D.M. v. State ( 2015 )

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Decisions of the Nebraska Court of A ppeals
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D.M. v. STATE
Cite as 23 Neb. App. 17D.M., appellant, v. State of Nebraska
et al., appellees.
___ N.W.2d ___
Filed July 14, 2015. No. A-14-376.
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 plain-
tiff’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 obliga-
tion to reach its conclusion on whether a claim is precluded by exemp-
tions set forth in the State Tort Claims Act independent from the conclu-
sion 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. ____: ____. A suit generally may not be maintained directly against an
agency or department of the State, unless the State has waived its sover-
eign 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
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Cite as 23 Neb. App. 17implications from the text as will leave no room for any other reason-
able 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 nomi-
nal 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 offi-
cials 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 individ­
ually, 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 neg-
ligent or wrongful act or omission of any employee of the state, while
acting within the scope of his or her office or employment, under cir-
cumstances 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
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D.M. v. STATE
Cite as 23 Neb. App. 17assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interfer-
ence with contract rights, commonly referred to as the intentional
tort exception.
21. Public Officers and Employees: Immunity: Negligence. To deter-
mine 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 employ-
ment relation.
22. ____: ____: ____. 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 super-
visors 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 reason-
able construction.
24. Public Officers and Employees: Immunity. A plaintiff cannot avoid
the reach of the intentional tort exception by framing his or her com-
plaint 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 sover-
eign 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 sover-
eign immunity.
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Cite as 23 Neb. App. 1729. 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.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Julie A. Jorgensen, of Morrow, Willnauer, Klosterman &
Church, L.L.C., for appellant.
Jon Bruning, Attorney General, and David A. Lopez for
appellee.
Irwin, R iedmann, and Bishop, Judges.
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Cite as 23 Neb. App. 17Bishop, Judge.
INTRODUCTION
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.
BACKGROUND
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. On
December 10, 2011, Hansen approached D.M. in the cafete-
ria with the proposition to meet in the chapel to engage in
sexual activity. D.M. attempted to avoid and deflect Hansen’s
sexual advances. Hansen later approached D.M. and advised
that there were cameras in the chapel so they should meet in
the commons area of the OCC. After D.M. again attempted
to deflect Hansen’s sexual advances, Hansen spoke to D.M.
regarding his parole date, which D.M. took as a threat
to his future release based on previous encounters with
Hansen where he had advised D.M. that if he did not comply
with Hansen’s sexual requests, Hansen would cause D.M.
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Cite as 23 Neb. App. 17or his friends to lose “good time” or be placed in discipli­
nary segregation.
D.M. reluctantly met with Hansen in the commons area
based on his threats, at which point Hansen shoved D.M. into
a wall and forcibly kissed him, pushed him down to his knees,
and ejaculated into D.M.’s mouth. D.M. preserved Hansen’s
bodily fluids in a napkin. D.M. then orally reported the inci-
dent to Brown, D.M.’s unit manager. D.M. also filled out a
formal complaint and requested a grievance form.
D.M. alleged that immediately after the incident and as a
result of his reporting Hansen’s sexual assault, he was placed
in disciplinary segregation, where he had limited telephone
privileges and no contact with other inmates. Prison guards
were instructed not to converse with him while he was in
segregation, and D.M. was instructed by representatives of the
defendants not to speak to anyone about the sexual assault.
D.M. was subjected to disciplinary segregation for over 30
days while the investigation was conducted. D.M. requested
that he be “transferred to another medium security facility, but
was told there was no room at any other facility.”
D.M. alleged that Doe visited D.M. on numerous occasions,
advising him that he would get more jail time for lying and
that he was “ruining” Hansen’s life. During the investigation,
Hansen was permitted to work for a period of time and sub-
sequently was given paid leave while D.M. remained in soli-
tary confinement.
DNA testing confirmed that the bodily fluids collected by
D.M. were Hansen’s; Hansen subsequently pled guilty to sex-
ual assault. When the investigation was complete, D.M. alleges
he was “transferred from a minimum security facility to a
maximum security facility.” (We note that D.M.’s complaint
is inconsistent as to whether he was in a minimum or medium
security facility at the time of the assault.)
During the investigation, D.M. repeatedly requested coun-
seling services; after “numerous” requests, and at the con-
clusion of the investigation, D.M. was given two therapy
sessions after his transfer. D.M. continued to see a therapist
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Cite as 23 Neb. App. 17subsequent to his release; suffers from intimacy issues, depres-
sion, severe anxiety, and severe emotional distress; has been
prescribed medication; and is expected to need therapy and
psychiatric treatment.
D.M. alleged nine causes of action arising out of the above
facts: (1) negligent hiring/supervising of Hansen, (2) failure
to protect, (3) retaliation, (4) respondeat superior, (5) denial
of equal protection, (6) cruel and unusual punishment, (7)
intentional infliction of emotional distress as to Hansen, (8)
intentional infliction of emotional distress as to all the defend­
ants, and (9) negligent infliction of emotional distress as to all
the defendants. D.M. sought damages, reasonable attorney fees,
permission to assert a claim for punitive damages, and further
relief as may be ordered. D.M. invoked jurisdiction pursuant to
the State Tort Claims Act (STCA), Neb. Rev. Stat. §§ 81-8,209
to 81-8,235 (Reissue 2008, Cum. Supp. 2010 & Supp. 2011);
Neb. Rev. Stat. § 20-148 (Reissue 2012); the civil rights laws
of the United States, including 42 U.S.C. § 1983 (2012); and
the Nebraska Constitution.
On January 30, 2014, Houston, in both his official and indi-
vidual capacities; the State; the DCS; and Doe, Brown, and
Hansen, in their official capacities only, filed a motion to dis-
miss pursuant to Neb. Ct. R. of Pldg. § 6-1112(b)(6) for failure
to state a claim, and also that “the Defendants are protected by
sovereign immunity.”
A hearing on the motion was held on February 25, 2014. Our
record does not contain the bill of exceptions from this hearing.
The court entered an order on March 31. The court found:
[T]he alleged rape of [D.M.] by . . . Hanson [sic] was
an assault as [are] all of the causes of action set forth in
his complaint and, thus, the intentional tort exception of
[§] 81-8,219(4) applies and bars [D.M.’s] action against
the Defendants. The Court further finds that the com-
plaint cannot be amended to state a cause of action and,
therefore, that [D.M.’s] complaint should be dismissed
with prejudice.
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Cite as 23 Neb. App. 17D.M. filed a “Motion for Reconsideration” on April 11,
2014. He requested that the court reconsider its dismissal of
all causes of action against all the defendants because sev-
eral of his claims were based on retaliation for reporting the
assault and because several claims were brought against “State
actors” in their individual capacities under Nebraska’s civil
rights statute and 42 U.S.C. § 1983. He further argued that
his claims under § 1983 should not be affected by state law
immunity because it is preempted by federal law. The court
overruled D.M.’s motion on April 29.
D.M. timely filed this appeal.
ASSIGNMENTS OF ERROR
D.M. assigns seven errors on appeal, which we summarize
as follows: The district court erred in dismissing his entire
complaint with prejudice, without leave to amend, based on
its conclusion that all of his claims were barred by sover-
eign immunity.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo. Brothers v. Kimball Cty. Hosp., 289 Neb.
879, 857 N.W.2d 789 (2015). When reviewing an order dis-
missing 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. Id.[3,4] Whether the allegations made by a plaintiff present a
claim that is precluded by exemptions set forth in the STCA
is a question of law. Hall v. County of Lancaster, 287 Neb.
969, 846 N.W.2d 107 (2014). An appellate court has an obliga-
tion to reach its conclusion on whether a claim is precluded
by exemptions set forth in the STCA independent from the
conclusion reached by the trial court. See Hall v. County of
Lancaster, supra.
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Cite as 23 Neb. App. 17ANALYSIS
D.M. filed tort and constitutional claims against the State
and the DCS and against Houston, Doe, Brown, and Hansen,
in their individual and official capacities, seeking monetary
damages. The district court dismissed D.M.’s claims against
all the defendants on the basis of sovereign immunity, con-
cluding that all his asserted claims arose from the sexual
assault and that sovereign immunity is not waived for claims
arising out of such an intentional tort. However, D.M.’s
complaint asserted two distinct set of facts: (1) the assault
and (2) D.M.’s reporting of the assault and the retaliatory
conduct of various defendants in response to his report.
Additionally, besides the various tort claims alleged by D.M.,
he also asserted constitutional and civil rights claims, includ-
ing First Amendment retaliation, denial of equal protection
based upon his disciplinary segregation upon reporting, and
Eighth Amendment claims related to the assault and his treat-
ment after reporting.
[5-10] We begin by reviewing the general principles of sov-
ereign immunity upon which the district court relied to dismiss
all claims against all the defendants. 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. SID No. 1 v. Adamy, 289 Neb.
913, 858 N.W.2d 168 (2015). A suit against a state agency is
a suit against the State and is subject to sovereign immunity.
Anthony K. v. Nebraska Dept. of Health & Human Servs.,
289 Neb. 540, 855 N.W.2d 788 (2014) (Anthony II). A suit
generally may not be maintained directly against an agency
or department of the State, unless the State has waived its
sovereign immunity. Id. Statutes authorizing suits against the
State are to be strictly construed because such statutes are in
derogation of the State’s sovereign immunity. SID No. 1 v.
Adamy, supra. 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
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Cite as 23 Neb. App. 17room for any other reasonable construction. Id. This principle
has been said to create a presumption against waiver. Dean v.
State, 288 Neb. 530, 849 N.W.2d 138 (2014).
[11-14] Sovereign immunity has potential applicability to
suits brought against state officials in their official capaci-
ties. See Anthony II, supra. Official-capacity suits generally
represent only another way of pleading an action against an
entity of which an officer is an agent. Id. 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. See
id. Unless waived, sovereign immunity bars a claim for money
even if the plaintiff has named individual state officials as
nominal defendants. See id.
[15,16] The STCA waives the State’s sovereign immunity
with respect to certain, but not all, types of tort actions. See
Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005). In
other words, the STCA allows lawsuits against the State and
public officials for certain tortious conduct, but not all. We
first consider D.M.’s tort claims against the various defend­
ants, followed by a review of his constitutional claims.
Tort Claims Against State, DCS,
and Named I ndividuals
[17,18] In the absence of a waiver, sovereign immunity
bars all suits against the State and state agencies, regard-
less of the relief sought. See Anthony K. v. State, 289 Neb.
523, 855 N.W.2d 802 (2014) (Anthony I). The DCS is a state
agency. See Perryman v. Nebraska Dept. of Corr. Servs.,
253 Neb. 66, 568 N.W.2d 241 (1997), disapproved on other
grounds, Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373(1999). Sovereign immunity also has potential applicability
to suits brought against state officials in their official capaci-
ties; official-capacity suits generally represent only another
way of pleading an action against an entity of which an
officer is an agent. See Anthony II, supra. In an action for
the recovery of money, the State is the real party in interest
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Cite as 23 Neb. App. 17because a judgment against a public servant in his official
capacity imposes liability on the entity that he represents.
See id. Unless waived, sovereign immunity bars a claim for
money even if the plaintiff has named individual state offi-
cials as nominal defendants. See id. Further, 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 STCA still applies and provides immunity, unless such
has been waived. Bojanski v. Foley, 18 Neb. App. 929, 798
N.W.2d 134 (2011).
D.M.’s complaint contains tort claims against Houston, Doe,
and Brown, in both their official and individual capacities.
However, while D.M. purports to have brought his tort claims
against those individuals in their individual capacities, in look-
ing at D.M.’s complaint, it is clear that his tort allegations on
the part of Houston, Doe, and Brown occurred while they were
acting within the scope of their employment with the DCS,
and therefore, the tort claims against those defendants all fall
within the STCA. See Bojanski v. Foley, supra.
[19,20] As previously noted, the STCA waives the State’s
sovereign immunity with respect to certain, but not all, types
of tort actions. Johnson v. State, supra. The STCA waives the
State’s sovereign immunity for tort claims against the State
for money only on account of damage to or loss of prop-
erty 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. See § 81-8,210(4). However,
the State’s sovereign immunity is not waived with respect
to the types of claims listed in § 81-8,219. Johnson v. State,
270 Neb. 316, 700 N.W.2d 620 (2005). Among the claims
for which sovereign immunity is not waived are claims “aris-
ing out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, mis-
representation, deceit, or interference with contract rights.”
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Cite as 23 Neb. App. 17§ 81-8,219(4). This subsection is commonly referred to as the
“intentional tort exception.” See Britton v. City of Crawford,
282 Neb. 374, 803 N.W.2d 508 (2011). The district court
in the instant case concluded that all of D.M.’s claims were
barred by this exception.
[21-23] To determine whether a claim arises from an inten-
tional 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 employ-
ment relation. Johnson v. State, supra (quoting Sheridan v.
United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d
352 (1988) (Kennedy, J., concurring in judgment)). If the
allegation is that the government was negligent in the supervi-
sion or selection of the employee and that the intentional tort
occurred as a result, the intentional tort exception bars the
claim. Id. 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. Id. To allow
such claims would frustrate the purposes of the exception. Id.A waiver of sovereign immunity is found only where stated by
the most express language of a statute or by such overwhelm-
ing implication from the text as will allow no other reason-
able construction. Stick v. City of Omaha, 289 Neb. 752, 857
N.W.2d 561 (2015).
In Johnson v. State, supra, a female inmate at the OCC
alleged that she was sexually assaulted by an employee of
the DCS assigned to work at the OCC. She filed suit against
the State, the DCS, and the OCC, alleging two theories of
recovery: negligence and intentional infliction of emotional
distress. With respect to her negligence claims, the female
inmate alleged the defendants were negligent in violating state
jail standards with respect to the housing of female inmates,
failing to properly hire and supervise its employees, and fail-
ing to properly discipline the employee who perpetrated the
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Cite as 23 Neb. App. 17sexual assault. Our Supreme Court concluded that each of
the above causes of action was based upon the employment
relationship between her alleged assailant and the defendants
and that thus, the intentional tort exception of § 81-8,219(4)
applied to bar all her causes of action.
[24] D.M. does not dispute that his claims for negligent
hiring/supervising and respondeat superior are barred by sov-
ereign immunity, because both tort claims arise out of the
intentional sexual assault, for which the State has not waived
its sovereign immunity. See § 81-8,219(4). See, also, Johnson
v. State, 270 Neb. 316, 700 N.W.2d 620 (2005). D.M.’s cause
of action for failure to protect alleges that the “Defendants”
breached their duty to protect him from the sexual assault;
however, such a tort claim, although framed as an allegation of
negligence, nevertheless is a claim “arising out of assault [or]
battery.” § 81-8,219(4). Our Supreme Court has stated:
“‘[A plaintiff] cannot avoid the reach of [the inten-
tional 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. . . .’”
Britton v. City of Crawford, 282 Neb. 374, 384-85, 803
N.W.2d 508, 517 (2011) (emphasis in original) (quoting
Johnson v. State, supra). This provision covers claims that
sound in negligence but stem from a battery committed by
a government employee. See Britton v. City of Crawford,
supra. Accordingly, D.M.’s tort claims for negligent hiring/
supervising, respondeat superior, and failure to protect were
properly dismissed against the State and the DCS; Houston,
Doe, and Brown; and Hansen, in his official capacity, on the
basis of sovereign immunity because such claims arose from
the sexual assault.
[25] However, D.M.’s claims for intentional and negligent
infliction of emotional distress differ from the above claims in
that they are not based on claims of emotional distress result-
ing from or arising out of the sexual assault; rather, D.M.
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Cite as 23 Neb. App. 17bases these two claims on his allegations that he was punished
and retaliated against by different OCC employees for report-
ing the assault and that he was placed in solitary confinement
and subjected to threats of legal action or prosecution for
perjury for making his report. D.M.’s claims in this regard
therefore do not arise from the assault, but, rather, from his
reporting of the assault and the resulting retaliatory conduct
by OCC employees, which conduct was separate and distinct
from Hansen’s assault of D.M. We therefore conclude that the
district court erred in dismissing D.M.’s claims for intentional
and negligent infliction of emotional distress on the basis of
sovereign immunity, since these claims arose from D.M.’s
reporting of the assault rather than the assault itself. As our
record does not reflect that the State raised or argued any
other exception contained in § 81-8,219 in the district court
below, our review is limited solely to whether D.M.’s claims
are barred by the intentional tort exception to the STCA. See
Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997) (hold-
ing that exceptions found in § 81-8,219 to general waiver of
tort immunity are matters of defense which must be pled and
proved by State).
Finally, D.M. alleged a separate cause of action against
Hansen for intentional infliction of emotional distress as a
result of his sexual assault of D.M. Such a claim against
Hansen in his individual capacity would clearly not be gov-
erned by the STCA, as sexual assault would not fall within
the scope of Hansen’s employment with the DCS. The district
court therefore erred in dismissing this claim against Hansen in
his individual capacity as barred by sovereign immunity.
In sum, we affirm the district court’s dismissal of D.M.’s
tort claims for negligent hiring/supervising, failure to pro-
tect, and respondeat superior against the State and the DCS;
Houston, Doe, and Brown, in both their individual and official
capacities; and Hansen, in his official capacity, on the basis
that such claims arose out of Hansen’s sexual assault and were
therefore barred by sovereign immunity. See § 81-8,219(4).
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Cite as 23 Neb. App. 17We further conclude that the district court erred in dismiss-
ing D.M.’s claim against Hansen in his individual capacity
for intentional infliction of emotional distress. Finally, we
conclude that D.M.’s tort claims for intentional and negligent
infliction of emotional distress were based on separate wrong-
ful conduct subsequent to D.M.’s report, which conduct did
not arise out of Hansen’s sexual assault within the meaning
of § 81-8,219(4), and that the district court therefore erred in
dismissing those two claims against the above defendants on
that basis.
Constitutional Claims Against State,
DCS, and Named Individuals in
Their Official Capacities
D.M.’s complaint contains three constitutional claims for
which he seeks monetary damages under 42 U.S.C. § 1983 and
§ 20-148: 1st Amendment retaliation, 5th and 14th Amendment
equal protection and due process, and 8th Amendment cruel
and unusual punishment. We conclude that all of his con-
stitutional claims are barred by sovereign immunity against
the State, the DCS, and the named individuals in their offi-
cial capacities.
[26-28] Nebraska has not waived its sovereign immunity
with regard to § 1983 suits brought against it. Anthony I.
Neither did the enactment of § 1983 abrogate the State’s 11th
Amendment immunity by creating a remedy against the State.
Anthony I. Likewise, § 20-148 is a procedural statute designed
to allow plaintiffs to bypass administrative procedures in dis-
crimination actions against private employers; it does not oper-
ate to waive sovereign immunity. See Potter v. Board of
Regents, 287 Neb. 732, 844 N.W.2d 741 (2014). As such, there
is no waiver of sovereign immunity by the State with respect
to D.M.’s constitutional violation claims against the State, the
DCS, or the named individuals in their official capacities, and
the district court therefore properly dismissed those claims on
the basis of sovereign immunity.
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Cite as 23 Neb. App. 17Constitutional Claims Against
Named Individuals in Their
Individual Capacities
[29-31] The district court dismissed all of D.M.’s constitu-
tional claims under 42 U.S.C. § 1983 against the named indi-
viduals—Houston, Doe, Brown, and Hansen—in their indi-
vidual capacities on the basis that such claims were barred
by sovereign immunity. However, 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. Anthony II. 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 offi-
cials. Id. Personal-capacity suits seek to impose individual
liability upon a government officer for actions taken under
color of state law. Id. As such, the district court erred when
it dismissed D.M.’s constitutional claims against the named
defendants in their individual capacities on the basis of sover-
eign immunity.
[32] The State claims that this court should nevertheless
affirm the dismissal of D.M.’s claims against Doe and Brown
in their individual capacities because “[D.M.] served only
Houston and Hansen individually.” Brief for appellees at 15.
At oral argument to this court, the State argued that there was
“never a live suit” against Brown or Doe in their individual
capacities, because D.M. did not serve them individually.
D.M. filed his complaint on December 10, 2013, and the dis-
trict court dismissed all of his claims, with prejudice, includ-
ing his claims against all named individuals in their individual
capacities, on March 31, 2014, approximately 31⁄2 months after
D.M. filed his complaint. Pursuant to Neb. Rev. Stat. § 25-217(Reissue 2008), 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. If D.M.
had not properly served the named defendants individually
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Cite as 23 Neb. App. 17as the State claims on appeal, pursuant to § 25-217, D.M.
still had 21⁄2 months to effectuate such service. Moreover, our
record does not reflect the manner in which D.M.’s complaint
was served, and as such, our record is insufficient to review
the State’s claimed deficient service.
[33,34] The State also contends that although the trial court
may have mistakenly dismissed D.M.’s claims under § 1983
against Houston in his individual capacity upon a finding that
sovereign immunity barred the claims, this court should nev-
ertheless affirm the district court’s dismissal because Houston
is shielded by qualified immunity. Qualified immunity is an
affirmative defense which must be affirmatively pleaded. See
Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003). It is
a longstanding rule that we will not consider an issue on appeal
that was not presented to or passed upon by the trial court.
Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014).
Because the affirmative defense of qualified immunity was not
raised in any of the pleadings below and was not presented to
or passed upon by the trial court, we decline to do so for the
first time on appeal.
[35,36] However, we do agree with the State that D.M.
has failed to state a constitutional claim pursuant to § 1983
with respect to Houston in his individual capacity. The stan-
dard by which a supervisor is held liable under § 1983 in his
or her individual capacity for the actions of a subordinate is
extremely rigorous. See Potter v. Board of Regents, 287 Neb.
732, 844 N.W.2d 741 (2014). The plaintiff must establish that
the supervisor personally participated in the unconstitutional
conduct or was otherwise the moving force of the viola-
tion by authorizing, approving, or knowingly acquiescing in
the unconstitutional conduct. Id. D.M. has alleged no facts
in his complaint sufficient to establish Houston’s personal
liability under § 1983, and therefore, the district court did
not err in dismissing D.M.’s constitutional claims against
Houston individually.
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Cite as 23 Neb. App. 17CONCLUSION
In summary, as to the tort claims, we affirm the district
court’s dismissal of D.M.’s tort claims for negligent hiring/
supervising, failure to protect, and respondeat superior against
the State and the DCS; Houston, Doe, and Brown, in both
their individual and official capacities; and Hansen, in his
official capacity. We reverse, and remand for further proceed-
ings D.M.’s tort claims for intentional and negligent inflic-
tion of emotional distress against the State and the DCS and
against Houston, Doe, and Brown, because those claims are
alleged to have arisen out of D.M.’s reporting of the sexual
assault and not the assault itself. We reverse, and remand for
further proceedings D.M.’s claim for intentional infliction of
emotional distress against Hansen.
As to the constitutional claims, we affirm the dismissal
of D.M.’s constitutional claims against the State, the DCS,
and the named individuals in their official capacities, and
against Houston in both his official and individual capacity. We
reverse, and remand for further proceedings D.M.’s remaining
constitutional claims against Brown, Doe, and Hansen in their
individual capacities.
A ffirmed in part, and in part reversed and
remanded for further proceedings.