Shearer v. Leuenberger

Decision Date02 April 1999
Docket NumberNo. S-97-852,S-97-852
PartiesMary SHEARER, Appellant, v. Donald S. LEUENBERGER, Individually and in His Capacity as the Director of the Nebraska Department of Social Services, et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision below.

2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision.

3. Summary Judgment: Appeal and Error. The denial of a summary judgment motion is neither appealable nor reviewable, except where adverse parties have each moved for summary judgment and the trial court has sustained one of the motions.

4. Constitutional Law: Jurisdiction: States. Although the states have concurrent jurisdiction to entertain actions pursuant to 42 U.S .C. § 1983 (1994), as a result of the Supremacy Clause found in U.S. Const. art. VI, federal law is controlling and preempts any conflicting state law in determining these claims.

5. Civil Rights: Tort Claims Act. Where a civil rights claim is advanced under federal law, the plaintiff need not comply with the procedural requirements of the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1994).

6. Constitutional Law: Civil Rights: Pleadings. Under federal law, only two factual allegations are necessary to state a cause of action under 42 U.S.C. § 1983 (1994): (1) a defendant's deprivation of a plaintiff's right secured by the Constitution and laws of the United States and (2) that the deprivation occurred under color of law.

7. Constitutional Law: Immunity. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. §§ 1983 or 1985(3) (1994) cannot be immunized by state law.

8. Constitutional Law: States: Public Officers and Employees. Neither a state nor its officials acting in their official capacities are "persons" under 42 U.S.C. § 1983 (1994).

9. Constitutional Law: Public Officers and Employees: Liability. Under 42 U.S.C. § 1983 (1994), public officials sued in their individual capacity are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

10. Constitutional Law: Public Officers and Employees: Proof. For a constitutional right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right.

11. Constitutional Law: Words and Phrases. A plaintiff prevails within the meaning of 42 U.S.C. § 1988 (1994) when actual relief on the merits of his or her claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.

12. Records: Appeal and Error. It is incumbent upon the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed.

13. Judgments: Appeal and Error. A proper result will not be reversed merely because it was reached for the wrong reasons.

Brett McArthur, Lincoln, for appellant.

Don Stenberg, Attorney General, Royce N. Harper, and Michael J. Rumbaugh, Special Assistant Attorney General, Lincoln, for appellee.



The appellant, Mary Shearer, was charged with child neglect after her 4-year-old son, J.S., disobeyed her instruction not to play in the cab of a pickup truck parked in her driveway. The child apparently moved the gearshift, allowing the truck to roll down the driveway and strike a parked car. The criminal charges against Shearer were dismissed, but the case was still investigated by Jodine Allen, an investigator with the then Nebraska Department of Social Services (DSS). Shearer, on the advice of her attorney, refused to allow Allen to interview Shearer or Shearer's children, and Allen, based solely on the police report of the incident, identified Shearer as a potential child abuser in the Abused or Neglected Child Registry (Registry) maintained by DSS. Shearer sued the appellees in the instant action, Allen and Donald Leuenberger, the director of DSS, in their individual and official capacities, and DSS itself. After the district court entered an injunction against DSS, Shearer's name was permanently expunged from the Registry. Shearer maintained her suit, seeking damages for emotional distress and loss of reputation allegedly resulting from violations of her constitutional rights. The district court entered judgment in favor of the appellees and dismissed Shearer's suit. The initial question presented in this case is whether Shearer's action is barred by sovereign immunity. For the reasons that follow, we conclude that Shearer's action is barred by sovereign immunity, and we affirm the judgment of the district court.


On June 28, 1995, Shearer's child C.S., then 5 years old, went outside to play. C.S. had asked Shearer if he and some neighbor children could play in a pickup truck that was parked outside. The truck belonged to Shearer's boyfriend and was parked in the driveway of the Shearer residence. Shearer told C.S. that he was not allowed to play in the cab of the truck, but that he and his friends could play in the bed of the truck.

Nonetheless, a few minutes later, C.S. came back into the house and reported that the truck had "rolled out of the driveway and hit [a parked] car" belonging to a friend of Shearer's who was visiting at the time. C.S.'s brother J.S., then 4 years old, had climbed into the cab of the truck and played with the gearshift, evidently shifting the truck out of gear so that it rolled down the driveway. J.S. had been in the cab of the truck, while C.S. and at least three neighbor children had been in the bed of the truck at the time. One child reportedly struck her head, but no serious injuries were reported. There was minor damage to the car, but no one at the Shearer residence called the police.

The police nevertheless appeared about 20 minutes later, apparently having been called by a neighbor, and Shearer was cited for misdemeanor child abuse and neglect for leaving children unattended in a vehicle. The criminal charges were ultimately dismissed on October 11, 1995.

On August 21, 1995, Shearer was contacted by Allen, a caseworker with DSS. Allen stopped at the Shearer residence and finding no one home, left a note for Shearer asking her to contact Allen. Shearer did not do so, and on August 31, Allen contacted Shearer by telephone. Allen explained to Shearer that Allen's duty was to follow up on the police report, and Shearer told Allen that Shearer would not speak with Allen, on advice of counsel, and that Allen should contact Shearer's attorney.

Allen called Shearer's attorney the same day and explained that she wanted to meet with Shearer and her children; Shearer's attorney asked a few questions and said that he would talk to Shearer. Allen did not hear from Shearer or her attorney, so Allen called Shearer's attorney again on September 28, 1995. Shearer's attorney told Allen to send a list of specific questions that she wanted to ask Shearer. Allen explained that she did not typically ask a specific set of questions, but she did send Shearer's attorney DSS' "Child At Risk Field" risk assessment tool.

At the same time Allen sent the risk assessment form to Shearer's attorney, Allen also asked that an interview between Allen and Shearer be scheduled by a certain date, but Allen received no response to this request. On November 8, 1995, Allen again contacted Shearer and informed her that although the criminal case had been dismissed, DSS' investigation had not been completed. Shearer again said that she needed to speak with her attorney.

On November 21, 1995, Allen sent a letter to both Shearer and her attorney, stating that unless Shearer was willing to be interviewed, Allen would close the investigation on December 4. Allen wrote that her conclusion would be based on the police report of the incident, because, without interviewing Shearer, that would be the only evidence Allen had. Allen further indicated, in essence, that the police report, standing alone, would substantiate the charge of child neglect.

On December 4, 1995, not having met with Shearer or her attorney, Allen closed the investigation. Allen then sent Shearer a letter informing her that her name had been entered into DSS' "Central Registry" for reported child abuse and neglect. The report relating to Shearer was categorized as "inconclusive," meaning that the investigation indicated "by a preponderance of the evidence that maltreatment has occurred." The letter also informed Shearer of the procedures available if she wanted her name removed from the Registry. The letter, however, was sent by certified mail, and Shearer did not pick up the letter.

Shearer nonetheless discovered in late December that her name had been placed in the Registry. Shearer said that she was "devastated" by this discovery and was "humiliated, depressed, angry, just stressed."

Shearer sued in the district court, seeking an injunction directing DSS to remove her name from the Registry. Shearer also sought damages from DSS and Leuenberger and Allen, in both their individual and official capacities. Shearer's petition alleged two "causes of action," the first based on alleged violation of her right to remain silent under Nebraska law and the 5th Amendment to the U.S. Constitution and the second based...

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