Holloway v. State , 293 Neb. 12 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
03/11/2016 08:15 AM CST
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Nebraska A dvance Sheets
293 Nebraska R eports
HOLLOWAY v. STATE
Cite as 293 Neb. 12
Shamecka Holloway, appellant, v.
State of Nebraska et al., appellees.
___ N.W.2d ___
Filed March 11, 2016. No. S-15-280.
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: 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.
3. Statutes. Statutory interpretation presents a question of law.
4. Tort Claims Act: Liability. In cases where the facts are undisputed,
the application of the discretionary function exemption of the State Tort
Claims Act presents a question of law.
5. Pretrial Procedure: Appeal and Error. Decisions regarding discovery
are directed to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
6. Tort Claims Act: Liability. A state actor’s performance or nonper­
formance of a discretionary function cannot be the basis of liability
under the State Tort Claims Act.
7. Tort Claims Act. A court engages in a two-step analysis to determine
whether the discretionary function exception of the State Tort Claims
Act applies. First, the court must consider whether the action is a matter
of choice for the acting employee. If the court concludes that the chal-
lenged conduct involves an element of judgment, it must then determine
whether that judgment is of the kind that the discretionary function
exception was designed to shield.
8. Statutes: Words and Phrases. Generally, the word “shall” in a statute
is mandatory.
9. ____: ____. The word “may” when used in a statute will be given its
ordinary, permissive, and discretionary meaning unless it would mani-
festly defeat the statutory objective.
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10. Tort Claims Act. The purpose of the discretionary function exception is
to prevent judicial “second-guessing” of legislative and administrative
decisions grounded in social, economic, and political policy through the
medium of an action in tort.
11. ____. The discretionary function exception extends only to basic policy
decisions made in governmental activity, and not to ministerial activities
implementing such policy decisions.
12. ____. The discretionary function exception does not extend to the exer-
cise of discretionary acts at an operational level, where there is no room
for policy judgment.
13. ____. It is the nature of the conduct, rather than the status of the actor,
that governs whether the discretionary function exception applies in a
given case.
14. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss 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. Actions: Pleadings. In cases in which a plaintiff does not or cannot
allege specific facts showing a necessary element, the factual allega-
tions, taken as true, are nonetheless plausible if they suggest the exis-
tence of the element and raise a reasonable expectation that discovery
will reveal evidence of the element or claim.
16. ____: ____. A claim has facial plausibility when the plaintiff pleads fac-
tual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
17. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an
order dismissing a complaint, an 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.
18. Actions: Motions to Dismiss. For purposes of a motion to dismiss, a
court is not obliged to accept as true a legal conclusion couched as a
factual allegation, and threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.
19. Employer and Employee: Negligence: Liability. Under the doctrine
of respondeat superior, an employer is held vicariously liable for the
negligent acts of an employee committed while the employee was acting
within the scope of the employer’s business.
20. ____: ____: ____. If an employee is not liable, the employer cannot be
liable under the doctrine of respondeat superior.
21. Mental Health: Health Care Providers: Liability. A mental health
practitioner or psychologist is not liable for failing to warn of a patient’s
threatened violent behavior unless the patient has communicated to the
practitioner a serious threat of physical violence to a reasonably identifi-
able victim.
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22. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particu-
lar situation.
23. ____. There is no duty to control the conduct of a third person as to pre-
vent him or her from causing physical harm to another unless a special
relation exists between the actor and the third person which imposes a
duty upon the actor to control the third person’s conduct.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Terrence J. Salerno and Danny C. Leavitt for appellant.
Jonathan J. Papik and Andrew D. Strotman, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appellee
Correct Care Solutions.
Douglas J. Peterson, Attorney General, David A. Lopez, Ryan
S. Post, and Andrew T. LaGrone, Senior Certified Law Student,
for appellees State of Nebraska, Department of Correctional
Services, Robert Houston, Cameron White, and Randy Kohl.
Connolly, Miller-Lerman, Cassel, and Stacy, JJ., and
Bishop, Judge.
Cassel, J.
I. INTRODUCTION
After being shot by Nikko Jenkins shortly after his release
from prison, Shamecka Holloway sued the State of Nebraska
and others. She claimed that the State and one of its contrac-
tors were negligent in failing to provide Jenkins with adequate
mental health treatment and failing to seek mental health com-
mitment prior to his release. The district court granted the
defendants’ motions to dismiss without allowing Holloway to
proceed with discovery. Because whether to seek commitment
is discretionary, the State and its employees were entitled to
immunity from suit. And because Holloway failed to plead suf-
ficient facts to show that the contractor was liable, the court
did not err in dismissing the complaint. We affirm.
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II. BACKGROUND
Jenkins was sentenced to serve 21 years of incarcera-
tion with the Nebraska Department of Correctional Services
(Department). During Jenkins’ incarceration, he engaged in
numerous violent activities and other conduct which violated
the Department’s rules, policies, and procedures. He repeatedly
exhibited signs of a serious mental health problem and repeat-
edly requested treatment for such problem.
On July 30, 2013, after Jenkins had served 101⁄2 years of his
sentence, the State released him from incarceration. On August
24, Jenkins shot Holloway as she walked in her front yard in
Omaha, Nebraska. As a result, Holloway suffered permanent
damage and incurred medical bills.
Holloway sued the State; the Department; Robert Houston,
retired director of the Department; Cameron White, behav-
ioral health administrator for the Department; Correct Care
Solutions (CCS); Dr. Natalie Baker; and Dr. Randy Kohl (col-
lectively the appellees). She sued Houston, White, Baker, and
Kohl in their official and individual capacities.
According to the complaint, the State had a number of
responsibilities with respect to inmates. The responsibilities
included operating certain correctional facilities in Nebraska,
assessing and evaluating inmates in order to determine the
need for mental health commitment or other appropriate men-
tal health services, and providing adequate advance notice to
members of the public regarding the release of a dangerous
individual who threatened serious bodily harm to others.
CCS contracted with the State to provide medical serv­
ices for inmates incarcerated in the facility in Tecumseh,
Nebraska. CCS employees and agents evaluated and treated
Jenkins while he was held at the Tecumseh correctional facil-
ity. Baker, a physician who worked at the Tecumseh facility
under the direction of the Department and CCS, was largely
responsible for the mental health care and treatment given to
Jenkins. Holloway alleged that Baker personally interviewed
and evaluated Jenkins during Jenkins’ incarceration, that
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Baker failed to take any steps to have Jenkins evaluated at the
Lincoln Regional Center, and that Baker allowed Jenkins to
be released from prison. According to the complaint, Jenkins
told Baker and staff evaluators that he would hurt others upon
his release.
Holloway claimed that at all times alleged in her complaint,
Houston, White, Baker, and Kohl “were acting within the scope
and course of their employment with their various employers.”
She further alleged that those individuals “evidenced a deliber-
ate indifference to the mental health needs” of Jenkins “when
they were aware of facts which created the likelihood that
Jenkins, when released, presented a substantial risk of serious
bodily harm to the citizens of Nebraska, and specifically to
[Holloway].” Holloway claimed that the individual defendants
violated the Department’s policies or customs related to the
treatment, evaluation, and incarceration of inmates exhibiting
symptoms of a mental illness.
According to the complaint, Houston directed White to take
certain actions. At Houston’s direction, White was to reduce
the duration of an inpatient treatment program by 4 months and
change the clinical recommendations of hundreds of inmates
from inpatient to outpatient treatment. As a result, the recom-
mendation for Jenkins was changed from inpatient treatment
to outpatient treatment, which accelerated his release from
the Department. Holloway also alleged that the State failed
to properly calculate and/or apply “good time” for Jenkins in
ordering his release on July 30, 2013.
Holloway claimed that she suffered permanent mental and
emotional damages as a proximate result of the appellees’ acts
of omission and commission. She alleged that the State had a
duty to her and to the public in Omaha, insofar as the State
was aware that Jenkins posed a risk to all citizens of Omaha.
She claimed that the State knew or should have known of
the foreseeability of harm to her once Jenkins was released.
According to Holloway, Baker and CCS owed a duty to the
citizens of Nebraska to correctly evaluate and treat all inmates
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under their care and that they breached their duty in their treat-
ment and release of Jenkins.
On September 2, 2014, the appellees filed motions to dis-
miss. One motion was brought on behalf of the State, Houston
(official and individual capacities), White (official and indi-
vidual capacities), Baker (official capacity), and Kohl (official
and individual capacities). That motion asserted that the court
lacked subject matter jurisdiction over the case and that the
complaint failed to state a claim upon which relief could be
granted. The other motion to dismiss, brought by CCS, moved
to dismiss the complaint with prejudice for failure to state
a claim upon which relief could be granted. Holloway later
moved to dismiss Baker, alleging that Jenkins’ release was not
the result of negligence or lack of skill by Baker. The court
dismissed the complaint as to Baker.
On September 4 and 5, 2014, the appellees moved for a
protective order staying discovery pending resolution of the
motions to dismiss. According to the motions, the day after the
appellees filed their motions to dismiss, Holloway served 20
interrogatories, 220 requests for admission, and 25 requests for
production upon the appellees.
On March 11, 2015, the district court entered an order grant-
ing the remaining appellees’ motions to dismiss. The court
found Holloway’s motion to compel discovery to be moot,
because it granted the motions to dismiss with prejudice.
The district court first considered the claims against the
State and the remaining individual defendants. The court stated
that the allegations of the complaint against Houston, White,
and Kohl related only to the acts of those individuals within
the scope and course of their employment. Thus, it dismissed
the claims against them in their individual capacities. The
court next considered the applicability of the discretionary
function exception to the waiver of sovereign immunity con-
tained in the State Tort Claims Act (Act).1 The court reasoned
1
See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
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that the State had discretion in applying Jenkins’ “good time”
credits and in choosing not to civilly commit him, focusing on
the “may” language used in the good time and civil commit-
ment statutes.2 Because the court concluded that the discretion-
ary function exception applied, it dismissed the claims against
the State, the Department, Houston, White, and Kohl.
The district court also dismissed the claim against CCS.
The court found that Holloway failed to state a negligence
claim. The court observed that the only allegations in the com-
plaint pertaining to Jenkins’ being improperly released were
directed at Baker’s negligence in failing to properly treat and
evaluate Jenkins and that Holloway admitted Baker properly
discharged her duties with respect to Jenkins. The court noted
that Holloway did not allege a special relationship existed
between CCS and Jenkins and that CCS never exerted control
over Jenkins.
Holloway filed a timely appeal, and we granted the remain-
ing appellees’ petition to bypass the Nebraska Court of
Appeals.
III. ASSIGNMENTS OF ERROR
Holloway assigns that the district court erred in (1) grant-
ing the remaining appellees’ motions to dismiss, (2) failing to
allow her case to proceed with discovery, (3) finding that the
discretionary function exception was applicable, (4) determin-
ing that the individual employees exercised due care in the
performance of their duties, and (5) concluding that the dis-
missal of the direct action against Baker precluded an action
based upon respondeat superior against CCS.
IV. STANDARD OF REVIEW
[1-4] A district court’s grant of a motion to dismiss is
reviewed de novo.3 An appellate court reviews de novo whether
2
See Neb. Rev. Stat. §§ 83-1,107(3) (Cum. Supp. 2012) and 71-921(1)
(Reissue 2009).
3
Litherland v. Jurgens, 291 Neb. 775, 869 N.W.2d 92 (2015).
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a party is entitled to dismissal of a claim based on federal or
state immunity, drawing all reasonable inferences for the non-
moving party.4 Statutory interpretation presents a question of
law.5 In cases where the facts are undisputed, the application
of the discretionary function exemption of the Act presents a
question of law.6
[5] Decisions regarding discovery are directed to the discre-
tion of the trial court, and will be upheld in the absence of an
abuse of discretion.7
V. ANALYSIS
1. Discretionary Function Exception
Although Holloway’s complaint alleged that the State was
negligent in two respects, she limits her argument concerning
the applicability of the Act’s discretionary function exception
to a decision to seek a mental health commitment. Holloway’s
complaint alleged that the State was negligent in failing to
properly calculate and apply “good time” for Jenkins and in
failing to seek a mental health commitment. But she makes
no argument in her brief concerning the “good time” claim.
To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the
party’s brief.8 We therefore do not consider Holloway’s “good
time” claim.
(a) Overview
[6] The Act contains a discretionary function exception to
the waiver of sovereign immunity for certain claims. According
to the exception, the Act shall not apply to
4
Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 540,
855 N.W.2d 788 (2014).
5
Twin Towers Condo. Assn. v. Bel Fury Invest. Group, 290 Neb. 329, 860
N.W.2d 147 (2015).
6
D.K. Buskirk & Sons v. State, 252 Neb. 84, 560 N.W.2d 462 (1997).
7
Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
8
Stekr v. Beecham, 291 Neb. 883, 869 N.W.2d 347 (2015).
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[a]ny claim based upon an act or omission of an employee
of the state, exercising due care, in the execution of a
statute, rule, or regulation, whether or not such statute,
rule, or regulation is valid, or based upon the exercise or
performance or the failure to exercise or perform a dis-
cretionary function or duty on the part of a state agency
or an employee of the state, whether or not the discre-
tion is abused.9
Thus, a state actor’s performance or nonperformance of a
discretionary function cannot be the basis of liability under
the Act.10
[7] A court engages in a two-step analysis to determine
whether the discretionary function exception of the Act
applies.11 First, the court must consider whether the action
is a matter of choice for the acting employee. If the court
concludes that the challenged conduct involves an element of
judgment, it must then determine whether that judgment is of
the kind that the discretionary function exception was designed
to shield.12
(b) Application
The parties rely on different statutes of the Nebraska Mental
Health Commitment Act (MHCA)13 in support of their argu-
ments concerning whether the decision to seek a mental health
commitment of another is a matter of choice for the employee.
We examine both statutes.
[8] Holloway directs us to a statute that uses manda-
tory language and argues that the discretionary function
9
§ 81-8,219(1).
10
See Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994).
11
See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
(2012).
12
Id.
13
See Neb. Rev. Stat. §§ 71-901 to 71-963 (Reissue 2009 & Cum. Supp.
2014).
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exception is therefore inapplicable. Section 71-920(1) of the
MHCA states:
A mental health professional who, upon evaluation of a
person admitted for emergency protective custody under
section 71-919, determines that such person is mentally
ill and dangerous shall execute a written certificate as
provided in subsection (2) of this section not later than
twenty-four hours after the completion of such evaluation.
A copy of such certificate shall be immediately forwarded
to the county attorney.
Holloway contends that the statute’s use of the word “shall”
means there was no discretion regarding civil commitment.
Generally, the word “shall” in a statute is mandatory.14
But § 71-920 is inapplicable, because Jenkins was not
“admitted for emergency protective custody.” According to
the plain language of § 71-920(1), it applies only to a mental
health evaluation of a person already “admitted for emergency
protective custody.” Holloway did not plead that Jenkins was
ever in emergency protective custody.
A statute explaining the ways a person believed to be men-
tally ill and dangerous may be admitted into emergency pro-
tective custody does not help Holloway. She argues that under
§ 71-919(1) of the MHCA, “emergency protective custody”
includes a continuation of custody if the person is already
in custody, and she pled that Jenkins was in custody. The
pertinent part of the statute states that “[a] law enforcement
officer . . . may take such person into emergency protective
custody, cause him or her to be taken into emergency protec-
tive custody, or continue his or her custody if he or she is
already in custody.”15 But the following subsection of the stat-
ute demonstrates that Jenkins was not taken into emergency
protective custody. It provides in part that “[a] person taken
14
Fisher v. Heirs & Devisees of T.D. Lovercheck, 291 Neb. 9, 864 N.W.2d
212 (2015).
15
§ 71-919(1).
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into emergency protective custody under this section shall
be admitted to an appropriate and available medical facility
. . . .”16 But we cannot infer from Holloway’s complaint that
Jenkins was admitted to any medical facility. Although Jenkins
was in custody, there is no indication in Holloway’s complaint
that Jenkins was, while in custody, “admitted for emergency
protective custody.” Thus, § 71-920 does not apply.
[9] The statute upon which the State relies uses discretionary
language. Section 71-921(1) provides:
Any person who believes that another person is men-
tally ill and dangerous may communicate such belief to
the county attorney. The filing of a certificate by a law
enforcement officer under section 71-919 shall be suf-
ficient to communicate such belief. If the county attorney
concurs that such person is mentally ill and dangerous
and that neither voluntary hospitalization nor other treat-
ment alternatives less restrictive of the subject’s liberty
than inpatient or outpatient treatment ordered by a mental
health board is available or would suffice to prevent the
harm described in section 71-908, he or she shall file a
petition as provided in this section.
The first sentence of the statute uses the word “may.” The word
“may” when used in a statute will be given its ordinary, per-
missive, and discretionary meaning unless it would manifestly
defeat the statutory objective.17 Under the statute, whether to
communicate a belief that another person is believed to be
mentally ill and dangerous is a matter of choice. This satis-
fies the first step toward a determination that the discretionary
function exception applies. We now turn to the second step of
the analysis.
[10-13] The second step of the analysis requires that when
a statute involves an element of judgment, the judgment must
be of the kind that the discretionary function exception was
16
§ 71-919(2)(a).
17
Christiansen v. County of Douglas, 288 Neb. 564, 849 N.W.2d 493 (2014).
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designed to shield. The purpose of the discretionary function
exception is to prevent judicial “second-guessing” of legisla-
tive and administrative decisions grounded in social, eco-
nomic, and political policy through the medium of an action
in tort.18 The discretionary function exception extends only to
basic policy decisions made in governmental activity, and not
to ministerial activities implementing such policy decisions.19
The exception does not extend to the exercise of discretionary
acts at an operational level, where there is no room for policy
judgment.20 It is the nature of the conduct, rather than the status
of the actor, that governs whether the discretionary function
exception applies in a given case.21
The decision whether to report to the county attorney that
another person is thought to be mentally ill and dangerous is
a policy decision that the Legislature intended to shield from
liability. The State’s public policy with regard to mentally ill
and dangerous persons is that they be encouraged to obtain
voluntary treatment.22 But a report to the county attorney may
result in the initiation of mental health board proceedings.23
And after mental health board proceedings have occurred, a
mentally ill and dangerous person could be subject to involun-
tary custody and treatment.24 Emergency protective custody is
to be used under limited conditions.25
To demonstrate the Legislature’s differential treatment of
policy decisions, we contrast the policy of the MHCA with
the policy contained in the Child Protection and Family Safety
18
See Shipley v. Department of Roads, supra note 11.
19
See id.
20
See, id.; D.K. Buskirk & Sons v. State, supra note 6.
21
Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
22
See § 71-902.
23
See § 71-921.
24
See § 71-902.
25
See id.
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Act.26 As mentioned, under the MHCA, reporting to the county
attorney that another person is thought to be mentally ill and
dangerous is discretionary. But under the Child Protection
and Family Safety Act, the Legislature made mandatory the
reporting of child abuse or neglect by certain individuals.27 The
Legislature declared that it was the public policy of the State
to protect children who may be subject to abuse or neglect and
to require the reporting of child abuse or neglect in certain set-
tings.28 The different treatment of reporting under the two acts
is based on policy decisions.
Holloway relies upon Lemke v. Metropolitan Utilities Dist.29
in support of her argument that the discretionary function
exception does not protect a failure to warn of a danger that
is known to the government but unknown to the public. In
Lemke, a political subdivision which supplied natural gas
knew that certain connectors it had used could leak but did
not inform its customers of the problem. A customer of the
political subdivision sustained damages when a deteriorated
connector resulted in an explosion. We considered whether the
claim that the political subdivision failed to warn its customer
fell within the discretionary function exception and deter-
mined that
when (1) a governmental entity has actual or construc-
tive notice of a dangerous condition or hazard caused by
or under the control of the governmental entity and (2)
the dangerous condition or hazard is not readily apparent
to persons who are likely to be injured by the danger-
ous condition or hazard, the governmental entity has
a nondiscretionary duty to warn of the danger or take
26
See Neb. Rev. Stat. §§ 28-710 to 28-727 (Reissue 2008, Cum. Supp. 2014
& Supp. 2015).
27
See § 28-711(1).
28
See § 28-710.01.
29
Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80
(1993).
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other protective measures that may prevent injury as the
result of the dangerous condition or hazard. In such a
situation, a governmental entity’s failure to warn or take
other protective measures is not a planning-level decision
involving a social, economic, or political policy judgment
and, therefore, does not come within the discretionary
function exemption of the Political Subdivisions Tort
Claims Act.30
Importantly, we distinguished Lemke in Jasa v. Douglas
County.31 Jasa involved a negligence action against a county
health department after a child was infected with bacterial
meningitis at a daycare facility. The child, by and through
his parents, claimed that the county health department was
negligent in failing to determine that there had been a case
of bacterial meningitis at the daycare facility and in failing to
inform the child’s parents of the presence of the disease. We
observed that in Lemke, the political subdivision brought the
“injury-causing agent” to its customers, but that the county
health department did not bring the “injury-causing agent”
to the daycare facility.32 Thus, we stated that “while the sub-
division in Lemke had dominion, and in that sense control,
over the injury-causing agent, the county [health] department
did not.”33
Holloway’s situation is more like Jasa than Lemke, because
the State did not have control over Jenkins. Holloway con-
tends that the State “had information about Jenkins’s mental
illness and dangerousness that it did not disseminate to the
public” and that the State “is responsible for bringing the
injury-causing agent (Jenkins) to the public when it released
him into the Omaha community knowing the risk he posed
30
Id. at 647, 502 N.W.2d at 89.
31
Jasa v. Douglas County, supra note 10.
32
Id. at 962, 510 N.W.2d at 291.
33
Id.
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to the people of the community.”34 However, like in Jasa, the
State did not have dominion or control over Jenkins after he
was released. And because Jenkins had served his sentence, the
State’s options were limited to mandatorily discharging him or
civilly committing him. As we determined above, the decision
whether to commit Jenkins was a matter of judgment and, as
such, was a discretionary function.
We conclude that the district court correctly determined that
the discretionary function exception was applicable. Because
an exception to the waiver of sovereign immunity applied, the
court properly dismissed Holloway’s claims against the State,
the Department, Houston, White, and Kohl.
2. Claim Against CCS
The district court concluded that Holloway failed to state
a negligence claim against CCS. The court noted that the
claims in the complaint were directed toward Baker’s neg-
ligence in failing to properly treat and evaluate Jenkins, but
that Holloway had voluntarily dismissed Baker because Baker
adequately discharged her duties. The court reasoned that the
complaint failed to state a claim under general negligence
principles and failed to plead facts that would allow liability
against a mental health provider under Nebraska law.
[14-16] A complaint must meet certain requirements to
withstand a motion to dismiss. To prevail against a motion to
dismiss for failure to state a claim, a plaintiff must allege suf-
ficient facts, accepted as true, to state a claim to relief that is
plausible on its face.35 In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reason-
able expectation that discovery will reveal evidence of the
34
Brief for appellant at 15.
35
Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
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element or claim.36 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”37
[17,18] The principles concerning review of a motion to
dismiss are well known. When reviewing an order dismissing
a complaint, an 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.38 For purposes of a motion to dismiss, a court is
not obliged to accept as true a legal conclusion couched as a
factual allegation, and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.39
[19,20] Holloway’s negligent treatment claim against
CCS fails due to the dismissal of her claims against Baker.
Holloway alleged that Baker and CCS owed a duty to the
citizens of Nebraska to correctly evaluate and treat all inmates
under their care and that they breached their duty in their
treatment and release of Jenkins. Her negligent treatment
claim was premised upon treatment provided by Baker, who
worked for CCS. Under the doctrine of respondeat superior,
an employer is held vicariously liable for the negligent acts
of an employee committed while the employee was acting
within the scope of the employer’s business.40 But Holloway
subsequently moved to voluntarily dismiss Baker, because the
“actions by others in the Department . . . were not a result of
negligence or the lack of skill by . . . Baker.” If an employee
36
Id.
37
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009).
38
Litherland v. Jurgens, supra note 3.
39
Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236
(2013).
40
Kocsis v. Harrison, 249 Neb. 274, 543 N.W.2d 164 (1996).
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is not liable, the employer cannot be liable under the doc-
trine of respondeat superior.41 Because Holloway no longer
contended that Baker was negligent, CCS could not be liable
for any acts or omissions on Baker’s part under a theory of
respondeat superior.
Nor has Holloway stated a claim against CCS for negli-
gently releasing Jenkins. Holloway specifically alleged in her
complaint that the Department “is the State entity that was
responsible for the incarceration, treatment and release of . . .
Jenkins.” There is no allegation that CCS was responsible for
releasing Jenkins, nor can the same be reasonably inferred
from the facts pled.
[21] Mental health treatment providers are only liable for
failing to warn of a patient’s threatened behavior under certain
exceptional circumstances. The Mental Health Practice Act42
and the Psychology Practice Act43 contain limits on liability.
A mental health practitioner or psychologist is not liable for
failing to warn of a patient’s threatened violent behavior unless
the patient has communicated to the practitioner a serious
threat of physical violence to a reasonably identifiable victim.44
Specifically, the pertinent statute in the Mental Health Practice
Act states:
There shall be no monetary liability on the part of, and
no cause of action shall arise against, any person who
is licensed or certified pursuant to the Mental Health
Practice Act for failing to warn of and protect from a
patient’s threatened violent behavior or failing to predict
and warn of and protect from a patient’s violent behavior
except when the patient has communicated to the mental
health practitioner a serious threat of physical violence
41
Id.
42
See Neb. Rev. Stat. §§ 38-2101 to 38-2139 (Reissue 2008 & Cum. Supp.
2014).
43
See Neb. Rev. Stat. §§ 38-3101 to 38-3132 (Reissue 2008).
44
See §§ 38-2137(1) and 38-3132(1).
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against himself, herself, or a reasonably identifiable vic-
tim or victims.45
A statute in the Psychology Practice Act is substantially simi-
lar.46 And we have concluded that a similar limitation on liabil-
ity applies to psychiatrists.47
Liability cannot be established against CCS as a men-
tal health treatment provider because Holloway was not a
reasonably identifiable victim. Holloway alleged that Jenkins
“presented a substantial risk of serious bodily harm to the
citizens of Nebraska, and specifically to [her].” But she also
alleged that “the risk of bodily harm to . . . Holloway and to
other members of the public in Omaha . . . was great once . . .
Jenkins informed . . . agents of the [State] that he intended to
cause bodily harm and injury to persons at random.” Holloway
alleged that CCS owed a duty to her and to the public in
Omaha insofar as it was aware that Jenkins posed a risk to all
citizens of Omaha. Holloway, a resident of Omaha, alleged
that all citizens of Omaha were potential victims. But all
citizens of Omaha—a city of the metropolitan class48 with
300,000 or more inhabitants49—cannot constitute “a reasonably
identifiable victim or victims.” And Holloway did not allege
that Jenkins ever communicated a serious threat of physical
violence against her. Thus, CCS cannot be liable as a mental
health care provider under Nebraska law.
[22,23] Further, CCS could not be liable unless it owed
Holloway a legal duty. The question whether a legal duty exists
for actionable negligence is a question of law dependent on the
facts in a particular situation.50 “[T]here is no duty to control
45
§ 38-2137(1).
46
See § 38-3132(1).
47
See Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006).
48
See City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792
(2007).
49
See Neb. Rev. Stat. § 14-101 (Reissue 2012).
50
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).
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the conduct of a third person as to prevent him from caus-
ing physical harm to another unless ‘a special relation exists
between the actor and the third person which imposes a duty
upon the actor to control the third person’s conduct.’”51 An
actor in a special relationship with another owes a duty of rea-
sonable care to third persons with regard to risks posed by the
other that arise within the scope of the relationship.52
The relationship necessary for liability is a custodial rela-
tionship. In Bartunek v. State,53 we looked to the Restatement
(Second) of Torts, which provided that “‘[o]ne who takes
charge of a third person whom he knows or should know to be
likely to cause bodily harm to others if not controlled is under
a duty to exercise reasonable care to control the third person
to prevent him from doing such harm.’” We stated that the
“takes charge” language referred to a custodial relationship. In
the context of the relationship between a probation officer and
a probationer, we stated that “[a]bsent the legal responsibility
of custodial or round-the-clock visual supervision, there is no
logical basis for imposing an ongoing duty on a probation offi-
cer to prevent illegal conduct by a probationer.”54
CCS did not owe Holloway a legal duty, because it did
not have a special relationship with Jenkins. Any relation-
ship that CCS had with Jenkins was more attenuated than
the relationship between a probation officer and probationer.
As alleged by Holloway, CCS provided medical services
for inmates by virtue of a contract with the State, and its
employees evaluated and treated Jenkins. Holloway did not
allege that Jenkins was ever in CCS’ custody. Nor did she
allege that Jenkins was being supervised by CCS at the time
51
Id. at 1033, 809 N.W.2d at 492 (quoting Restatement (Second) of Torts
§ 315(a) (1965)).
52
Ginapp v. City of Bellevue, supra note 50.
53
Bartunek v. State, 266 Neb. 454, 462, 666 N.W.2d 435, 441 (2003)
(quoting Restatement (Second) of Torts § 319 (1965)).
54
Id. at 463, 666 N.W.2d at 442.
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he injured Holloway. Holloway’s complaint does not plead
facts showing a special relationship that would allow CCS to
be held liable.
Because Holloway failed to plead facts to allow an inference
that CCS was liable for the harm to Holloway, the district court
did not err in dismissing the complaint as to CCS for failure to
state a claim.
3. Discovery
Holloway’s claim that she should have been allowed to pur-
sue discovery is without merit. Because the district court did
not err in dismissing Holloway’s complaint, it did not abuse its
discretion in finding Holloway’s motion to compel discovery
to be moot.
VI. CONCLUSION
We conclude that the decision whether to report to the
county attorney that another person is thought to be mentally
ill and dangerous falls under the discretionary function excep-
tion; thus, an exception to the State’s waiver of sovereign
immunity applied. We further conclude that Holloway failed
to plead facts to state a claim against CCS. Accordingly, the
district court did not err in dismissing Holloway’s complaint,
nor did it abuse its discretion in finding her motion to compel
discovery to be moot. We affirm.
A ffirmed.
Heavican, C.J., and Wright, J., not participating.