Anthony K. v. Nebraska Dept. of Health & Human Servs. ( 2014 )

Nebraska Advance Sheets
540 289 NEBRASKA REPORTS
Anthony K. and Arva K., individually and as
guardians and next friends on behalf of
their minor children, Ashley K. et al.,
appellants, v. Nebraska Department
of Health and Human Services
et al., appellees.
___ N.W.2d ___
Filed November 21, 2014. No. S-12-736.
1. Motions to Dismiss: Immunity: Appeal and Error. An appellate court reviews
de novo whether a party is entitled to dismissal of a claim based on federal or
state immunity, drawing all reasonable inferences for the nonmoving party.
2. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
3. Actions: Immunity. A suit against a state agency is a suit against the State and
is subject to sovereign immunity.
4. 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.
5. Actions: Public Officers and Employees: Immunity: Appeal and Error. In
reviewing actions against state officials, a court must determine whether an action
against individual officials sued in their official capacities is in reality an action
against the state and therefore barred by sovereign immunity.
6. Actions: Parties. In an action for the recovery of money, the State is the real
party in interest.
7. Actions: Public Officers and Employees: Immunity: Waiver: Damages.
Sovereign immunity—if not waived—bars a claim for money even if the plaintiff
has named individual state officials as nominal defendants.
8. Actions: Parties: Public Officers and Employees. Official-capacity actions for
prospective relief are not treated as actions against the State.
9. Public Officers and Employees: Immunity. Where a court commands a state
official to do nothing more than refrain from violating federal law, he or she is
not the State for sovereign immunity purposes.
10. Public Officers and Employees: Immunity: Declaratory Judgments:
Injunction. The State’s sovereign 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: Guardians Ad Litem: Damages: Immunity. A guardian ad litem is
entitled to absolute immunity from any suit for damages based upon conduct
within the scope of his or her judicially imposed duties as guardian ad litem.
12. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
13. Limitations of Actions: Pleadings. A challenge that a pleading is barred by the
statute of limitations is a challenge that the pleading fails to allege sufficient facts
to constitute a claim upon which relief can be granted.
Nebraska Advance Sheets
ANTHONY K. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS. 541
Cite as 289 Neb. 540
14. 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.
15. Motions to Dismiss: Appeal and Error. When reviewing a dismissal order, the
appellate court accepts as true all the facts which are well pled and the proper and
reasonable inferences of law and fact which may be drawn therefrom, but not the
pleader’s conclusions.
16. Civil Rights: Limitations of Actions: States. The law of the state in which an
action is brought under 42 U.S.C. § 1983 (2012) provides the appropriate statute
of limitations.
17. Civil Rights: Limitations of Actions. For purposes of selecting one statute of
limitations, actions brought under 42 U.S.C. § 1983 (2012) shall be characterized
as personal injury actions.
18. ____: ____. In Nebraska, claims brought under 42 U.S.C. § 1983 (2012) are
governed by the statute of limitations in Neb. Rev. Stat. § 25-207 (Reissue 2008).
19. Limitations of Actions. A statute of limitations begins to run as soon as the
claim accrues.
20. Civil Rights: Limitations of Actions: States. Although state law determines
which statute of limitations applies to a claim brought under 42 U.S.C. § 1983
(2012), the accrual date of a § 1983 cause of action is a question of federal law
that is not resolved by reference to state law.
21. Civil Rights: Limitations of Actions. A claim brought under 42 U.S.C. § 1983
(2012) generally accrues when the plaintiff has a complete and present cause
of action.
22. Constitutional Law: Civil Rights: Pleadings. In order to state a cause of
action under 42 U.S.C. § 1983 (2012), a plaintiff must allege facts establishing
conduct by a person acting under color of state law which deprived the plaintiff
of rights, privileges, or immunities secured by the Constitution and laws of the
United States.
23. Constitutional Law: Civil Rights: Limitations of Actions. A claim under 42
U.S.C. § 1983 (2012) accrues when a plaintiff knows or should know that his
or her constitutional rights have been violated. The plaintiff is deemed to know
or have reason to know at the time of the act itself and not at the point that the
harmful consequences are felt.
24. Limitations of Actions: Torts. The continuing tort doctrine does not delay when
claims based on continuing torts accrue.
25. ____: ____. The continuing tort doctrine is not a separate doctrine, or an excep-
tion to the statute of limitations, as much as it is a straightforward application of
the statute of limitations: It simply allows claims to the extent that they accrue
within the limitations period.
Appeal from the District Court for Douglas County: J Russell
Derr, Judge. Affirmed.
Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for
appellants.
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Jon Bruning, Attorney General, and John L. Jelkin for
appellees Nebraska Department of Health and Human Services
et al.
Monica Green Kruger for appellee Richard Bollerup.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ., and Bishop, Judge.
Wright, J.
I. NATURE OF CASE
This appeal involves the second of two cases brought under
42 U.S.C. § 1983 (2012) by Anthony K. and Arva K., indi-
vidually and as guardians and next friends on behalf of their
seven minor children. In both this and the first case, the plain-
tiffs alleged that over the course of the juvenile proceedings
involving three of their children, the plaintiffs’ constitutional
and statutory rights had been violated.
The plaintiffs’ claims against the State of Nebraska were
determined in Anthony K. v. State, ante p. 523, ___ N.W.2d
___ (2014) (Anthony K. I), where we held that all six of the
plaintiffs’ causes of action against the State were barred by
sovereign immunity. The instant case deals with the plaintiffs’
claims against the Nebraska Department of Health and Human
Services (DHHS), 18 DHHS employees in their official and
individual capacities, and the children’s guardian ad litem.
Although premised on the same facts and arising from the
same allegations as Anthony K. I, this case presents different
issues for our resolution.
In the instant case, the plaintiffs appeal the orders of the
Douglas County District Court that sustained the defendants’
motions to dismiss. In particular, the plaintiffs challenge the
district court’s findings that the defendants were entitled to
sovereign, qualified, absolute, and statutory immunities and
that the plaintiffs’ claims against the DHHS employees in their
individual capacities were barred by the statute of limitations.
For the following reasons, we affirm the dismissal of the plain-
tiffs’ claims.
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Cite as 289 Neb. 540
II. SCOPE OF REVIEW
[1] We review de novo whether a party is entitled to dis-
missal of a claim based on federal or state immunity, drawing
all reasonable inferences for the nonmoving party. Michael E.
v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).
[2] A district court’s grant of a motion to dismiss is reviewed
de novo. Estate of Teague v. Crossroads Co-op Assn., 286 Neb.
1, 834 N.W.2d 236 (2013).
III. FACTS
The background information in this case is discussed at
length in Anthony K. I. In summary, three minor children of
the plaintiffs, Ashley K.; Anthony K., Jr. (Anthony Jr.); and
Ali K., were removed from the family home in 2000. For
various reasons, the children were not returned to the care of
their parents until 2008 and the juvenile case was not closed
until 2009.
The plaintiffs initially filed suit against the State, DHHS,
the individual DHHS employees assigned to the juvenile case,
and the guardian ad litem. However, due to lack of proper
service, the district court dismissed all defendants except the
State. Because more than 6 months had passed from the filing
of the initial lawsuit, any service of process under the plain-
tiffs’ first complaint would have been ineffective on DHHS,
the DHHS employees, and the guardian ad litem. See Neb.
Rev. Stat. § 25-217 (Reissue 2008). Therefore, the plaintiffs
filed the present lawsuit against these parties under a sepa-
rate complaint.
The plaintiffs alleged that DHHS, the DHHS employees, and
the guardian ad litem violated the plaintiffs’ right to familial
integrity. They claimed that Ashley, Anthony Jr., and Ali were
wards of the State from 2000 to 2009 and that the family was
separated for too long. They alleged that DHHS and the DHHS
employees failed to make reasonable efforts to preserve or
reunify the family and that they had a duty to reunify the fam-
ily sooner than when it finally occurred. The plaintiffs asked
for declaratory judgment, general and special damages, costs,
and attorney fees. They did not seek injunctive relief.
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Richard Bollerup, the guardian ad litem for the minor
children, moved to dismiss for failure to state a claim upon
which relief could be granted. Subsequently, DHHS and the
DHHS employees in their official capacities also moved
to dismiss.
On September 1, 2011, the district court determined that
DHHS and the DHHS employees sued in their official capaci-
ties were shielded by sovereign immunity from an action
brought under 42 U.S.C. § 1983 and could not be liable to the
plaintiffs for monetary damages. It thus sustained the motions
to dismiss as to the plaintiffs’ § 1983 claims against DHHS
and the DHHS employees in their official capacities. It sus-
tained Bollerup’s motion to dismiss based on his right to abso-
lute immunity as the guardian ad litem. Following this order,
the only defendants remaining in the action were the DHHS
employees in their individual capacities.
Of the 18 DHHS employees sued by the plaintiffs, 2 were
not named in their individual capacities and 10 were not
properly served in that capacity. Those 12 employees were
not parties to the present action in their individual capacities.
Between August and October 2011, the six employees who
had been properly served (David Hammer, Todd Reckling,
Chris Peterson, Sandy Thompson, Jennifer Holt, and Jessica
Hatfield) filed motions to dismiss the plaintiffs’ claims against
them in their individual capacities. They argued that these
claims should be dismissed, because the claims were barred
by sovereign, qualified, absolute, and statutory immunities and
by the statute of limitations. Hereinafter, we refer to the six
DHHS employees who were parties to the present action in
their individual capacities and who filed motions to dismiss as
“the six employees.”
On February 3, 2012, the district court sustained the
motions to dismiss filed by the six employees. It determined
that they had (1) sovereign immunity for all actions per-
formed within the scope of their duties as DHHS employ-
ees; (2) absolute immunity for any testimony given by them
as witnesses in the juvenile court hearings; (3) qualified
immunity, because there was no clearly established right to
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familial integrity; and (4) statutory immunity under the Adult
Protective Services Act.
The district court also concluded that the claims against the
six employees in their individual capacities were barred by the
applicable statute of limitations. It explained that even if there
was a continuing pattern of tortious conduct, as the plaintiffs
had argued, recovery for each injury had to be sought within 4
years. Given that the plaintiffs’ complaint was filed on March
8, 2011, their “period of recovery would be limited to the
four years before that date.” However, the plaintiffs complaint
contained “no allegations against [the six employees], in their
individual capacities, after 2005.” Therefore, the court held
that the statute of limitations for the plaintiffs’ claims against
the six employees in their individual capacities ran “sometime
in 2009.”
On March 5, 2012, the plaintiffs appealed the district court’s
decisions. The Nebraska Court of Appeals issued an order
to show cause why the district court’s orders were final and
appealable. The record before the Court of Appeals did not
include dismissal orders for the DHHS employees who had
not been properly served in their individual capacities. The
plaintiffs failed to respond, and on June 8, 2012, in case No.
A-12-194, the appeal was dismissed without opinion.
On July 20, 2012, at the request of the plaintiffs, the district
court issued an order dismissing the DHHS employees who
had not been properly served in their individual capacities. On
August 15, the plaintiffs timely filed the present appeal. We
moved the case to our docket on our own motion. See Neb.
Rev. Stat. § 24-1106(3) (Reissue 2008).
IV. ASSIGNMENTS OF ERROR
The plaintiffs assign, summarized and restated, that the
district court erred in (1) sustaining the defendants’ motions
to dismiss; (2) finding that the defendants were shielded
from liability on the basis of sovereign, absolute, qualified,
and statutory immunities; (3) failing to find any exception
to the defendants’ immunity; (4) finding that the plaintiffs
failed to plead that their constitutionally protected rights were
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violated; (5) finding that their claims were barred by appli-
cable statutes of limitations; and (6) holding that their claims
were based in tort.
V. ANALYSIS
1. Motion to Dismiss Filed by
DHHS and DHHS Employees
in Official Capacities
The district court sustained the motion to dismiss filed by
DHHS and the DHHS employees in their official capacities,
because it concluded that they were immune from the plain-
tiffs’ § 1983 claims.
(a) DHHS
[3] A suit against a state agency is a suit against the State
and is subject to sovereign immunity. Michael E. v. State, 286
Neb. 532, 839 N.W.2d 542 (2013). “A suit generally may not
be maintained directly against . . . an agency or department of
the State, unless the State has waived its sovereign immunity.”
Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670,
684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982). In Anthony
K. I, we determined that the State had not waived its sover-
eign immunity as to § 1983 claims. In the absence of such a
waiver, the plaintiffs’ claims against DHHS in the instant case,
which were brought under § 1983, are also barred by sover-
eign immunity.
The plaintiffs argue that even though the State did not
waive its sovereign immunity, DHHS was nonetheless subject
to liability, because it was implementing an unconstitutional
“‘policy statement, ordinance, regulation or decision officially
adopted’” and acting “‘pursuant to governmental “custom.”’”
See brief for appellants at 15. We previously addressed this
argument, and dismissed it, in Anthony K. I. The district court
did not err in sustaining DHHS’ motion to dismiss.
(b) DHHS Employees in
Official Capacities
We first clarify that sovereign immunity has potential appli-
cability to suits brought against state officials in their official
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capacities only. It does not apply when state officials are sued
in their individual capacities—that is, when a suit seeks to hold
state officials personally liable. See Hafer v. Melo, 502 U.S.
21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). This is true even
when state officials are sued in their individual capacities for
acts taken within the scope of their duties and authority as state
officials. See id.
[4,5] “Official-capacity suits . . . ‘generally represent only
another way of pleading an action against an entity of which an
officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165,
105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Thus, in reviewing
actions against state officials, “a court must determine whether
an action against individual officials sued in their official
capacities is in reality an action against the state and therefore
barred by sovereign immunity.” Michael E., 286 Neb. at 540,
839 N.W.2d at 550-51.
[6,7] In an action for the recovery of money, the State is the
real party in interest. Id. This is because “‘a judgment against
a public servant “in his official capacity” imposes liability
on the entity that he represents.’” See Graham, 473 U.S. at
169. Accordingly, “sovereign immunity—if not waived—bars a
claim for money even if the plaintiff has named individual state
officials as nominal defendants.” Michael E., 286 Neb. at 541,
286 N.W.2d at 551.
[8-10] In contrast, “official-capacity actions for prospective
relief are not treated as actions against the State.” Graham,
473 U.S. at 167 n.14. See, also, VA Office for Prot. and
Advoc. v. Stewart, ___ U.S. ___, 131 S. Ct. 1632, 179 L. Ed.
2d 675 (2011). Where a court “commands a state official to
do nothing more than refrain from violating federal law, he
[or she] is not the State for sovereign-immunity purposes.”
Stewart, 131 S. Ct. at 1638. Thus, the State’s sovereign immu-
nity “does not bar a claim against state officers which seeks
only prospective declaratory or injunctive relief for ongoing
violations of federal law.” See Doe v. Board of Regents, 280
Neb. 492, 510, 788 N.W.2d 264, 281 (2010). See, also, Green
v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371
(1985); Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.
2002); Bragg v. West Virginia Coal Ass’n, 248 F.3d 275 (4th
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Cir. 2001); Walker v. Livingston, 381 Fed. Appx. 477 (5th
Cir. 2010).
In the instant case, the plaintiffs sued the DHHS employees
in their official capacities for general and special damages,
costs, and attorney fees and for a declaratory judgment that
they had violated the plaintiffs’ rights. The plaintiffs did not
seek injunctive relief. As we determined in Anthony K. I, the
State has not waived its sovereign immunity as to § 1983
claims. Therefore, the plaintiffs’ claims against the DHHS
employees in their official capacities which were brought
pursuant to § 1983 and which sought monetary damages
are barred by sovereign immunity. Additionally, the plaintiffs’
claims against the employees in their official capacities for
declaratory judgment are barred, because they did not allege
a continuing violation of federal law. Nor is there a threat
of future violations—Ashley, Anthony Jr., and Ali’s juvenile
case is closed, and the family no longer lives in Nebraska.
In the absence of such allegations, the plaintiffs’ claims for
declaratory judgment do not fall within the limited exception
for actions seeking prospective relief for ongoing violations of
federal law.
All of the plaintiffs’ claims against the DHHS employees in
their official capacities are barred by sovereign immunity. The
district court did not err in sustaining the motions to dismiss as
to the DHHS employees in their official capacities.
2. Motion to Dismiss Filed
by Guardian A d Litem
The district court sustained the guardian ad litem’s motion
to dismiss, because it concluded that he was immune from the
plaintiffs’ § 1983 claims. We agree.
Most public officials are entitled only to qualified immu-
nity. Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606,
125 L. Ed. 2d 209 (1993). However, certain officials are given
“absolute protection from damages liability” for their per­
formance of specific functions. See Buckley, 509 U.S. at 269.
Such absolute immunity originated in common law and was
intended to “protect the integrity of the judicial process.” See
Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 88
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L. Ed. 2d 507 (1985). See, also, Briscoe v. LaHue, 460 U.S.
325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983).
In the instant case, the district court determined, based on
Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997), that
absolute immunity should extend to Bollerup, the children’s
guardian ad litem. The plaintiffs argue that it should not.
[11] In Billups, supra, we considered whether guardians ad
litem were entitled to absolute immunity. We explained that
the scope of absolute immunity was determined by “official
functions performed, and not the office held.” See id. at 290,
571 N.W.2d at 605. And we noted that in order to determine
whether to grant absolute immunity, a court must “examine
the nature of the functions with which a particular official
. . . has been lawfully entrusted.” See id. After examining the
role of guardians ad litem, we agreed with the conclusion of
a Colorado court that guardians ad litem were “adjunct[s] of
the court.” Id. at 292, 571 N.W.2d at 606. Thus, we concluded
that a guardian ad litem is entitled to absolute immunity from
any suit for damages based upon conduct within the scope of
his or her judicially imposed duties as guardian ad litem. See
Billups, supra.
Other courts have similarly recognized that a guardian ad
litem has absolute immunity for actions that he or she takes as
part of the judicial process. See, e.g., Dahl v. Charles F. Dahl,
M.D., P.C., 744 F.3d 623 (10th Cir. 2014); Jones v. Brennan,
465 F.3d 304 (7th Cir. 2006); Dornheim v. Sholes, 430 F.3d
919 (8th Cir. 2005); Fleming v. Asbill, 42 F.3d 886 (4th Cir.
1994); Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989); Gardner
by Gardner v. Parson, 874 F.2d 131 (3d Cir. 1989).
The plaintiffs argue the district court incorrectly relied on
Billups to determine that Bollerup was entitled to absolute
immunity, because the guardian ad litem in Billups was sued
under a negligence theory and not in a § 1983 action. We do
not find this difference significant. In Billups, we determined
that absolute immunity attached to the functions performed
by guardians ad litem within the scope of their duties as
adjuncts of a court. Under that test, the applicability of abso-
lute immunity to any particular action depended upon whether
the action was performed within the scope of the guardian ad
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litem’s duties and not upon the theory under which he or she
was sued. Indeed, in Billups, we discussed with approval a
case in which absolute immunity was held to protect a guard-
ian ad litem from § 1983 claims. See Kurzawa v. Mueller, 732
F.2d 1456 (6th Cir. 1984). The absolute immunity recognized
in Billups was not limited to negligence actions against guard-
ians ad litem.
The district court did not err in relying upon Billups, supra,
or in concluding, based upon that case, that Bollerup was abso-
lutely immune from the plaintiffs’ complaint. Bollerup was
entitled to absolute immunity against any suit for damages aris-
ing from conduct within the scope of his duties as guardian ad
litem. See id. The plaintiffs’ complaint did not allege any facts
which would support a finding that Bollerup acted outside of
the duties assigned to him by the juvenile court. In the absence
of any such allegations, absolute immunity barred the plain-
tiffs’ claims against Bollerup.
The plaintiffs argued that Bollerup was not entitled to
absolute immunity because he failed to carry out his duties
as guardian ad litem on behalf of the minor children. In the
plaintiffs’ complaint, they alleged that he failed to carry out
his duties by failing to “consult with the children . . . through-
out the life of the case.” The district court concluded that this
allegation did not defeat Bollerup’s absolute immunity, and
we agree.
In Marr v. Maine Dept. of Human Services, 215 F. Supp.
2d 261 (D. Me. 2002), the mother of a minor child who was
killed while in the state’s care sued the guardian ad litem who
handled her child’s juvenile case. She alleged that the negli-
gence of the guardian ad litem led to the death of her child,
because the guardian ad litem did not perform any investiga-
tions into how the child was being treated, did not report that
the child was being abused, and saw the child only once during
the pendency of the juvenile proceedings. In finding absolute
immunity, the Maine court concluded that the factual allega-
tions of failure to perform “merely state[d] [the plaintiff’s] dis-
satisfaction with the manner in which [the guardian ad litem]
carried out his appointed duties, rather than alleging instances
in which [the guardian ad litem] performed outside the scope
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of his authorized duties.” Id. at 269. The court held that dis-
satisfaction with the performance of a guardian ad litem’s del-
egated duties was not enough to “remove the protections” of
his or her immunity as guardian ad litem. See id.
We conclude this reasoning is applicable to the case at bar.
The plaintiffs’ claim that Bollerup failed to perform his duties
did not allege that he had acted outside the scope of his duties
as guardian ad litem but merely expressed dissatisfaction with
how he carried out those duties. Such an allegation was not
enough to overcome the absolute immunity to which Bollerup
was entitled in the performance of his judicially delegated
duties. See id.
In the absence of allegations that Bollerup acted outside the
scope of his duties as guardian ad litem, absolute immunity
barred the plaintiffs’ claims against him. The district court did
not err in sustaining his motion to dismiss.
3. Motions to Dismiss Filed
by Six Employees in
Individual Capacities
The district court provided two reasons for dismissing
the plaintiffs’ claims against the six employees in their indi-
vidual capacities: The claims were barred (1) due to various
immunities of the six employees and (2) by the statute of
limitations. In their motions to dismiss, the six employees
pleaded multiple grounds for dismissal, including the statute
of limitations.
[12] Although the plaintiffs assign error to both aspects of
the district court’s decision, we address only the statute of
limitations, because it is dispositive of the plaintiffs’ claims
against the six employees in their individual capacities. An
appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d
868 (2013).
[13] The six employees raised the statute of limitations
within their motions to dismiss pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(6). A challenge that a pleading is barred by the
statute of limitations is a challenge that the pleading fails to
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allege sufficient facts to constitute a claim upon which relief
can be granted. Carruth v. State, 271 Neb. 433, 712 N.W.2d
575 (2006).
[14] 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.
Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746
(2013). As such, if a “complaint on its face shows that the
cause of action is time barred, the plaintiff must allege facts
to avoid the bar of the statute of limitations.” See Lindner v.
Kindig, 285 Neb. 386, 393, 826 N.W.2d 868, 874 (2013). See,
also, L.J. Vontz Constr. Co. v. Department of Roads, 232 Neb.
241, 440 N.W.2d 664 (1989).
[15] To determine whether the district court erred in grant-
ing the six employees’ motions to dismiss on statute of limi-
tations grounds, the first question is whether the face of the
plaintiffs’ complaint shows that the claims against the six
employees were time barred. If it does, we then consider
whether the plaintiffs’ complaint alleged facts that show the
claims are not barred. When reviewing a dismissal order, the
appellate court accepts as true all the facts which are well
pled and the proper and reasonable inferences of law and
fact which may be drawn therefrom, but not the pleader’s
conclusions. White v. Kohout, 286 Neb. 700, 839 N.W.2d
252 (2013).
(a) Face of Complaint Shows
Claims Were Time Barred
[16-18] The plaintiffs sued the six employees in their indi-
vidual capacities under § 1983. The law of the state in which
a § 1983 action is brought provides the appropriate statute
of limitations. Bauers v. City of Lincoln, 245 Neb. 632, 514
N.W.2d 625 (1994). “[F]or purposes of selecting one statute of
limitations, § 1983 actions shall be characterized as personal
injury actions.” Bauers, 245 Neb. at 646, 514 N.W.2d at 634.
In Nebraska, § 1983 claims are governed by the statute of
limitations in Neb. Rev. Stat. § 25-207 (Reissue 2008). See
Bauers, supra. Section 25-207 requires that actions for an
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injury to the plaintiff’s rights be filed within 4 years from the
date on which the action accrued. Bauers, supra.
[19-21] “[A] statute of limitations begins to run as soon
as the claim accrues.” Alston v. Hormel Foods Corp., 273
Neb. 422, 425, 730 N.W.2d 376, 381 (2007). Although state
law determines which statute of limitations applies to § 1983
claims, “the accrual date of a § 1983 cause of action is a
question of federal law that is not resolved by reference to
state law.” See Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct.
1091, 166 L. Ed. 2d 973 (2007) (emphasis in original). The
U.S. Supreme Court has stated that a § 1983 claim generally
accrues “‘when the plaintiff has “a complete and present cause
of action.”’” See Wallace, 549 U.S. at 388.
[22,23] In order to state a cause of action under 42 U.S.C.
§ 1983, a plaintiff must allege facts establishing conduct
by a person acting under color of state law which deprived
the plaintiff of rights, privileges, or immunities secured by
the Constitution and laws of the United States. State ex
rel. Jacob v. Bohn, 271 Neb. 424, 711 N.W.2d 884 (2006).
Therefore, “[a] § 1983 claim accrues ‘when the plaintiff
knows or should know that his or her constitutional rights
have been violated.’” Hileman v. Maze, 367 F.3d 694, 696
(7th Cir. 2004). See, also, Owens v. Baltimore City State’s
Attorneys Office, 767 F.3d 379 (4th Cir. 2014); Hillcrest
Property, LLC v. Pasco County, 754 F.3d 1279 (11th Cir.
2014); Bishop v. Children’s Center for Developmental, 618
F.3d 533 (6th Cir. 2010); Gorelik v. Costin, 605 F.3d 118
(1st Cir. 2010); Douglas v. Noelle, 567 F.3d 1103 (9th Cir.
2009); Kripp v. Luton, 466 F.3d 1171 (10th Cir. 2006); Price
v. City of San Antonio, Tex., 431 F.3d 890 (5th Cir. 2005)
(abrogated on other grounds as recognized by Vidrine v. U.S.,
No. 6:07-1204, 2008 WL 4198547 (W.D. La. Aug. 8, 2008)
(unpublished opinion)); Sameric Corp. Del., Inc. v. City of
Philadelphia, 142 F.3d 582 (3d Cir. 1998); Veal v. Geraci, 23
F.3d 722 (2d Cir. 1994). “‘[The] plaintiff is deemed to know
or have reason to know at the time of the act itself and not
at the point that the harmful consequences are felt.’” Gorelik,
605 F.3d at 122.
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554 289 NEBRASKA REPORTS
In the instant case, the plaintiffs did not allege specifically
when or how each of the six employees acted in a manner that
violated the plaintiffs’ rights. But the sole basis for the plain-
tiffs’ claims against each of the six employees was his or her
involvement in Ashley, Anthony Jr., and Ali’s juvenile case
as a caseworker, case management supervisor, or administra-
tor. Consequently, the plaintiffs’ claims against each of the
six employees in their individual capacities accrued at some
time during his or her individual involvement with the juve-
nile case.
The complaint sets forth when each employee was a case-
worker, case management supervisor, or administrator for
Ashley, Anthony Jr., and Ali’s case:
11. During the course of the case with [DHHS], the
. . . family had the following case managers/case manage-
ment supervisors:
a. Jennifer Holt in 2000
b. Kee-Sha Adams-Parks/David Hamme[r] in 2001
c. Abby Bowers/Sandy Thompson/Tonya Beckenhauer
in 2001
....
f. Jessica Hatfield/Sandy Thompson in 2002
g. Charlie Bennett/Sandy Thompson in 2002, 2003
and 2004
....
87. In July, 2005, [the plaintiffs] meet with [DHHS]
administrators, Todd Reckling and Chris Peterson and
other [DHHS] staff. The [plaintiffs] are told to “drop
everything” and come to this meeting. The administrators
apologize to [the plaintiffs] for the fact that their case had
been going on so long. The administrators tell the [plain-
tiffs] that they have to act quickly to reunify the children
because the Lancaster County Attorney will soon file a
motion to terminate parental rights.
The plaintiffs did not allege that the six employees were
involved with Ashley, Anthony Jr., and Ali’s juvenile case or
had contact with the plaintiffs at any other time.
A § 1983 claim generally accrues when a person knows
or has reason to know that he or she has been injured. See
Nebraska Advance Sheets
ANTHONY K. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS. 555
Cite as 289 Neb. 540
Gorelik v. Costin, 605 F.3d 118 (1st Cir. 2010). Generally, a
person “‘is deemed to know or have reason to know at the
time of the act itself.’” See id. at 122. The plaintiffs did not
claim a failure to discover the alleged injurious conduct by the
six employees. And the plaintiffs did not allege that at the time
each of the six employees engaged in conduct which allegedly
violated the plaintiffs’ rights, they did not know or have rea-
son to know of their injuries. Accordingly, on the face of the
plaintiffs’ complaint, the plaintiffs’ claim against Holt accrued
no later than 2000, because the complaint did not allege that
she engaged in conduct which injured the plaintiffs after 2000.
Similarly, the plaintiffs’ claim against Hammer accrued no
later than 2001, because the plaintiffs did not allege that he
acted in a manner that injured the plaintiffs after 2001. The
plaintiffs’ claim against Hatfield accrued no later than 2002,
because it was not alleged that she engaged in conduct which
injured the plaintiffs after 2002. The plaintiffs’ claim against
Thompson accrued no later than 2004, because the complaint
contained no allegations of conduct by her which injured
the plaintiffs after 2004. And the plaintiffs’ claims against
Reckling and Peterson accrued no later than 2005, because the
plaintiffs did not allege that Reckling and Peterson engaged in
conduct which injured the plaintiffs after 2005.
Under the applicable statute of limitations, the plaintiffs
had 4 years from the date of accrual of each claim to bring an
action or until 2004, 2005, 2006, 2008, and 2009, respectively.
The plaintiffs did not file their complaint until March 2011.
Therefore, the face of the plaintiffs’ complaint shows that the
claims against the six employees were time barred.
(b) Complaint Failed to Allege
Facts Which Show Claims
Are Not Barred
Because the plaintiffs’ complaint on its face showed that
their claims against the six employees were time barred, the
plaintiffs had the burden of alleging “facts to avoid the bar
of the statute of limitations.” See Lindner v. Kindig, 285 Neb.
386, 393, 826 N.W.2d 868, 874 (2013). The plaintiffs did not
do so.
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556 289 NEBRASKA REPORTS
The plaintiffs argue that the continuing tort doctrine applies
to make their claims against the six employees timely. They
assert that there was a “continuing pattern of tortious conduct”
and that as a result, their claims “did not accrue until late
2009,” when Ashley, Anthony Jr., and Ali’s juvenile case was
finally closed. See brief for appellants at 24. This argument
lacks merit.
[24,25] The plaintiffs misunderstand the continuing tort
doctrine. In Nebraska, the continuing tort doctrine does not
delay when claims based on continuing torts accrue. See
Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376
(2007). “[T]he ‘continuing tort doctrine’ is not a separate doc-
trine, or an exception to the statute of limitations, as much as
it is a straightforward application of the statute of limitations:
It simply allows claims to the extent that they accrue within
the limitations period.” Id. at 429-30, 730 N.W.2d at 383. As
such, “a claim for damages caused by a continuing tort can
be maintained for injuries caused by conduct occurring within
the statutory limitations period.” See id. at 429, 730 N.W.2d
at 383. A claim for damages caused by conduct occurring out-
side the statutory period preceding the lawsuit will be barred.
See id.
Applying the continuing tort doctrine to the plaintiffs’ com-
plaint does not make their claims against the six employees
timely. Rather, it highlights that their claims against the six
employees were barred, because they were based on conduct
that occurred more than 4 years before the action was com-
menced in March 2011. The 4-year statutory period preceding
their lawsuit commenced in March 2007. As explained above,
the complaint shows on its face that none of the six employ-
ees engaged in conduct which allegedly injured the plaintiffs
after 2005. Therefore, the claims against the six employees
were based on conduct occurring outside the limitations
period preceding the instant lawsuit and are consequently
time barred.
It may be reasonable to infer that the “ill effects” of the
actions taken by the six employees were felt until 2009,
when the juvenile case was finally closed. But the continu-
ing tort doctrine “requires that a tortious act—not simply the
Nebraska Advance Sheets
ANTHONY K. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS. 557
Cite as 289 Neb. 540
continuing ill effects of prior tortious acts—fall within the
limitation[s] period.” See Alston, 273 Neb. at 426, 730 N.W.2d
at 381. In the absence of any allegations that the six employees
engaged in tortious conduct during the limitations period pre-
ceding the plaintiffs’ lawsuit, the continuing tort doctrine does
not give the plaintiffs any relief.
The plaintiffs argue that until 2009, they were “subjected
to a continuing, cumulative pattern of tortious conduct” by
virtue of the “conduct on the part of the Defendants.” See
brief for appellants at 23. Even assuming, without deciding,
that there may have been other DHHS employees that engaged
in a pattern of tortious conduct within the 4-year limitations
period preceding the plaintiffs’ lawsuit, such conduct cannot
be attributed to the six employees. The face of the plaintiffs’
complaint does not show that any of the six employees worked
on Ashley, Anthony Jr., and Ali’s case during the limita-
tions period.
The plaintiffs did not allege facts in their complaint which
would avoid the bar of the statute of limitations. They did not
allege a pattern of tortious behavior by the six employees that
continued within the limitations period. And the plaintiffs did
not allege facts which indicate that they did not or could not
have discovered the alleged wrongs when they accrued.
(c) Conclusion as to Statute
of Limitations
The face of the plaintiffs’ complaint alleged facts which
show that the claims against the six employees in their indi-
vidual capacities were barred by the applicable statute of
limitations. The plaintiffs’ complaint did not allege facts which
would avoid this bar. Therefore, the district court did not err in
sustaining the motion to dismiss filed by the six employees in
their individual capacities.
4. P laintiffs’ R emaining
Assignments of Error
The district court correctly determined that DHHS and the
DHHS employees in their official capacities had sovereign
immunity. It correctly determined that the guardian ad litem
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558 289 NEBRASKA REPORTS
was entitled to absolute immunity for conduct within the scope
of his role in the juvenile proceedings. It correctly dismissed
the six employees in their individual capacities because the
plaintiffs’ claims against them were barred by the statute of
limitations. The remaining 12 DHHS employees sued by the
plaintiffs were not parties to this action. Therefore, there are
no defendants remaining in the lawsuit that could be found
liable to the plaintiffs. As such, we do not need to address the
remaining assignments of error.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court that dismissed the plaintiffs’ complaint.
Affirmed.
Cassel, J., not participating.