867 N.W.2d 622
Neb. Ct. App.2015Background
- Plaintiff D.M., a former Omaha Correctional Center (OCC) inmate, alleged he was sexually assaulted by correctional officer Anthony Hansen while incarcerated and preserved biological evidence.
- After reporting the assault, D.M. alleges he was placed in disciplinary segregation for over 30 days, threatened, denied counseling for a lengthy period, and later transferred to a higher-security facility.
- D.M. sued the State of Nebraska, Nebraska Department of Correctional Services (DCS), Director Robert P. Houston, an investigator (Doe), unit manager Jim Brown, and Hansen — naming some defendants in both official and individual capacities — asserting torts and federal and state constitutional claims, including § 1983 causes of action.
- The State moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), raising sovereign immunity; the district court dismissed the entire complaint with prejudice, concluding the intentional tort exception barred all claims.
- On appeal, the Nebraska Court of Appeals reviewed de novo, distinguishing claims arising directly from the assault (covered by the intentional-tort exception) from subsequent retaliatory or disciplinary conduct alleged after the report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tort claims are barred by STCA intentional-tort exception | D.M. contends some tort claims (e.g., infliction of emotional distress) arise from retaliatory discipline after reporting, not from the assault itself | State argues all torts arise from the assault and thus fall within § 81-8,219(4) exception (no waiver) | Court: negligent hiring/supervising, failure to protect, and respondeat superior claims arise from assault and are barred; claims for intentional and negligent infliction of emotional distress based on retaliatory conduct are not barred and reversed/remanded |
| Whether claim against Hansen (individual) for intentional infliction of emotional distress is barred by STCA | D.M.: claim against Hansen in individual capacity is viable | State: sovereign immunity bars claims | Court: claim against Hansen in his individual capacity is not barred by STCA (reversed/remanded) |
| Whether § 1983 and state constitutional claims against State/DCS or officials in official capacities are barred by sovereign immunity | D.M.: § 1983 claims should proceed; § 20-148 may allow bypassing admin remedies | State: Nebraska has not waived sovereign immunity for § 1983 or via § 20-148 | Court: sovereign immunity bars § 1983 and constitutional claims against the State/DCS and officials in their official capacities (affirmed) |
| Whether § 1983 claims against named officials in their individual capacities survive dismissal | D.M.: individual-capacity claims for retaliation, Eighth/Equal Protection survive | State: dismissal proper; additionally argued qualified immunity for some officials | Court: sovereign immunity does not bar individual-capacity suits; claims against Brown, Doe, and Hansen in individual capacities reversed/remanded; claims against Houston individually dismissed for failing to plead personal participation; qualified immunity not considered on appeal |
Key Cases Cited
- Brothers v. Kimball County Hosp., 289 Neb. 879 (standard for de novo review of dismissal) (accept well-pled facts; reject conclusions)
- Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 540 (sovereign immunity principles; official-capacity suits treated as suits against the State)
- Johnson v. State, 270 Neb. 316 (STCA intentional-tort exception bars claims that arise out of assault/battery by state employee)
- Britton v. City of Crawford, 282 Neb. 374 (plaintiff cannot avoid intentional-tort exception by pleading negligent failure to prevent assault)
- Potter v. Board of Regents, 287 Neb. 732 (§ 20-148 does not waive sovereign immunity)
- SID No. 1 v. Adamy, 289 Neb. 913 (waiver of sovereign immunity strictly construed; presumption against waiver)
- Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66 (DCS is a state agency)