
4. Notice: Service of Process. Although Neb.Rev.Stat. § 25-505.01 (Reissue 2008) does not require service to be sent to the defendant's residence or restrict delivery to the addressee, due process requires notice to be reasonably calculated to apprise interested parties of the pendency of the action and to afford them the opportunity to present their objections.
5. Service of Process: Waiver. Under Neb.Rev.Stat. § 25-516.01 (Reissue 2008), voluntary appearance of the party is equivalent to service that waives a defense of insufficient service or process if the party requests general relief from the court on an issue other than sufficiency of service or process, or personal jurisdiction.
6. Public Officers and Employees: Service of Process: Claims. State officials, in their individual capacity, can challenge service while still reserving the right, in their official capacity, to contest a plaintiff's claims on other grounds.
7. Constitutional Law: Immunity. The 11th Amendment does not define the scope of the states' sovereign immunity. States also have inherent immunity from suit.
8. Constitutional Law: Immunity: Waiver. Under 11th Amendment immunity, a nonconsenting state is generally immune from suit unless the state has waived its immunity or Congress has validly abrogated it.
9. Constitutional Law: Immunity: Municipal Corporations. Eleventh Amendment immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the state.
10. Constitutional Law: Immunity: Public Officers and Employees: Declaratory Judgments: Injunction. Eleventh Amendment immunity does not bar a claim against state officers which seeks only prospective declaratory or injunctive relief for ongoing violations of federal law.
11. Actions: Immunity. Under state sovereign immunity, a suit against a state agency is a suit against the state.
12. Actions: Public Officers and Employees: Immunity. A court must determine whether actions against individual officials sued in their official capacities are in reality actions against the state and therefore barred by sovereign immunity.
13. Actions: Public Officers and Employees: Immunity. An action against a public officer to obtain relief from an invalid act or from an abuse of authority by the officer or agent is not a suit against the state and is not prohibited by sovereign immunity.
14. Actions: Public Officers and Employees: Immunity. Actions to restrain a state official from performing an affirmative act and actions to compel an officer to perform an act the officer is legally required to do are not barred by state sovereign immunity unless the affirmative act would require the state official to expend public funds.
15. Public Officers and Employees: Immunity. If the State does not have immunity from suit, state officials sued in their official capacity cannot assert it.
16. Tort Claims Act: Governmental Subdivisions. The State Tort Claims Act governs tort claims brought against the Board of Regents of the University of Nebraska and the University of Nebraska Medical Center.
17. Tort Claims Act: Jurisdiction: Immunity: Waiver. Once a plaintiff establishes subject matter jurisdiction under the State Tort Claims Act, the defendant may affirmatively plead that the plaintiff has failed to state a cause of action under Neb.Rev.Stat. § 81-8,219 (Reissue 2008) because an exception to the waiver of sovereign immunity applies.
18. Tort Claims Act: Fraud. Fraud by concealment is a form of deceit and therefore falls within the ambit of Neb.Rev.Stat. § 81-8,219(4) (Reissue 2008).
19. Constitutional Law: Immunity. Although by its terms, the 11th Amendment applies only to suits against a state by citizens of another state, the U.S. Supreme Court has extended the 11th Amendment's applicability to suits by citizens against their own states.
20. Constitutional Law: Immunity. For Congress to abrogate a state's 11th Amendment immunity, it must (1) unequivocally intend to do so and (2) act under a valid grant of constitutional authority.
21. Constitutional Law: Immunity. Under § 5 of the 14th Amendment, Congress may enact legislation abrogating state sovereign immunity to remedy and prevent violations of that amendment. This authority permits Congress to enact prophylactic legislation that both prevents and deters unconstitutional conduct by prohibiting conduct that is somewhat broader than the conduct forbidden by the amendment.
22. Constitutional Law: Immunity. To be classified as remedial, and therefore a valid exercise of its power under § 5 of the 14th Amendment, Congress' legislation abrogating state sovereign immunity must exhibit a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
23. Constitutional Law: Immunity: Federal Acts: Discrimination. Congress has validly abrogated the State's 11th Amendment immunity regarding claims under title II of the Americans with Disabilities Act of 1990 when a plaintiff alleges discrimination in public education.
24. Actions: Federal Acts: Discrimination. A plaintiff seeking recovery for a violation under title II of the Americans with Disabilities Act of 1990 must allege the following: (1) The plaintiff has a disability; (2) the plaintiff is otherwise qualified to receive the benefits of a public service, program, or activity; and (3) the defendants excluded the plaintiff from participation in or denied the plaintiff the benefits of such service, program, or activity or otherwise discriminated against the plaintiff because of his or her disability.
25. Immunity: Federal Acts: Discrimination. In general, courts should follow the Supreme Court's analytical framework set out in United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), for determining abrogation of sovereign immunity in claims under title II of the Americans with Disabilities Act of 1990.
26. Due Process. Due process principles protect individuals from arbitrary deprivation of life, liberty, or property without due process of law.
27. Due Process. A plaintiff asserting the inadequacy of procedural due process must first establish that the government deprived him or her of interests which constitute “liberty” or “property” interests within the meaning of the Due Process Clause.
28. Schools and School Districts: Due Process. For academic dismissals, due process is satisfied if the student was informed of the nature of the faculty's dissatisfaction and the potential for dismissal and if the decision to dismiss was careful and deliberate.
John Doe, pro se.
Amy L. Longo and George T. Blazek, of Ellick, Jones, Buelt, Blazek & Longo, Omaha, for appellees.
John Doe sued the Board of Regents of the University of Nebraska (Board), the University of Nebraska Medical Center (UNMC), and the following UNMC faculty members in each individual's official and individual capacities: John Gollan, M.D., Ph.D.; Carl Smith, M.D.; Sonja Kinney, M.D.; Jeffery Hill, M.D.; David O'Dell, M.D.; Wendy Grant, M.D.; Sharon Stoolman, M.D.; and Michael Spann, M.D. (collectively the UNMC faculty members). Doe seeks damages for fraudulent concealment, alleged violations of his constitutional rights, and breach of contract stemming from his dismissal from UNMC's College of Medicine.
The district court dismissed with prejudice Doe's complaint against the UNMC faculty members in their individual capacities because Doe did not perfect service. The court also dismissed with prejudice Doe's complaint against the Board, UNMC, and the UNMC faculty members in their official capacities. The court found that Doe failed to state a claim for which relief can be granted or that his claims were barred by sovereign immunity. Doe appeals.
We affirm in part and reverse in part. We conclude that the court properly dismissed Doe's claims for fraudulent concealment, violation of his due process rights, and breach of contract. But the court erred in dismissing Doe's claims under title II of the Americans with Disabilities Act of 1990(ADA) 1 and § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) 2 against the Board, UNMC, and the UNMC faculty members in their official capacities. We conclude that Congress has validly abrogated 11th Amendment immunity for title II claims of discrimination in public education. And the State now concedes that it waived immunity for claims under the Rehabilitation Act. We also reverse the district court's dismissal of the UNMC faculty members, in their individual capacities, and remand the cause for a...
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